UST Golden Notes - Civil Procedure ( Remedial Law General Principles Included)

GENERAL PRINCIPLES I. GENERAL PRINCIPLES

7.

Court decisions (Herrera, Vol. I, p. 2, 2007 ed.)

A. CONCEPT OF REMEDIAL LAW Q: What is procedural rule? Q: What is the concept of remedial law? A: It is a branch of public law, which prescribes the procedural rules to be observed in litigations, whether civil, criminal, or administrative, and in special proceedings, as well as the remedies or reliefs available in each case. (2006 Bar Question) Q: What is the importance of remedial law? A: It plays a vital role in the administration of justice. It lies at the very core of procedural due process, which means a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, and contemplates an opportunity to be heard before judgment is rendered (Herrera, Vol. I, p. 1, 2007 ed.) B. SUBSTANTIVE LAW AS DISTINGUISHED FROM REMEDIAL LAW

A: Procedural rule is the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for their disregard or infraction. Note: If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as substantive matter; but if it operates as a means of implementing an existing right, then the rule deals merely with procedure (Fabian v. Desierto, G.R. No. 129742, Sept. 16, 1998).

Q: How are remedial laws implemented in our system of government? A: They are implemented through the judicial system, including the prosecutory service of courts and quasi-judicial agencies. (2006 Bar Question)

Q: Distinguish substantive and remedial law

C. RULE-MAKING POWER OF THE SUPREME COURT

A:

1. LIMITATIONS ON THE RULE-MAKING POWER OF THE SUPREME COURT

Substantive Law Remedial Law Part of the law which Refers to the legislation creates, defines or providing means or regulates rights concerning methods whereby causes life, liberty or property or of action may be the powers of agencies or effectuated, wrongs instrumentalities for the redressed and relief administration of public obtained (also known as affairs. Adjective Law). Does not create vested Creates vested rights. rights Retroactive in Prospective in application. application The Supreme Court is expressly empowered to Cannot be enacted by the promulgate procedural Supreme Court. rules. (2006 Bar Question)

Q: What are the principal sources of remedial law? A: 1. 2.

3. 4. 5. 6.

Constitution Different laws creating the judiciary, defining and allocating jurisdiction to courts of different levels Procedural laws and rules promulgated by the Supreme Court Circulars Administrative orders Internal rules

Q: What are the limitations on the rule-making power of the Supreme Court? A: 1.

2. 3.

It shall provide a simplified and inexpensive procedure for the speedy disposition of cases. The rules must be uniform for all the courts of the same grade. The rules must not diminish, increase or modify substantive rights (Cruz, Philippine Political Law, p. 281, 2002 ed.)

2. POWER OF THE SUPREME COURT TO AMEND AND SUSPEND PROCEDURAL RULES Q:

May the Supreme Court suspend the application of the Rules of Court and exempt a case from its operation?

A: Yes. In the interest of just and expeditious proceedings, the Supreme Court may do so because the Rules were precisely adopted with the primary objective of enhancing fair trial and expeditious justice. (Republic v. CA, G.R. No. L-31303, May 31, 1978)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 D. NATURE OF PHILIPPINE COURTS 1. MEANING OF A COURT Q: What is a court?

Q: Distinguish Courts of general jurisdiction from special jurisdiction.

A: It is an organ of the government, belonging to the judicial department, whose function is the application of laws to controversies brought before it and the public administration of justice. (Black’s Law Dictionary) 2. COURT AS DISTINGUISHED FROM A JUDGE Q: Distinguish court from a judge Court Entire body in which the judicial power is vested May exist without a present judge Disqualification of a judge does not affect the court

Judge Only an officer or member of the court There may be a judge without a court May be disqualified

3. CLASSIFICATION OF PHILIPPINE COURTS Q: What are the classifications of Philippine courts? A: 1.

2.

3.

5. COURTS OF GENERAL AND SPECIAL JURISDICTION

Regular courts (Supreme Court, Court of Appeals, Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts , Municipal Circuit Trial Courts) Special courts (Sandiganbayan, Court of Tax Appels, Shari'a District Courts, Shari'a Circuit Courts) Quasi-courts or Quasi-judicial agencies (e.g Civil Service Commission)

4. COURTS OF ORIGINAL AND APPELLATE JURISDICTION

A: Courts of General jurisdiction Takes cognizance of all cases , civil or criminal, of a particular nature, or courts whose judgment is conclusive until modified or reversed on direct attack, and who are competent to decide on their own jurisdiction

6. CONSTITUTIONAL AND STATUTORY COURTS Q: Distinguish constitutional court from statutory court. A: Constitutional Court Created by the constitution e.g. SC Cannot be abolished by Congress without amending the Constitution

Q: Distinguish Courts of law from equity. A: Courts of Law Any tribunal duly administering the laws of the land

Courts of Equity Any tribunal administering justice outside the law, being ethical rather than jural and belonging to the sphere of morals rather than of law. It is grounded on the precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law. (Herrera, Vol. I, p. 18, 2007 ed.)

Decides a case according to what the promulgated law is

Adjudicates a controversy according to the common precepts of what is right and just without inquiring into the terms of the statutes

A:

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Courts of Appellate jurisdiction Superior Courts reviewing and deciding cases previously decided by a lower court

Statutory Court Created by law e.g. CTA May be abolished by Congress by just simply repealing the law which created those courts

7. COURTS OF LAW AND EQUITY

Q: Distinguish Courts of original jurisdiction from Courts of appellate jurisdiction.

Courts of Original jurisdiction Courts exercising jurisdiction in the first instance

Courts of Special jurisdiction Takes cognizance of special jurisdiction for a particular purpose, or are clothed with special powers for the performance of specified duties, beyond which they have no authority of any kind

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

GENERAL PRINCIPLES Q: What are courts of record? A: These are courts whose proceedings are enrolled and which are bound to keep written records of all trials and proceedings handled by them. R.A. No. 6031 mandates all Municipal Trial Courts to be courts of record. 8. PRINCIPLE OF JUDICIAL HIERARCHY Q: What is the policy of Judicial Hierarchy or hierarchy of courts? A: A higher court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts. The Supreme Court is a court of last resort and must so remain if it is to satisfactorily perform assigned to it. (1996 Bar Question) 9. DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY Q: What is Doctrine of Non-Interference or Judicial Stability? A: Courts of equal and coordinate jurisdiction cannot interfere with each other’s orders. Thus, the RTC has no power to nullify or enjoin the enforcement of a writ of possession issued by another RTC. The principle also bars a court from reviewing or interfering with the judgment of a coequal court over which it has no appellate jurisdiction or power of review. Note: GR: No court has the authority to interfere by injunction with the judgment of another court of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of another court. XPN: The doctrine does not apply where a third party claimant is involved (Santos v. Bayhon, G.R. No. 88643, July 23, 1991).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 II. JURISDICTION

Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person.

Q: What is jurisdiction? A: A: It is the power and authority of a court to try, hear, and decide a case and to carry its judgments into effect (Latin: “juris” and “dico,” which literally means “I speak of the law”). Q: Is the statement that “Jurisdiction is conferred by substantive law“ accurate? A: No, because only jurisdiction over the subject matter is conferred by substantive law. Jurisdiction over the parties, issues and res is governed by procedural laws. A. JURISDICTION OVER THE PARTIES 1. HOW JURISDICTION OVER THE PLAINTIFF IS ACQUIRED Q: How is jurisdiction over the plaintiff acquired? A: It is acquired from the moment of filing the complaint, petition or initiatory pleading. 2. HOW JURISDICTION OVER THE DEFENDANT IS ACQUIRED Q: How is jurisdiction over the defendant acquired? A: It is acquired either: a. By his voluntary appearance in court and his submission to its authority b. By service of summons c. Other coercive process upon him Note: Jurisdiction over the defendant is not essential in actions in rem or quasi in rem as long as the court has jurisdiction over the res (Herrera, Vol. I, p. 114, 2007 ed.)

B. JURISDICTION OVER THE SUBJECT MATTER 1. MEANING OF JURISDICTION OVER THE SUBJECT MATTER Q: What is jurisdiction over the subject matter?

Jurisdiction Over the Subject Matter Determined by the allegations of the complaint (Riano, Civil Procedure: A Restatement for the Bar, p. 144, 2009 ed.) XPN: Where the real issues are evident from the record of the case, jurisdiction over the subject matter cannot be made to depend on how the parties word or phrase their pleadings (Herrera, Vol. I, p. 2, 2007 ed.) e.g. in ejectment cases in which the defendant averred the defense of the existence of tenancy relationship between the parties (Ibid p.148)

Jurisdiction Over the Person Acquired by the filing of the petition in case of the plaintiff or by arrest (Rule 113), by valid service of summons or voluntary submission to the court’s authority in case of the defendant (Ibid. p. 158)

Note: Tenancy relationship is not presumed and it is not enough that it is alleged. There must be evidence to prove that it exists and that all its elements are established (Salmorin v. Zaldivar, G.R. No. 169691, July 23, 2008).

Conferred by law which may be either the Constitution or a statute (Ibid. p. 143) Cannot be conferred by the agreement of the parties, by contract or by parties’ silence or acquiescence Ibid. p. 144)

It is sometimes made to depend, indirectly at least, on the party’s volition GR: The appearance of the defendant in whatever form is submission to the jurisdiction of the court XPN: If the appearance is to object or question the court’s jurisdiction (Ibid. p. 161) Note: In criminal cases, jurisdiction over the accused is always required

A: It is the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs. It is the power or authority to hear and determine cases to which the proceeding in question belongs.

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION 2. JURISDICTION VERSUS THE EXERCISE OF JURISDICTION Q: Distinguish jurisdiction from exercise of jurisdiction. A: Jurisdiction is the authority to hear and decide cases. On the other hand, exercise of jurisdiction is any act of the court pursuant to such authority, which includes making decisions. 3. ERROR OF JURISDICTION AS DISTINGUISHED FROM ERROR OF JUDGMENT

5. DOCTRINE OF PRIMARY JURISDICTION Q: What is Doctrine of Primary Jurisdiction? A: Courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge and experience of said tribunal in determining technical and intricate matters of fact (Villaflor v. CA, G.R. No. 95694, Oct. 9, 1997).

Q: Distinguish error of jurisdiction from error of judgment.

Q: What is Doctrine of Ancillary Jurisdiction?

A:

A: It involves the inherent or implied powers of the court to determine issues incidental to the exercise of its primary jurisdiction.

Error of Jurisdiction One where the court, officer or quasi-judicial body acts without or in excess of jurisdiction, or with grave abuse of discretion Renders a judgment void or at least voidable Correctible by certiorari There is an exercise of jurisdiction in the absence of jurisdiction

Error of Judgment One that the court may commit in the exercise of jurisdiction; it includes errors of procedure or mistakes in the court’s findings Does not make the court’s decision void Correctible by appeal The court acted with jurisdiction but committed procedural errors in the appreciation of the facts or the law (1989 Bar Question)

4. HOW JURISDICTION IS CONFERRED AND DETERMINED Note: discussion on how jurisdiction is conferred is on page 4.

Q: What are the instances in which jurisdiction cannot be conferred? A: 1. 2. 3. 4. 5.

6.

By the administrative policy of any court; A court’s unilateral assumption of jurisdiction; An erroneous belief by the court that it has jurisdiction; By the parties through a stipulation e.g. contract; The agreement of the parties acquired through, or waived, enlarged or diminished by, any act or omission of the parties; Parties silence, acquiescence or consent (Riano, Civil Procedure: A Restatement for the Bar, p. 143, 11th ed.).

Note: Under its ancillary jurisdiction, a court may determine all questions relative to the matters brought before it, regulate the manner in which a trial shall be conducted, determine the hours at which the witnesses and lawyers may be heard, and grant an injunction, attachment or garnishment.

6. DOCTRINE OF ADHERENCE TO JURISDICTION Q: What is Doctrine of Adherence to Jurisdiction or Continuity of Jurisdiction? A: GR: Jurisdiction, once attached, cannot be ousted by subsequent happenings or events although of a character which would have prevented jurisdiction from attaching in the first instance, and the court retains jurisdiction until it finally disposes of the case. XPNs: 1. Where a subsequent statute expressly prohibits the continued exercise of jurisdiction; 2. Where the law penalizing an act which is punishable is repealed by a subsequent law; 3. When accused is deprived of his constitutional right such as where the court fails to provide counsel for the accused who is unable to obtain one and does not intelligently waive his constitutional right; 4. Where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 5.

6. 7.

When the proceedings in the court acquiring jurisdiction is terminated, abandoned or declared void; Once appeal has been perfected; Curative statutes (Herrera, Vol. I, p. 106, 2007 ed.).

because it cannot be tolerated by reason of public policy (Filipinas Shell Petroleum Corp. v. Dumlao, G.R. No. L-44888, Feb. 7, 1992). 3.

Q: Does retroactivity of a law affect jurisdiction? A: No. Jurisdiction being a matter of substantive law, the established rule is that statute in force at the time of the commencement of the action determines jurisdiction. (Herrera, Vol. I, p. 105, 2007 ed.) 7. OBJECTIONS TO JURISDICTION OVER THE SUBJECT MATTER Q: What is the effect of lack of jurisdiction over the subject matter? A: When it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the same. (Sec. 1, Rule 9). The court may on its own initiative object to an erroneous jurisdiction and may ex mero motu take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right to determine its own jurisdiction (Riano, Civil Procedure: A Restatement for the Bar, p. 154, 2009 ed.). Q: May jurisdiction of the court be raised or questioned at any time? A: GR: Yes. The prevailing rule is that jurisdiction over the subject matter may be raised at any stage of the proceedings (Riano, Civil Procedure: A Restatement for the Bar, p. 154, 2009 ed.). Note: Jurisdiction can be questioned even for the first time on appeal (Herrera, Vol. I, p. 91, 2007 ed.)

XPNs: 1. Estoppel by laches. SC barred a belated objection to jurisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings(Tijam v. Sibonghanoy, G.R. No. L-21450, Apr. 15, 1968). 2.

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Public policy – One cannot question the jurisdiction which he invoked, not because the decision is valid and conclusive as an adjudication, but

A party who invokes the jurisdiction of the court to secure affirmative relief against his opponents cannot repudiate or question the same after failing to obtain such relief (Tajonera v. Lamaroza, G.R. No. L-48907, 49035, Jan. 19, 1982).

Note: Under the Omnibus Motion Rule, a motion attacking a pleading like a motion to dismiss shall include all grounds then available and all objections not so included shall be deemed waived. The defense of lack of jurisdiction over the subject matter is however, a defense not barred by the failure to invoke the same in a motion to dismiss already filed. Even if a motion to dismiss was filed and the issue of jurisdiction was not raised therein, a party may, when he files an answer, raise the lack of jurisdiction as an affirmative defense because this defense is not barred under the omnibus motion rule.

Q: Will the failure to exhaust administrative remedies affect the jurisdiction of the court? A: GR: No. It is not jurisdictional but the case will be dismissed on the ground of lack of cause of action. It only renders the action premature. (Carale v. Abarintos, G.R. No. 120704, March 3, 1997; Pestanas v. Dyogi, 81 SCRA 574) XPN: Before a party may be allowed to invoke the jurisdiction of the courts, he is expected to have exhausted all means of administrative redress (Herrera, Vol. I, p. 267, 2007 ed.). XPNS TO THE XPN: 1. Question raised is purely legal; 2. When the administrative body is in estoppels; 3. When the act complained of is patently illegal; 4. When there is need for judicial intervention; 5. When the respondent acted in disregard of due process; 6. When the respondent is the alter-ego of the President, bear the implied or assumed approval of the latter; 7. When irreparable damage will be suffered; 8. When there is no other plain, speedy and adequate remedy;

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION 9.

When strong public interest is involved; and 10. In quo warranto proceedings (Herrera, Vol. I, p. 268, 2007 ed.)

involving the status of the parties or suits involving the property in the Philippines of non-resident defendants. E. JURISDICTION OF COURTS

Note: The rule on exhaustion of administrative remedies and doctrine of primary jurisdiction applies only when the administrative agency exercises quasijudicial or adjudicatory function (Associate Communications and Wireless Services v. Dumalao, G.R. 136762, Nov. 21, 2002).

8. EFFECT OF ESTOPPEL ON OBJECTIONS TO JURISDICTION Q: What is the effect of estoppel by failure to object lack of jurisdiction? A: The active participation of a party in a case is tantamount to recognition of that court’s jurisdiction and will bar a party from impugning the court’s jurisdiction. This only applies to exceptional circumstances. (Francel Realty Corp. v. Sycip, 469 SCRA 424; Concepcion v. Regalado, GR 167988, Feb. 6, 2007). C. JURISDICTION OVER THE ISSUES Q: What is jurisdiction over the issues? A: It is the power of the court to try and decide issues raised in the pleadings of the parties or by their agreement in a pre-trial order or those tried by the implied consent of the parties. It may also be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings D. JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION Q: How is jurisdiction over the res acquired? A: It is acquired either by: 1. The seizure of the property under legal process. 2. As a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. (Banco Español Filipino vs. Palanca, 37 Phil. 291). 3. The court by placing the property of thing under its custody (custodia legis). Example: attachment of property. 4. The court through statutory authority conferring upon it the power to deal with the property or thing within the court’s territorial jurisdiction. Example: suits

Q: Which court has jurisdiction over the following? A: 1. Boundary dispute between municipalities RTCs are courts of general jurisdiction. Since there is no legal provision specifically governing jurisdiction over boundary disputes between a municipality and an independent component city of the same province, it follows that RTCs have the power and authority to hear and determine such controversy (Municipality of Kananga v. Madrona, G.R. No. 141375, Apr. 30, 2003). 2. Expropriation It is within the jurisdiction of the RTC because it is incapable of pecuniary estimation. It does not involve the recovery of sum of money. Rather, it deals with the exercise by the government of its authority and right to take property for public use. 3. Labor dispute An action for damages for abuse of right as an incident to dismissal is within the exclusive jurisdiction of the labor arbiter. But the labor arbiter has no jurisdiction for claims of damages based on quasi-delict which has no reasonable connection with the employeremployee relations claims under the Labor Code (Ocheda v. CA, G.R. No. 85517, Oct. 16, 1992). Note: Where no employer-employee relationship exists between the parties and no issue involved may be resolved by reference to the Labor Code, other labor statutes or any collective bargaining agreement, it is the regular courts that has jurisdiction (Jaguar Security Investigation Agency v. Sales, G.R. No. 162420, Apr. 22, 2008).

4. Forcible entry and unlawful detainer The MTC has exclusive original jurisdiction. In such cases, when the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the question of ownership, the issue of ownership shall be resolved only to determine the issue of possession. All ejectment cases are covered by the Rule on Summary Procedure and are within the jurisdiction of the inferior courts regardless of whether they involve questions of ownership.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 The courts in ejectment cases may determine questions of ownership whenever necessary to decide the question of possession (Gayoso v. Twenty-Two Realty Development Corp., G.R. No. 147874, July 17, 2006; Santiago v. Pilar Development Corp., G.R. No. 153628, July 20, 2006). Authority to conduct administrative investigations over local elective officials and to impose preventive suspension over elective provincial or city officials It is entrusted to the Secretary of Local Government and concurrent with the Ombudsman upon enactment of R.A. 6770. There is nothing in the Local Government Code of 1991 to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act (Hagad v. Dadole, G.R. No. 108072, Dec. 12, 1995).

for reconsideration in accordance with Rule 45 of the Rules of Court (Sec. 27, R.A. 6770). 7. Public school teachers Generally, the Ombudsman must yield to the Division School Superintendent in the investigation of administrative charges against public school teachers (Ombudsman v. Galicia, G.R. No. 167711, Oct. 10, 2008).

5.

6. Appeals involving orders arising from administrative disciplinary cases originating from the Office of the Ombudsman It may be appealed to the Supreme Court by filing a petition for certiorari within 10 days from receipt of the written notice of the order, directive or decision or denial of the motion

8. Enforcement of a money claim against a local government unit Commission on Audit (COA) has the primary jurisdiction to pass upon the money claim. It is within the COA's domain to pass upon money claims against the government or any subdivision thereof as provided for under Section 26 of the Government Auditing Code of the Philippines. Courts may raise the issue of primary jurisdiction sua sponte (on its own will or motion; means to act spontaneously without prompting from another party) and its invocation cannot be waived by the failure of the parties to argue it as the doctrine exists for the proper distribution of power between judicial and administrative bodies and not for the convenience of the parties (Euro-Med Laboratories, Phil., Inc. v. Province of Batangas, G.R. No. 148106, July 17, 2006).

1. SUPREME COURT Civil Cases

Criminal Cases Exclusive Original Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari, mandamus against the following: prohibition and mandamus against the following: 1. Court of Appeals 1. Court of Appeals 2. Commission on Elections En Banc 2. Sandiganbayan 3. Commission on Audit 4. Sandiganbayan Appellate 1. In all criminal cases involving offenses from 1. Appeal by petition for review on certiorari: which the penalty is reclusion perpetua or life a. Appeals from the CA; imprisonment and those involving other b. Appeals from the CTA; offenses, which although not so punished c. Appeals from RTC exercising original jurisdiction in arose out of the same occurrence or which the following cases: may have been committed by the accused on i. If no question of fact is involved and the case the same occasion involves: a)

2.

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Constitutionality or validity of treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation b) Legality of tax, impost, assessments, or toll, or penalty in relation thereto c) Cases in which jurisdiction of lower court is in issue ii. All cases in which only errors or questions of law are involved. Special civil action of certiorari – filed within 30 days against the COMELEC / COA

Note: In criminal cases, when the penalty imposed is life imprisonment or reclusion perpetua, appeal is automatic to the CA. (A.M. No. 04-9-05-SC; People v. Mateo y Garcia, G.R. No. 147678-87, July 7, 2004)

2. 3. 4. 5.

Criminal cases in which the death penalty is imposed by the Sandiganbayan Appeals from the CA; Appeals from the Sandiganbayan; Appeals from RTC in which only errors or questions of law are involved.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION

1.

Concurrent With CA Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari, mandamus against the following: prohibition and mandamus against the RTC and a. NLRC under the Labor Code. lower courts. Note: The petitions must first be filed with the CA, otherwise, they shall be dismissed. (St. Martin Funeral Home v. CA, G.R. No. 130866, Sept. 16, 1998).

b. c. d.

Civil Service Commission Quasi-judicial agencies (file with the CA first) RTC and lower courts;

2.

Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC). With CA and RTC 1. Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari, 2. Petitions for issuance of writs of certiorari, prohibition and prohibition and mandamus against the lower courts mandamus against the lower courts or other bodies or bodies. With CA, SB and RTC 1. Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ 2. Petition for writ of habeas data, where the action involves of habeas data public data or government office With RTC With Sandiganbayan Actions affecting ambassadors and other public ministers and Petitions for mandamus, prohibition, certiorari, consuls injunctions and ancillary writs in aid of its appellate jurisdiction including quo warranto arising or that may arise in in cases filed under EO Nos. 1, 2, 14 and 14-A Note: 1.

2.

g. The following cases must be decided by the SC en banc: a. All cases involving the constitutionality of a treaty, international or executive agreement, or law; b. Cases involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations; c. A case where the required number of vote in a division is not obtained; d. A doctrine or principle laid down in a decision rendered en banc or by division is modified, or reversed; e. All other cases required to be heard en banc under the Rules of Court (Sec. 5, Art. VIII, 1987 Constitution). Environmental laws and regulations covered by the writ of kalikasan includes but not limited to the following: a. Act No. 3572 - Prohibition Against Cutting of Tindalo,Akli, and Molave Trees; b. P.D. No. 705 - Revised Forestry Code; c. P.D. No. 856 - Sanitation Code; d. P.D. No. 979 - Marine Pollution Decree; e. P.D. No. 1067 - Water Code; f. P.D. No. 1151 Philippine Environmental Policy of 1977;

h.

i.

j. k. l. m.

n. o. p. q.

P.D. No. 1433 - Plant Quarantine Law of 1978; P.D. No. 1586 - Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; R.A. 3571 - Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; R.A. 4850 - Laguna Lake Development Authority Act; R.A. 6969 - Toxic Substances and Hazardous Waste Act; R.A. 7076 - People’s Small-Scale Mining Act; R.A. 7586 - National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; R.A. 7611 - Strategic Environmental Plan for Palawan Act; R.A. 7942 - Philippine Mining Act; R.A. 8371 - Indigenous Peoples Rights Act; R.A. 8550 - Philippine Fisheries Code;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

9

UST GOLDEN NOTES 2011 r. s.

3.

R.A. 8749 - Clean Air Act; R.A. 9003 - Ecological Solid Waste Management Act; t. R.A. 9072 - National Caves and Cave Resource Management Act; u. R.A. 9147 - Wildlife Conservation and Protection Act; v. R.A. 9175 - Chainsaw Act; w. R.A. 9275 - Clean Water Act; x. R.A. 9483 - Oil Spill Compensation Act of 2007; y. Provisions in CA No. 141, The Public Land Act; R.A. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. 7160, Local Government Code of 1991; R.A. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. 7308, Seed Industry Development Act of 1992; R.A. 7900, High-Value Crops Development Act; R.A. 8048, Coconut Preservation Act; R.A. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. 9522, The Philippine Archipelagic Baselines Law; R.A. 9593, Renewable Energy Act of 2008; R.A. 9637, Philippine Biofuels Act; and z. Other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources (Sec. 2, Rule 1, A.M. No. 096-8-SC). The following are intra-corporate controversies within the jurisdiction of the RTC: a. Cases involving devises or schemes employed by or any acts, of the board

b.

c.

d.

of directors, business associates, its officers or partnership, amounting fraud or misrepresentation which may be detrimental to the interest of the public and/or the stockholders, partners, members of the associations or organizations registered with the Security and Exchange Commission; Controversies arising out of intracorporate or partnership relations, between and among stockholders, members or associates, respectively; and between such corporation, partnership or association and the state in so far as it concerns their individual franchise or right to exist as such entity; Controversies in the election or appointments of directors, trustees, officers or managers of such corporation, partnerships or associations; and Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership or association posses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities but is under the management of a Rehabilitation Receiver or Management Committee (Sec. 5.2, SRC).

2. COURT OF APPEALS Civil Cases

Criminal Cases Exclusive Original Actions for annulment of judgments of RTC based upon 1. Actions for annulment of judgments of RTC (Sec. 9 extrinsic fraud or lack of jurisdiction (Sec. 9 B.P. 129). B.P. 129). 2. Crimes of Terrorism under the Human Security Act of 2007 or R.A. 9372 Appellate 1. Final judgments, decisions, resolutions, orders, Judgments or decisions of RTC (except those appealable awards of: to the SC or SB): a. RTC a. exercising its original jurisdiction; i. In the exercise of its original jurisdiction; b. exercising its appellate jurisdiction; and ii. In the exercise of its appellate jurisdiction; c. where the imposable penalty is: b. Family Courts; i. life imprisonment or reclusion perpetua; c. RTC on the questions of constitutionality, ii. a lesser penalty for offenses committed on validity of tax, jurisdiction involving questions of the same occasion or which arose from the fact, which should be appealed first to the CA; same occurrence that gave rise to the offense d. Appeals from RTC in cases appealed from MTCs punishable reclusion perpetua or life which are not a matter of right. imprisonment (Sec. 3, Rule 122). 2. Appeal from MTC in the exercise of its delegated iii. Death (Sec. 10, Rule 122).

10

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION

3. 4. 5. 6.

1. 2.

1. 2.

jurisdiction (R.A. 7691). Appeals from Civil Service Commission; Appeals from quasi-judicial agencies under Rule 43; Appeals from the National Commission on Indigenous Peoples (NCIP); and Appeals from the Office of the Ombudsman in administrative disciplinary cases (Mendoza-Arce v. Office of the Ombudsman, G.R. No. 149148, Apr. 5, 2002). Concurrent With SC 1. Petitions for issuance of writs of Petitions for issuance of writs of certiorari, prohibition certiorari, prohibition and mandamus against and mandamus against the RTCs and lower courts. the following: a. NLRC under the Labor Code. b. Civil Service Commission c. Quasi-judicial agencies d. RTCs and other lower courts. 2. Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC). With SC and RTC Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari, prohibition Petitions for the issuance of writs of certiorari, and mandamus against the lower courts or bodies. prohibition and mandamus against the lower courts With SC, SB and RTC Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ of Petition for writ of habeas data, where the action habeas data involves public data or government office

3. COURT OF TAX APPEALS Tax Cases

Criminal Cases Exclusive Original In tax collection cases involving final and executory All criminal cases arising from violation of the NIRC of the assessments for taxes, fees, charges and penalties where TCC and other laws, part of laws, or special laws the principal amount of taxes and fees, exclusive of administered by the BIR or the BOC where the principal charges and penalties claimed is less than P1M tried by the amount of taxes and fees, exclusive of charges and proper MTC, MeTC and RTC. penalties claimed is less that P1M or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate) Appellate In tax collection cases involving final and executory 1. Over appeals from the judgment, resolutions or assessments for taxes, fees, charges and penalties where orders of the RTC in tax cases originally decided by the principal amount of taxes and fees, exclusive of them, in their respective territorial jurisdiction, charges and penalties claimed is less than P1M tried by the 2. Over petitions for review of the judgments, proper MTC, MeTC and RTC. resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs, and MCTCs in their respective jurisdiction Concurrent With CIR 1. Decisions in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR; 2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied denial; With RTC Decisions, orders or resolutions of the in local taxes originally decided or resolved by them in the exercise of their original or appellate jurisdiction; ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

11

UST GOLDEN NOTES 2011 With Commissioner of Customs Decisions in cases involving liability for customs duties, fees or other charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or 2. Other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC; With Central Board of Assessment Appeals Decisions in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals; With Secretary of Finance Decision on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the government under Sec. 2315 of the Tariff and Customs Code; With Secretary of Trade and Industry and the Secretary of Agriculture Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties. 1.

4. SANDIGANBAYAN Civil Cases

Criminal Cases Exclusive Original Cases involving violations of: 1. Violation of R.A. 3019 (Anti-Graft and Corrupt Practices a. EO No. 1 (Creating the PCGG); Act) where one or more of the accused are officials b. EO No. 2 (Illegal Acquisition and occupying the following positions in the government, Misappropriations of Ferdinand Marcos, Imelda whether in permanent. Acting or interim capacity, at the Marcos their close relatives, subordinates, time of the commission of the offense: business associates, dummies, agents or a. Officials occupying a position classified as Grade 27 nominees); or higher of the Compensation and Position c. EO No. 14 [Cases involving the ill-gotten wealth Classification Act of 1989 (R.A. 6758) in the: of the immediately mentioned persons (Marcos i. Executive branch including those occupying and dummies)]; and the position of regional director; and d. EO No. 14-A (amendments to EO No. 14) (Sec. 2, ii. All other national or local officials. R.A. 7975 as amended by R.A. 8294). b. Members of Congress c. Members of the judiciary without prejudice to the Constitution; and d. Chairmen and members of the Constitutional Commissions without prejudice to the Constitution. 2. Felonies or offenses, whether simple or complexed with other crimes committed by the public officials and employees above mentioned in relation to their office; and 3. Cases filed pursuant to EO Nos. 1, 2, 14 and 14-A (Sec. 2, R.A. 7975 as amended by R.A. 8249). Appellate Appeals from final judgments, resolutions or orders of the RTC, whether in the exercise of their original or appellate jurisdiction, in cases involving public officials or employees not otherwise mentioned in the preceding enumeration. Concurrent With SC

Petitions for certiorari, prohibition, mandamus, Petitions for certiorari, prohibition, mandamus, habeas habeas corpus, injunction and other ancillary writs in corpus, injunction and other ancillary writs in aid of its aid of its appellate jurisdiction, including quo appellate jurisdiction, including quo warranto arising in cases warranto arising in cases falling under Executive Order falling under Executive Order Nos. 1, 2, 14 and 14-A. Nos. 1, 2, 14 and 14-A. With SC, CA and RTC Petitions for the issuance of writ of amparo and writ Petitions for the issuance of writ of amparo and writ of of habeas data. habeas data.

Q: Governor Charles of Tarlac was charged with indirect bribery before the Sandiganbayan for

12

accepting a car in exchange for the award of a series of contracts for medical supplies. The

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION Sandiganbayan, after going over the information, found the same to be valid and ordered the suspension of Charles. The latter contested the suspension claiming that under the law (Sec. 13, R.A. 3019), his suspension is not automatic upon the filing of the information and his suspension under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of the Decentralization Act of 1967 (R.A. 5185). The Sandiganbayan overruled Charles’ contention stating that the suspension under the circumstances is mandatory. Is the court's ruling correct?

A: Yes. Charles’ suspension is mandatory, although not automatic. It is mandatory after the determination of the validity of the information in a pre-suspension hearing. The purpose of the suspension is to prevent the accused public officer from frustrating or hampering his prosecution by intimidating or influencing witnesses or tampering with evidence or from committing further acts of malfeasance while in office. (2001 Bar Question)

5. REGIONAL TRIAL COURTS Civil Cases

Criminal Cases Exclusive Original 1. Criminal cases not within exclusive jurisdiction of 1. Actions in which the subject of litigation is incapable any court, tribunal or body (Sec. 20, BP 129). of pecuniary estimation; a. Includes criminal cases where the penalty 2. Actions involving title to or possession of real provided by law exceeds 6 years imprisonment property or any interest therein where the assessed irrespective of the fine (R.A. 7691). value exceeds P20,000 or P50,000 in Metro Manila, b. Includes criminal cases not falling within the except forcible entry and unlawful detainer; exclusive original jurisdiction of the 3. Actions in admiralty and maritime jurisdiction where Sandiganbayan where the imposable penalty is demand or claim exceeds P300,000 or P400,000 in imprisonment more than 6 years and none of Metro Manila; the accused is occupying positions classified as 4. Matters of probate, testate or intestate, where gross “Grade 27” and higher (Sec. 4, P.D. 1606 as value of estate exceeds P300,000 or P400,000 in amended by R.A. 8249). Metro Manila; 2. Cases where the only penalty provided by law is a 5. Cases not within the exclusive jurisdiction of any fine exceeding P4,000; court, tribunal, person or body exercising judicial or 3. Other laws which specifically lodge jurisdiction in quasi-judicial function; the RTC: 6. Civil actions and special proceedings falling within a. Law on written defamation or libel; exclusive original jurisdiction of Juvenile and b. Decree on Intellectual Property; Domestic Relations Court and Court of Agrarian c. Violations of Dangerous Drugs Act regardless Reforms; of the imposable penalty except when the 7. Other cases where the demand, exclusive of interest, offender is under 16 and there are Juvenile and damages, attorney’s fees, litigation expenses and Domestic Relations Court in the province. costs, or value of property in controversy exceeds 4. Cases falling under the Family Courts in areas where P300,000 or P400,000 in Metro Manila (Sec. 19, BP there are no Family Courts (Sec.24, B.P. 129). 129 as amended by R.A. 7691); and 5. Election offenses (Omnibus election code) even if 8. Intra-corporate controversies under Sec. 5.2 of the committed by an official with salary grade of 27 or Securities and Regulation Code. higher Concurrent With SC, SB and CA 1. Writ of amparo Petitions for the issuance of writ of amparo and writ of 2. Writ of habeas data habeas data With SC Actions affecting ambassadors and other public ministers and consuls [Sec. 21 (2) of BP 129] With SC and CA 1. Certiorari, prohibition and mandamus against lower courts and bodies; 2. Habeas corpus and quo warranto; With MTC Cases involving enforcement or violations of environmental and other related laws, rules and regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC). Special ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

13

UST GOLDEN NOTES 2011 SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the interest of justice (Sec. 23, BP 129). Appellate GR: All cases decided by lower courts (MTC etc.) in their respective territorial jurisdictions. XPN: Decisions of lower courts in the exercise of delegated jurisdiction.

Q: What is the test to determine whether an action is capable of pecuniary estimation? A: The criterion is the nature of the principal action or the remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the MTCs or in the RTCs would depend on the amount of the claim.

However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought like specific performance suits and in actions for support, or for annulment of a judgment or foreclosure of mortgage, such actions are incapable of pecuniary estimation, and are cognizable exclusively by the RTCs (Barangay Piapi v. Talip, G.R. No. 138248, Sept. 7, 2005).

6. FAMILY COURTS Civil Cases

1. 2. 3.

4. 5. 6.

7. 8.

Criminal Cases Exclusive Original 1. Where one or more of the accused is/are below 18 Petitions for guardianship, custody of children, habeas years of age but not less than 9 years of age; corpus in relation to minor; 2. When one or more of the victims is a minor at the time Petitions for adoption of children and its revocation; of the commission of the offense (R.A. 8369, Act Complaints for annulment and declaration of nullity of establishing the family courts); marriage and those relating to marital status and 3. Cases against minors cognizable under the Dangerous property relations of spouses or those living together Drugs Act, as amended; and under different status and agreements; and petitions 4. Violations of R.A. 7610 or the Special Protection of for dissolution of conjugal partnership of gains; Children Against Child Abuse, Exploitation and Petitions for support and/or acknowledgment; Discrimination Act, as amended by R.A. 7658; and Summary judicial proceedings under the Family Code 5. Cases of domestic violence against: of the Philippines; a. Women – involving acts of gender-based violence Petitions for declaration of status of children as that result, or likely to result in physical, sexual or abandoned, dependent or neglected children, psychological harm or suffering to women; and petitions for voluntary or involuntary commitment of other forms of physical abuse such as battering or children, the suspension, termination, or restoration of threats and coercion which violate a woman’s parental authority and other cases cognizable under personhood, integrity and freedom of movement; PD 603, EO 56 (Series of 1986) and other related laws; b. Children – which include the commission of all and forms of abuse, neglect, cruelty, exploitation, Petitions for the constitution of the family home violence and discrimination and all other (rendered unnecessary by Art. 153, Family Code) (Sec. conditions prejudicial to their development (Sec. 5, R.A. 8369). 5, R.A. 8369)

7. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS Civil Cases

Criminal Cases

Exclusive Original 1. Actions involving personal property where the value of the 1. property does not exceed P300,000 or, in Metro Manila P400,000; 2. Actions for claim of money where the demand does not 2. exceed P300,000 or, in Metro Manila P400,000; 3. Probate proceedings, testate or intestate, where the value of the estate does not exceed P300,000 or, in Metro Manila P400,000; 3. Note: In the foregoing, claim must be exclusive of interest, damages, attorney’s fees, litigation expense, and costs (Sec. 33, BP 129 as amended by R.A. 7691).

14

4.

All offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine and regardless of other imposable accessory or other penalties; In offenses involving damage to property through criminal negligence where the imposable fine does not exceed P10,000 (Sec. 32, BP 129 as amended by R.A. 7691); Where the only penalty provided by law is a fine not exceeding P4,000 (Admin. Circular No. 09-94, June 14, 1994); and Those covered by the Rules on Summary Procedure, i.e.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION 4. Actions involving title to or possession of real property or any interest therein where the value or amount does not exceed P20,000 or, in Metro Manila P50,000 exclusive of interest damages, attorney’s fees, litigation expense, and costs; (2008 Bar Question) 5. Maritime claims where the demand or claim does not exceed P300,000 or, in Metro Manila P400,000 (Sec. 33, BP 129 as amended by R.A. 7691); 6. Inclusion or exclusion of voters (Sec. 138, BP 881); 7. Those covered by the Rules on Summary Procedure: a. Forcible entry and unlawful detainer; b. Other civil cases except probate where the total amount of the plaintiff’s claims does not exceed P100,000 or, in Metro Manila P200,000 exclusive interest and costs (as amended by A.M. No. 02-11-09-SC). 8. Those covered by the Rules on Small Claims, i.e. actions for payment of money where the claim does not exceed P100,000 exclusive of interest and costs.

a.

Violations of traffic laws, rules and regulations; b. Violations of the rental law; c. Violations of municipal or city ordinances; d. Violations of BP 22 (A.M. No. 00-11-01-SC); e. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of P 1,000 irrespective of other penalties or civil liabilities arising therefrom. 5. All offenses committed by public officers and employees in relation to their office, including government-owned or –controlled corporations, and by private individuals charged as co-principals, accomplices or accessories, punishable with imprisonment not more than 6 years or where none of the accused holds a position classified as “Grade 27” and higher (Sec. 4, P.D. 1606 as amended by R.A. 8249). Delegated

Cadastral or land registration cases covering lots where: a. There is no controversy or opposition; b. Contested but the value does not exceed P100,000 (Sec. 34, BP 129 as amended by R.A. 7691). Note: The value shall be ascertained by the affidavit of the claimant or agreement of the respective claimants (Sec. 34, BP 129 as amended by R.A. 7691).

Special Petition for habeas corpus in the absence of all RTC judges in Application for bail in the absence of all RTC judges in the province or city (Sec. 35, BP 129). the province or city. Concurrent With RTC Cases involving enforcement or violations of environmental and other related laws, rules and regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC).

8. SHARIAH COURTS Exclusive Original 1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws; 2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or aggregate value of the property; 3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws; 4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and 5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction. Concurrent With all civil courts 1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an asylum; 2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit Court; and 3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims. ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

15

UST GOLDEN NOTES 2011 F. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY CONCILIATION Katarungang Pambarangay Law To effect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and consequently help relieve the courts of docket congestion. (Preamble of P.D. 1508) (1999 Bar Qestion) 1.

2.

3.

4.

For disputes between residents of the same barangay: the dispute must be brought for settlement in the said barangay. For disputes between residents of different but adjoining barangays and the parties agree to submit their differences to amicable settlement: within the same city or municipality where any of the respondents reside at the election of the complainant. For disputes involving real property or any interest when the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon therein shall be brought in the barangay where the real property or larger portion thereof is situated. For disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located.

All disputes involving parties who actually reside in the same city or municipality may be the subject of the proceedings for amicable settlement in the barangay.

16

Rule on Small Claims Cases Purpose / Object To provide a simpler and more inexpensive and expeditious means of settling disputes involving purely money claims than the regular civil process

1. 2. 3. 4.

Where to file Metropolitan Trial Courts Municipal Trial Courts in Cities Municipal Trial Courts Municipal Circuit Trial Courts

Rules on Summary Procedure To achieve an expeditious and inexpensive determination of the cases defined to be governed by the Rules on Summary Procedure

1. 2. 3. 4.

Metropolitan Trial Courts Municipal Trial Courts in Cities Municipal Trial Courts Municipal Circuit Trial Courts

Cases Covered Civil Cases Small claims cases – civil claims 1. All cases of forcible entry and which are exclusively for the unlawful detainer irrespective of payment or reimbursement of a the amount of damages or unpaid sum of money not exceeding rentals sought to be recovered. P100,000 exclusive of interest and Where attorney’s fees are costs, either awarded, the same shall not 1. Purely civil in nature where exceed P20,000; and the claim or relief prayed for 2. All other civil cases, except by the plaintiff is solely for probate proceedings, where the payment or reimbursement of total amount of plaintiff’s claim sum of money, or does not exceed P100,000 or 2. The civil aspect of criminal does not exceed P200,000 in actions, either filed before the Metro Manila, exclusive of institution of the criminal interests and costs (A.M. No. 02action, or reserved upon the 11-09-SC, Nov. 25, 2005). filing of the criminal action in court, pursuant to Rule 111 of the Revised Rules of Criminal Procedure.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

JURISDICTION These claims or demands may be: 1. For money owed under any of the following: a. Contract of Lease b. Contract of Loan c. Contract of Services d. Contract of Sale e. Contract of Mortgage 2. For damages arising from any of the following: a. Fault or negligence b. Quasi-contract c. Contract 3. The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 Criminal Cases When punishable by imprisonment of not more than 1 year or fine of not more than 5,000. (Sec. 408, LGC)

1.

2.

3.

4. 5.

6.

Where one party is the government or any subdivision or instrumentality thereof; Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00; Offenses where there is no private offended party; Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties

1. Violations of traffic laws, rules and regulations; 2. Violations of the rental law; 3. Violations of municipal or city ordinances; 4. Violations of B.P. 22 or the Bouncing Checks Law (A.M. No. 00-11-01-SC, Apr. 15, 2003); 5. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of P 1,000 irrespective of other penalties or civil liabilities arising therefrom; and 6. Offenses involving damage to property through criminal negligence where the imposable fine is not exceeding P10,000. 1.

2.

Cases excluded Criminal actions are excluded pursuant to certain Constitutional limitations granting the accused in all criminal prosecutions “the right to be heard by himself and counsel” (Sec. 14[2], Bill of Rights). An example is a case for libel or slander. However, the civil aspect of a criminal action which seeks recovery of money as damages may be heard as a small claim if reserved or instituted separately prior to the filing of the criminal case. Some civil cases regardless of how little the amount involved cannot be filed as small claims. Examples are a suit to force a person to fix a damaged good or a demand for the fulfillment of an

This Rule shall not apply to a civil case where the plaintiff's cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011

7.

8.

thereto agree to submit their differences to amicable settlement by an appropriate lupon; Such other classes of disputes which the President of the Philippines may determine in the interest of justice; and Violations of R.A. 9262, VAWC Act.

obligation which is not purely for money.

G. TOTALITY RULE Q: What is the Aggregate or Totality Rule? A: Where there are several claims or causes of actions between the same or different parties embodied in one complaint, the amount of the demand shall be the totality of the claims in all causes of action irrespective of whether the causes of action arose out of the same or different transaction (Rule 2, Sec.5 [d]).

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE III. CIVIL PROCEDURE A. ACTIONS 1. MEANING OF ORDINARY CIVIL ACTIONS Q: What is an ordinary civil action? A: It is a formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or by law. It is governed by ordinary rules. 2. MEANING OF SPECIAL CIVIL ACTIONS Q: What is a special civil action? A: It has special features not found in ordinary civil actions. It is governed by ordinary rules but subject to specific rules prescribed Rules 62-71. 3. MEANING OF CRIMINAL ACTIONS Q: What is a criminal action? A: It is one by which the state prosecutes a person for an act or omission punishable by law (Sec.3 (b), Rule1). 4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS Q: Distinguish action from special proceeding. A: Action

Special Proceeding Purpose Civil action: To establish a status, a right 1. To protect a right or a particular fact (Sec. 3 2. Prevent or redress a Rule 1). Specific kinds of wrong. special proceedings are found in rule 72 – rule 109 Criminal action: E.g. settlement of estate, Prosecute a person for escheat, guardianship, etc. an act or omission (Riano, Civil Procedure: A punishable by law (Sec. Restatement for the Bar, p. 3, Rule 1) 121, 2009 ed.) Application Where a party litigant Where his purpose is to seeks to recover seek the appointment of a property from another, guardian for an insane his remedy is to file an person, his remedy is a action. special proceeding to establish the fact or status of insanity calling for an appointment of guardianship. (Herrera, Vol. I, p. 370, 2007 ed.) Governing Law Ordinary rules Special rules supplemented supplemented by special by ordinary rules rules

Court Heard by courts of limited jurisdiction Procedure Initiated by a pleading Initiated by a petition and and parties respond parties respond through an through an answer opposition Heard by courts of general jurisdiction

5. REAL ACTIONS AND PERSONAL ACTIONS Q: Distinguish real actions from personal actions. A: Real Action

Personal Action Scope When it affects title to or Personal property is possession of a real sought to be recovered property, or an interest or where damages for therein (Sec. 1, rule 4) breach of contract are sought Basis When it is founded upon the Founded on privity of privity of a real estate. That contract such as means that realty or interest damages, claims of therein is the subject matter money, etc. of the action. Note: It is important that the matter in litigation must also involve any of the following issue: 1. Title to 2. Ownership 3. Possession 4. Partition 5. Foreclosure of mortgage 6. Any interest in real property.

Venue Venue of action shall be Venue of action is the commenced and tried in the place where the proper court which has plaintiff or any of the jurisdiction over the area principal plaintiffs wherein the real property resides or any of the involved, or a portion defendants resides, at thereof is situated. (Rule 4, the election of the sec 1) plaintiff (Rule 2 sec 2) Example An action to recover Action for a sum of possession of real property money plus damages Note: An action to annul or rescind a sale of real property has as its fundamental and prime objective the recovery of real property (Emergency Loan Pawnshop, Inc. vs. Court of appeals, 353 SCRA 89; Riano, p. 122, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 6. LOCAL AND TRANSITORY ACTIONS Q: Distinguish local action from transitory actions. A: Local Action

Transitory Action Venue Must be brought in a Dependent on the place particular plac where the where the party resides subject property is regardless of where the located, unless there is cause of action arose. an agreement to the Subject to Sec. 4, Rule 4 contrary.

Privity of contract No privity of contract and Founded on privity of the action is founded on contract between the privity of estate only parties whether debt or covenant (Paper Industries Corporation of the Philippines v. Samson, G.R. No. L-30175, Nov. 28, 1975). Example Action to recover real Action to recover sum of property money

7. ACTIONS IN REM, IN PERSONAM AND QUASI IN REM Q: Distinguish actions in rem, in personam and quasi in rem A: Action In Rem

Action In Personam Action Quasi In Rem Nature A proceeding to subject the property A proceeding to enforce A proceeding to subject the property of of such persons to the discharge of personal rights and obligations the named defendant or his interests the claims assailed. brought against the person therein to the obligation or lien burdening the property. Purpose A proceeding to determine the state An action to impose a Deals with the stauts, ownership or or condition of a thing responsibility or liability upon liability of a particular property but a person directly which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut-off the rights or interests of all possible claimants. (Domagas vs. Jensen, 448 SCRA 663) Scope Directed against the thing itself Directed against particular Directed against particular persons Directed against the whole world persons Required jurisdiction Jurisdiction over the person of the Jurisdiction over the person of Jurisdiction over the person of the defendant is not required. the defendant is required defendant is not required as long as Jusrisdiction over the RES is required jurisdiction over the res is acquired through publication in a newspaper of general circulation. Effect of judgment Judgment is binding upon the whole Judgment is binding only upon Judgment will be binding only upon the world. parties impleaded or their litigants, privies, successor in interest successors-in-interest but the judgment shall be executed against a particular property. The RES involve will answer the judgment. Example 1. Probate proceeding 1. Action for specific 1. Action for partition 2. Cadastral proceeding performance 2. Action to foreclose real estate 3. Land registration proceeding 2. Action for breach of mortgage attachment contract 3. Action for ejectment 4. Action for a sum of money; for damages (Riano, Civil Procedure: A Restatement for the Bar,p.130, 2009 ed.)

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE B. CAUSE OF ACTION

3. FAILURE TO STATE A CAUSE OF ACTION

1. MEANING OF CAUSE OF ACTION

Q: Distinguish failure to state cause of action from absence or lack of cause of action

Q: What is a cause of action? A: A: It is the act or omission by which a party violates a rights of another (Sec. 2, Rule 2). 2. CAUSE OF ACTION VERSUS RIGHT OF ACTION Q: Distinguish cause of action from right of action A: Cause of Action It is the act or omission by which a party violates the rights of another ( Sec. 2, Rule 2)

Right of Action Remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him Requisites 1. The existence of a 1. There must be a good legal right of the cause (existence of a plaintiff cause of action) 2. A correlative duty of 2. A compliance with all the defendant to the conditions precedent respect one’s right to the bringing of the 3. An act or omission of action the defendant in 3. The action must be violation of the instituted by the proper plaintiff’s right. party. Nature It is actually predicated It is procedural in on substantive law or character is the on quasi delicts under consequence of the NCC. violation of the right of the plaintiff (Riano, Civil Procedure: A Restatement for the Bar , p. 4, 2009 ed.) Basis Based on the allegations Basis is the plaintiff’s cause of the plaintiff in the of action complaint Effect of Affirmative defense Not affected by Affected by affirmative affirmative defenses defenses (fraud, prescription, estoppel, etc.) Note: The rule is “There is no right of action where there is no cause of action”. (Ibid p.4)

Failure to state cause of action Insufficiency in the allegations of the complaint

Lack of cause of action

Failure to prove or establish by evidence one’s stated cause of action As a ground for dismissal Raised in a motion to Raised in a demurrer to dismiss under Rule 16 evidence under Rule 33 before a responsive after the plaintiff has pleading is filed rested his case Determination Determined only from Resolved only on the basis the allegations of the of the evidence he has pleading and not from presented in support of his evidentiary matters claim

4. TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION Q: What is the test of sufficiency of the statement of a cause of action? A: 1.

Whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint (Misamis Occidental II Coop., Inc. vs. David, 468 SCRA 63; Riano, p. 92, 2009 ed.)

2.

The sufficiency of the statement of cause of action must appear on the face of the complaint and its existence is only determined by the allegations of the complaint (Viewmaster Construction Corp. vs. Roxas, 335 SCRA 540; Riano, Civil Procedure: A Restatement for the Bar, p. 93, 2009 ed)

Note: The truth or falsity of the allegations is beside the point because the allegations in the complaint are hypothetically admitted. Thus a motion to dismiss on the ground of failure to state a cause of action, hypothetically admits the matters alleged in the complaint (Riano, Civil Procedure: A Restatement for the Bar, p92, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS Q: What is splitting a cause of action? A: It is the act of instituting two or more suits on the basis of the same cause of action (Sec. 4, Rule 2). It is the act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. It is a ground for the dismissal of others. The rule against splitting of a cause of action aims to avoid multiplicity of suits, conflicting decisions and unnecessary vexation and harassment of defendants. It applies not only to complaints but also to counterclaims and crossclaims. (1999 Bar Question) Note: An action for forcible entry should include not only the plea for restoration of possession but also claims for damages arising out of the forcible entry (Progressive Development Corporation, Inc. vs. CA, 301 SCRA 637; Riano, Civil Procedure: A Restatement for the Bar, p. 108, 2009 ed.)

Q: What are the rules on splitting a single cause of action?

Note: When the causes of action accrue in favor of the same plaintiff and against the same defendant, it is not necessary to ask whether or not the causes of action arose out of the same transaction or series of transactions. Also a joinder of causes of action is only permissive not compulsory, hence a party may desire to file a single suit for each of his claims.

Q: Is misjoinder of causes of action a ground for dismissal? A: No. A misjoined cause of action may, on motion of a party or on initiative of the court, be severed and proceeded with separately (Sec. 6 Rule 2). Q: The complaint filed before the RTC states two causes of actions, one for rescission of contract and other for the recovery of 100, 000.00 both of which arose out of the same transaction. Is the joinder of the two causes of action proper? A: Yes. Both are ordinary civil actions and thus, neither requires special rules. Since the action for rescission falls under the jurisdiction of the RTC, the joinder may be made in said court provided the venue lies therein (Sec. 5, Rule 2; 1996 Bar Question; Riano, Civil Procedure: A Restatement for the Bar, p.120, 2009 ed.)

A: C. PARTIES TO CIVIL ACTIONS

1. Prohibited by the Rules of Court. “A party may not institute more than one suit for a single cause of action.” (Sec.3, Rule 2) 2. The rule against splitting a single cause of action applies not only to complaints but also to counterclaims and cross-claims. (Mariscal vs. Court of Appeals, 311 SCRA 51)

1. REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES; REPRESENTATIVES AS PARTIES; NECESSARY PARTIES; INDIGENT PARTIES; ALTERNATIVE DEFENDANTS Q: What are the kinds of parties in a civil action?

6. JOINDER AND MISJOINDER OF CAUSES OF ACTION

A: 1. 2. 3. 4. 5. 6.

Q: What is a joinder of causes of action? A: It is the assertion of as many causes of action a party may have against another in one pleading alone (Sec. 5, Rule 2). Note: Joinder of causes of action must be subject to the following conditions: 1. The party shall comply with the rules on joinder of parties; 2. The joinder shall not include special civil actions governed by special rules; 3. Where causes of action pertain to different venues, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of said court and venue lies therein 4. Where claims in all causes of action are for recovery of money, the aggregate amount claimed shall be the test for jurisdiction. (Sec 5, Rule 2)

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Real parties in interest Indispensable parties Representatives as parties Necessary parties Indigent parties Pro-forma parties

Q: Who is a real party in interest? A: He 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 (Sec. 2 Rule 3). Q: Distinguish an indispensable party from a necessary party. A: Indispensable Parties Parties in interest without whom no final determination can be

Necessary Parties A necessary party is one who is not indispensable but who ought to be joined as a

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE had of an action shall be joined either as plaintiffs or defendants. (Sec.7, Rule 3) Must be joined under any and all conditions because the court cannot proceed without him (Riano, Civil Procedure: A Restatement for the Bar, p. 224, 2009 ed.) No valid judgment if they are not joined Note: In 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 (Riano, Civil Procedure: A Restatement for the Bar, p. 221, 2009 ed.)

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. (Sec.8, Rule 3) Note: Should be joined whenever possible, the action can proceed even in their absence because his interest is separable from that of indispensable party (Ibid p.224)

The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined Note: 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. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

The non-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action. The court should order the joinder of such party and non-compliance with the said order would be a ground for the dismissal of the action (Feria, Civil Procedure Annotated, Vol. I, p. 239, 2001 ed.) Note: Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (Sec. 11, Rule 3)

Q: May a party sue the defendants in the alternative? A: Yes. Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them in the alternative, although a

right to relief against one may be inconsistent with a right to relief against the other (Sec. 13, Rule 3). Q: May an action be prosecuted in the name of other party other than the real party in interest? A: No. Every action must be prosecuted and defended in the name of the real party-in-interest (Sec. 2, Rule 3). Even where the action is allowed to be prosecuted or defended by a representative party or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be a real party-in-interest (Sec.3 Rule 3; Riano, p. 219, 2009 ed.) Note: 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.

Q: Who is an indigent party? A: He is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. (Sec. 21 Rule 3) Note: Indigent litigants (a) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand (P300,000.00) pesos shall be exempt from payment of legal fees. (Sec. 19, Rule 141).

Q: What is the rule on indigent litigants? A: If the applicant for exemption meets the salary and property requirements under Sec. 19, Rule 141, then the grant of the application is mandatory. On the other hand, when the application does not satisfy one or both requirements, then the application should not be denied outright; instead, the court should apply the “indigency test” under Sec. 21, Rule 3 and use its sound discretion in determining the merits of the prayer for exemption (Algura v. LGU of Naga, G.R. No. 150135, Oct. 30, 2006). Note: While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing, it may be contested by the adverse party at any time before judgment is rendered (Sec. 21, Rule 3).

Q: What does the authority include, if one is authorized as an indigent party? A: An exemption from the payment of: 1. Docket fees and other lawful fees

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2.

Transcript of stenographic notes. (Sec. 21, Rule 3)

Note: The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless otherwise provided (Sec. 21, Rule 3). The basis for the exemption from legal and filing fees is the free access clause embodied in Sec. 11, Art. III, 1987 Constitution. (Re: Query of Mr. Roger C. Prioreschi re exemption from legal and filing fees of The Good Shepherd Foundation, Inc., A.M. No. 09-6-9SC, Aug. 19, 2009)

Q: Who is a pro forma party? A: One who is joined as a plaintiff or defendant, not because such party has any real interest in the subject matter or because any relief is demanded, but merely because the technical rules of pleadings require the presence of such party on the record. (Samaniego vs. Agulia, G.R. No. 125567, June 27, 2000) 2. COMPULSORY AND PERMISSIVE JOINDER OF PARTIES

and allows the amendment of the complaint at any stage of the proceedings, through motion or on order of the court on its own initiative (Sec. 11, Rule 3; Republic v. Sandiganbayan, G.R. No. 152154, July 15, 2003). However, when the order of the court to implead an indispendable party goes unheeded, the court may order the dismissal of the case. The court is fully clothed with the authority to dismiss a complaint due to the fault of the plaintiff as when, among others, he does not comply with the order of the court (Sec. 3, Rule 17; Plasabas vs. CA, GR No. 166519; Riano, Civil Procedure: A Restatement for the Bar p. 223, 2009 ed.) 4. CLASS SUIT Q: What is a class suit? A: It is an action where one or some of the parties may sue for the benefit of all if the requisites for said action are complied with. (Riano, Civil Procedure: A Restatement for the Bar, p. 236, 2009 ed.) Q: What are its requisites? A: 1.

Q: When is there a compulsory joinder of parties? A: The joinder of parties becomes compulsory when the one involved is an indispensable party. Clearly, the rule directs a compulsory joinder of indispensable parties, (Riano, Civil Procedure: A Restatement for the Bar, p. 222, 2009 ed.) Q: What are the requisites of permissive joinder of parties? A: 1.

2. 3.

Right to relief arises out of the same transaction or series of transactions (connected with the same subject matter of the suit); There is a question of law or fact common to all the plaintiffs or defendants; and Joinder is not otherwise provided by the provisions of the Rules on jurisdiction and venue (Sec. 6, Rule 3).

3. MISJOINDER AND NON-JOINDER OF PARTIES Q: Is the misjoinder or non-joinder of an indispensable party a ground for the dismissal of the action or annulment of judgment? A: No. The Rules prohibit the dismissal of a suit on the ground of non-joinder or misjoinder of parties

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2.

3.

4.

Subject matter of the controversy is one of common or general interest to many persons; Parties affected are so numerous that it is impracticable to bring them all before the court; Parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of all concerned (Sec. 12 Rule 3); and Representatives sue or defend for the benefit of all (Sec.12, Rule 3)

5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY Q: What is the rule on suits against entities without juridical personality? A: When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed (Sec. 15, Rule 3). Note: Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known, but they cannot sue under such name.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Question)

6. EFFECT OF DEATH OF PARTY LITIGANT Q: What is the effect of the death of a party upon a pending action? A: 1.

2.

3.

Purely personal – the death of either of the parties extinguishes the claim and the action is dismissed. Not purely personal – claim is not extinguished and the party should be substituted by his heirs, executor or administrator. In case of minor heirs, the court may appoint a guardian ad litem for them. Action for recovery of money arising from contract and the defendant dies before entry of final judgment – it shall not be dismissed but instead shall be allowed to continue until entry of judgment. A favorable judgment obtained by the plaintiff shall be enforced in the manner provided in the rules for prosecuting claims against the estate of a deceased person. (Sec. 20, Rule 3, 1999 Bar Question)

Note: The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party. (Riano, Civil Procedure: A Restatement for the Bar, p. 232, 2009 ed.) If there is notice of death, the court should await appointment of legal representative; otherwise, subsequent proceedings are void.

D. VENUE 1. VENUE VERSUS JURISDICTION Q: Distinguish venue from jurisdiction. A: Venue The place, or geographical area where an action is to be filed and tried. May be waived by: 1. Failure to object through a motion to dismiss or through an affirmative defense. 2. Stipulation of the parties. Procedural May be changed by the written agreement of the parties

Jurisdiction Power of the court to hear and decide a case

Establishes a relation between plaintiff and defendant, or petitioner and respondent. GR: Not a ground for a motu proprio dismissal XPN: In cases subject to summary procedure.

It is a ground for a motu proprio dismissal. (Riano, Civil Procedure: A Restatement for the Bar, p. 210, 2009 ed.)

Q: Can a complaint be dismissed by the court motu proprio based on improper venue? A: No. Improper venue is not one of the grounds wherein the court may dismiss an action motu proprio. (Universal Corp. vs. Lim, G.R. No. 154338, Oct. 5, 2007). Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot be truly said to be improperly laid, because the venue although technically wrong may be acceptable to the parties for whose convenience the rules on venue have been devised. (Dacuycuy vs. Intermediate Appellate Court, 195 SCRA 641) 2. VENUE OF REAL ACTIONS Q: What is the venue of real actions? A: The venue is local, hence the venue is the place where the real property involved or, any portion thereof, is situated (Sec. 1, Rule 4). 3. VENUE OF PERSONAL ACTIONS Q: What is the venue of personal actions? A: The venue is transitory, hence the venue is the residence of the plaintiff or defendant at the option of the plaintiff. (Sec. 3, Rule 4). 4. VENUE OF ACTIONS AGAINST NON-RESIDENTS Q: Where should the action be commenced and tried if the defendant is a non-resident? A: 1.

Defendant does not reside and is found in the Philippines: a. Personal actions – shall be commenced and tried in the court of the place where the plaintiff resides b. Real actions – shall be commenced and tried in the court of the place where the property is located.

2.

Defendant does not reside and is not found in the Philippines:

Cannot be waived

Substantive Cannot be the subject of the agreement of the parties. (2006 Bar

Establishes a relation between the court and the subject matter.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

25

UST GOLDEN NOTES 2011 a.

b.

If the action affects the personal status of the plaintiff – the action may be commenced and tried in the court of the place where the plaintiff resides. If it involves any property of the nonresident defendant – the action may be commenced and tried where the property or any portion thereof is situated (Sec. 3, Rule 4).

2. 3. 4. 5. 6.

Solely Exclusively in this court In no other court save – Particularly Nowhere else but/except

Q: When is stipulation on venue void? A: It is void and unenforceable when it is contrary to public policy (Sweet Lines v. Teves, G.R. No. 28324, Nov. 19, 1978)

5. WHEN THE RULES ON VENUE DO NOT APPLY Q: In what instances does the rule on venue of action inapplicable? A: 1.

2.

In cases where a specific rule or law provides otherwise (e.g. an action for damages arising from libel). Where the parties have validly agreed in writing before the filing of the action on the exclusive venue (Sec. 4, Rule 4).

6. EFFECTS OF STIPULATIONS ON VENUE Q: What is rule on the stipulations on venue? A: The parties may agree on a specific venue which could be in a place where neither of them resides (Universal Robina Corp. vs. Lim, 535 SCRA 95). The parties may stipulate on the venue as long as the agreement is in writing, made before the filing of the action, and exclusive. (Sec.4[b], Rule 4) Q: What makes a stipulation on venue exclusive? A: Venue is exclusive when the stipulation clearly indicates, through qualifying and restrictive words that the parties deliberately exclude causes or actions from the operation of the ordinary permissive rules on venue and that they intended contractually to designate a specific venue to the exclusion of any other court also com petent and accessible to the parties under the ordinary rules on venue of actions (Philippine Banking Corp. v. Tensuan, G.R. No. 106920, Dec. 10, 1993) Note: A stipulation that the parties agree to sue and be sued in the courts of Manila is not restrictive or exclusive to prevent the filing of the suit in the places provided for by the rules (Riano, Civil Procedure: A Restatement for the Bar, p. 205, 2009 ed.)

Q: What are examples of words with restrictive meanings? A: 1.

26

Note: When the action is no longer based on the agreement but on the tortuous act of sending collection telegrams despite the fact that the obligation had already been paid, venue is no longer based on the written stipulation but at the election of the plaintiff as fixed by law. (Zoleta v. Ramillo, G.R. No. L-58080, Feb. 15, 1982)

E. PLEADINGS Q: What are pleadings? A: Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Sec.1, Rule 6) Note: Pleadings cannot be oral because they are clearly described as “written” statements. (Riano, Civil Procedure: A Restatement for the Bar, p. 51, 2009 ed.)

1. KINDS OF PLEADINGS Q: What are the kinds of pleadings? A: 1. 2. 3. 4. 5. 6.

Complaint Counterclaim Cross-claim Third party claim Reply Answer a. COMPLAINT

Q: What is a complaint? A: It is a concise statement of the ultimate facts constituting the plaintiff’s cause or causes of action, with a specification of the relief sought, but it may add a general prayer for such further relief as may be deemed just or equitable. Note: A pleading alleging the plaintiff’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated. (Sec. 3, Rule 6)

Only REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE b. ANSWER Q: What is an answer? A: It is the pleading where the defendant sets forth his affirmative or negative defenses (Sec. 4 Rule 6). It may likewise be the response to a counterclaim or a cross-claim. Note: An answer Is a compulsory pleading. This pleading may be an answer to the complaint, an answer to counter claim or an answer to a cross-claim (Riano, Civil Procedure: A Restatement for the Bar, p. 323, 2009 ed.)

(1) NEGATIVE DEFENSES (2) NEGATIVE PREGNANT (3) AFFIRMATIVE DEFENSES Q: What are the two kinds of defenses that may be set forth in the answer? A: 1.

2.

Affirmative defenses – allegation of a new matter which while hypothetically admitting the material allegations in the pleading would nevertheless prevent or bar recovery by the claiming party. It is in the nature of confession and avoidance Negative defenses – specific denial of the material facts or facts alleged in the pleading essential to establish the plaintiff’s cause of action (Sec. 5, Rule 6).

Q: What are insufficient denials or denials amounting to an admission? A: 1. 2.

General denial Denial in the form of a negative pregnant

Q: What is negative pregnant? A: A denial which does not qualify as a specific denial. It is conceded to be actually an admission (Riano, Civil Procedure: A Restatement for the Bar, p. 327, 2009 ed.). It is a form of denial which, at the same time, involves an affirmative implication favorable to the opposing party. It is in effect an admission of the averment to which it is directed. It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to. (Regalado, Remedial Law Compendium, Vol. I, p. 177, 2005 ed.) Note: Where a fact is alleged with some qualification or modifying language and the denial is conjunctive, a negative pregnant exists, and only the qualification or modification is denied, while the fact itself is admitted.

A denial in a form of negative pregnant is an ambiguous pleading, since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied (Galofa v. Nee Bon Sing, G.R. No. L-22018, Jan. 17, 1968).

c. COUNTERCLAIMS Q: What is counterclaim? A: It is any claim which a defending party may have against an opposing party (Sec. 6, Rule 6). It partakes of a complaint by the defendant against the plaintiff (Pro-Line Sports Inc., v. CA, G.R. No. 118192, Oct. 23, 1997) Note: The filing of counterclaim gives rise to complaints, namely, the one filed by plaintiff by way of original complaint and the one filed by defendant by way of a counterclaim (Riano, Civil Procedure: A Restatement for the Bar, p.330, 2009 ed.) A counterclaim may be asserted against an original counter-claimant and a cross-claim may also be filed against an original cross-claimant. (Sec.9, Rule 6)

(1) COMPULSORY COUNTERCLAIM (2) PERMISSIVE COUNTERCLAIM Q: Distinguish the two kinds of counterclaim. A: Compulsory Counterclaim One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim (Sec.7, Rule 6) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction Barred if not set up in the action (Sec. 2, Rule 9) Need not be answered; No default Not an initiatory pleading.

Need not be accompanied by a certification against forum shopping and certificate to file action

Permissive Counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim

It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction Not barred even if not set up in the action Must be answered,: Otherwise, default Initiatory pleading. (Riano, Civil Procedure: A Restatement for the Bar, p. 336, 2009 ed.) Must be accompanied by a certification against forum shopping and whenever required by law, also a certificate to

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

27

UST GOLDEN NOTES 2011 by the Lupong Tagapamayapa.

The court has jurisdiction to entertain both as to the amount and nature (Sec. 7, Rule 6; Ibid p.331)

file action by the Lupong Tagapamayapa (Santo Tomas University v. Surla, G.R. No. 129718, Aug. 17, 1998) (2007 Bar Question). Must be within the jurisdiction of the court where the case is pending and cognizable by regular courts of justice otherwise, defendant will have to file it in separate proceeding which requires payment of docket fee

Note: A plaintiff who fails or who chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint (Gojo v. Goyala, G.R. No. 26768, Oct. 30, 1970). In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule 6).

(3) EFFECT ON THE COUNTERCLAIM WHEN THE COMPLAINT IS DISMISSED Q: What is the effect of the dismissal of a complaint on the counterclaim?

the right of the defendant to prosecute his counterclaim in the same or separate action (Sec. 3, Rule 17; Riano, Civil Procedure: A Restatement for the Bar, p. 340, 2009 ed.) Q: Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City. Aside from alleging payment as a defense, Ramon in his answer set up counterclaims for P100,000 as damages and P30,000 as attorney's fees as a result of the baseless filing of the complaint, as well as for P250,000 as the balance of the purchase price of the 30 units of air conditioners he sold to Fe. Suppose that instead of alleging payment as a defense in his answer, Ramon filed a motion to dismiss on that ground, at the same time setting up his counterclaims, and the court grants his motion. What will happen to his counterclaims? A: Since Ramon filed only a motion to dismiss, not an answer, the dismissal of the complaint would also bring about the dismissal of his counterclaims but he can file a separate action for his permissive counterclaims. The compulsory counterclaims are deemed waived when he filed a motion to dismiss the complaint instead of answering the same (Financial Building Corp. v. Forbes Park Association, Inc., G.R. No. 133119, Aug. 17, 2000). (2008 Bar Question) d. CROSS-CLAIMS

A: 1.

2.

3.

28

If no motion to dismiss has been filed, any of the grounds for dismissal under rule 16 may be pleaded as an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. 6, Rule 16). After hearing, when the complaint is dismissed, the counterclaim, compulsory or permissive is not dismissed. When the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim. If the court grants the motion, the dismissal shall be limited to the complaint. It shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion, manifests his preference to have his counterclaim resolved in the same action (Sec. 2, Rule 17). When the complaint is dismissed through the fault of the plaintiff and at a time when a counterclaim has already been set up, the dismissal is without prejudice to

Q: What are the requirements for a cross-claim? A: 1. 2. 3.

A claim by one party against a co-party; It must arise out of the subject matter of the complaint or of the counterclaim; and The cross-claimant is prejudiced by the claim against him by the opposing party. (Sec. 8, Rule 6)

Q: What is the effect if a cross-claim was not set up? A: GR: Barred if not set up. (Sec.2, Rule 9) XPN: If it is not asserted through oversight, inadvertence, or excusable negligence, it may still be set up with leave of court by amendment of the pleadings. (Sec.10, Rule 11)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE e. THIRD (FOURTH, ETC.) PARTY COMPLAINTS

Surety & Insurance Co., G.R. No. L-27802, Oct. 26, 1968).

Q: What is a third (fourth, etc.) party complaint? A: A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (Sec.11, Rule 6) Q: Distinguish a third-party complaint from the rules on bringing in new parties. A: A third-party complaint is proper when not one of the third-party defendants therein is a party to the main action. Whereas in bringing in new parties, if one or more of the defendants in a counterclaim or cross-claim is already a party to the action, then the other necessary parties may be brought in under the rules on bringing in new parties Q: Why is leave of court necessary in third (fourth, etc.) -party complaint? A: To obviate delay in the resolution of the complaint such as when the third-party defendant cannot be located; or unnecessary issues may be introduced; or the introduction of a new and separate controversy. (Herrera, Vol. I, p. 705, 2007 ed.) Q: What are the tests to determine whether the third-party complaint is in respect of plaintiff’s claim? A: 1.

2.

3.

Whether it arises out of the same transaction on which the plaintiff’s claim is based, or, although arising out of another or different transaction, is connected with the plaintiff’s claim; Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant; and Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff’s claim.

Note: Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint, regardless of the amount involved as a third-party complaint is merely auxiliary to and is a continuation of the main action (Republic v. Central

A third party complaint is not proper in an action for declaratory relief. (Commissioner of Customs v. Cloribel, G.R. No. L-21036, June 30, 1977). Note: The court is vested with the discretion to allow or disallow a party to an action to implead an additional party. Thus, a defendant has no vested right to file a third party complaint (China Banking Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007; Riano, p. 342, 2009 ed.).

Q: Abby obtained a favorable judgment against UNICAP for a sum of money. For failure to get full payment, Abby went after UNICAP’s debtor Ben. Ben is a policy holder of Insular. The court’s sheriff then served a notice of garnishment to Insular over several account receivables due to Ben. Insular refused to comply with the order alleging adverse claims over the garnished amounts. The trial court ordered Insular to release to Abby the said account receivables of Ben under the policies. Insular then filed a petition for certiorari with the CA alleging that the trial judge gravely abused his discretion when he issued the garnishment order despite its adverse claim on the garnished amounts. The CA gave due course to the petition and annulled the order of the trial court. Is the Court of Appeals correct? A: No. Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a thirdparty claim. Since the third-party claimant is not one of the parties to the action, he could not, strictly speaking, appeal from the order denying its claim, but should file a separate reinvindicatory action against the execution creditor or a complaint for damages against the bond filed by the judgment creditor in favor of the sheriff. The rights of a thirdparty claimant should be decided in a separate action to be instituted by the third person (Solidum v. CA, G.R. No. 161647, June 22, 2006). f. COMPLAINT-IN-INTERVENTION Q: What is a complaint-in-intervention? A: An intervention pleading filed for the purpose of asserting a claim against either or all of the original parties. g. REPLY Q: Is the filing of a reply necessary? A: GR: No.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

29

UST GOLDEN NOTES 2011 Note: If a party does not file such reply. All the new matters that were alleged in the answer are deemed controverted (Sec. 10, Rule 6)

XPNs: 1. Where the answer alleges the defense of usury in which case a reply under oath should be made. Otherwise, the allegation of usurious interest shall be deemed admitted. 2. Where the defense in the answer is based on an actionable document, a reply under oath pursuant to Sec. 8 of Rule 8 must be made. Otherwise, the genuineness and due execution of the document shall be deemed admitted. 2. PLEADINGS ALLOWED IN SMALL CLAIM CASES AND CASES COVERED BY THE RULES ON SUMMARY PROCEDURE

3. PARTS OF A PLEADING a. CAPTION Q: What should the caption contain? A: The caption sets forth the name of the court, the title of the action, and the docket number if assigned. (Sec. 1, Rule 7) Q: What should the title of the caption indicate? A: It should indicate 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. (Sec. 1, Rule 7) b. SIGNATURE AND ADDRESS

Q: What are the pleadings allowed in a summary procedure?

Q: What is the rule regarding the signature and address?

A:

A: The complaint must be signed by the plaintiff or counsel representing him indicating his address. This address should not be a post office box. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action (Sec. 3, Rule 7)

1. 2. 3. 4.

Complaint Compulsory counterclaim Cross-claims pleaded in the answer Answer to these pleadings (Sec. 3, Rules on Summary Procedure; Riano, p. 177, 2009 ed.)

Q: What are the prohibited pleadings, motions and petitions in small claims? A: 1.

Motion to dismiss the complaint except on the ground of lack of jurisdiction. 2. Motion for a bill of particulars. 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial. 4. Petition for relief from judgment. 5. Motion for extension of time to file pleadings, affidavits, or any other paper. 6. Memoranda. 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court. 8. Motion to declare the defendant in default. 9. Dilatory motions for postponement. 10. Reply. 11. Third-party complaints. 12. Interventions. (Sec.14 of A.M. No. 08-8-7SC)

30

c. VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING Q: How are pleadings verified? A: It is verified by an affidavit. This affidavit declares that the: 1. Affiant has read the pleading; and 2. Allegations therein are true and correct of his personal knowledge or based on authentic records (Sec. 4, Rule 7) Q: Is verification necessary in pleadings? A: No, except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. (Sec. 4, Rule 7)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What is the significance of verification?

2.

A: it is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The absence of a proper verification is cause to treat the pleading as unsigned and dismissible (Chua vs. Torres, 468 SCRA 358; Riano, Civil Procedure: A Restatement for the Bar, p. 60, 2009 ed.) 3. Q: What are the pleadings that should be verified? A: The following should be verified: 1. Petition for relief from judgment 2. Petition for review from the RTCs to the CA 3. Petition for review from the CTA and quasi-judicial agencies to the CA 4. Appeal by certiorari from the CA to the SC 5. Petition for annulment of judgments or final orders and resolutions 6. Complaint for injunction 7. Application for appointment of receiver 8. Application for support pendente lite 9. Petition for certiorari against the judgments, final orders or resolutions of constitutional commissions 10. Petition for certiorari, prohibition, mandamus, quo warranto 11. Complaint for expropriation 12. Complaint for forcible entry or unlawful detainer 13. Petition for indirect contempt 14. Petition for appointment of general guardian 15. Petition for leave to sell or encumber property of an estate by a guardian 16. Petition for the declaration of competency of a ward 17. Petition for habeas corpus 18. Petition for change of name 19. Petition for voluntary judicial dissolution of a corporation; 20. Petition for correction or cancellation of entries in Civil Registry. (1996 Bar Question)

It does not necessarily render the pleading defective. It is only a formal and not a jurisdictional requirement. The requirement is a condition affecting only the form of the pleading (Benguet Corp. v. Cordillera Caraballo Mission, Inc., G.R. No. 155343, Sept. 2, 2005) and noncompliance therewith does not necessarily render it fatally defective (Sarmiento v. Zaranta, G.R. No. 167471, Feb. 5, 2007) The absence of verification may be corrected by requiring an oath. The rule is in keeping with the principle that rules of procedure are established to secure substantial justice and that technical requirements may be dispensed with in meritorious cases (Pampanga Sugar Development Co., Inc. v. NLRC, G.R. No. 112650, May 29, 1997)

Q: What is the nature of the certification against non-forum shopping? A: It is a mandatory requirement in filing a complaint and other initiatory pleadings asserting a claim or relief (Sec. 5, Rule 7). This rules applies as well to special civil actions since a since rules for ordinary civil action are suppletory (Riano, Civil Procedure: A Restatement for the Bar, p. 63, 2009 ed.). Q: Who executes certification against forumshopping? A: It is the plaintiff or principal party who executes the certification under oath (Sec. 5, Rule 7). It must be signed by the party himself and cannot be signed by his counsels. (Digital Microwave Corp. v. CA, G.R. No. 128550, Mar. 16, 2000). It is the plaintiff who is in the best position to know whether he or it actually filed or caused the filing of a petition. (Far Eastern Shipping Co. v. CA, G.R. No. 130068, Oct. 1, 1998) Q: What are the undertakings of a party under the certification against forum shopping? A:

Q: What are the effects of lack of verification?

1.

That the party has not commenced 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

2.

That if there is such other pending action or claim, a complete statement of the present status thereof

A: 1.

A pleading required to be verified but lacks the proper verification shall be treated as an unsigned pleading (Sec. 4 as amended by A.M. 00-2-10, May 1, 2000). Hence, it produces no legal effect (Sec. 3, Rule 7)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

31

UST GOLDEN NOTES 2011 3.

That if he should therefore learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed (Sec. 5, Rule 7)

filing of the certification 14 days before the dismissal of the petition. In Uy v. LandBank, supra, the Court had dismissed Uy’s petition for lack of verification and certification against nonforum shopping. However, it subsequently reinstated the petition after Uy submitted a motion to admit certification and nonforum shopping certification. In all these cases, there were special circumstances or compelling reasons that justified the relaxation of the rule requiring verification and certification on nonforum shopping.

Q: What is the effect of non-compliance with the rule on certification against forum shopping? A: It is not curable by mere amendment and shall be a cause for the dismissal of action (Sec.5, Rule 7). Note: When the case is dismissed due to noncompliance with the certification, filing fees cannot be recovered.

Q: Is substantial compliance allowed by the courts? A: GR: No. The rule is that the certificate of nonforum shopping must be signed by all the petitioners or plaintiffs in a case and the signing by only one of them is insufficient.

Q: What is the effect of non-compliance with the undertakings? A: It has the same effect as the submission of false certification. Hence, such failure shall constitute indirect contempt of court without prejudice to the corresponding administrative and criminal sanctions. (Sec. 5 Rule 7).

XPN: However, the Court has also stressed that the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective. The rule of substantial compliance may be availed of with respect to the contents of the certification. This is because the requirement of strict compliance with the provisions regarding the certification of nonforum 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. (Cavile v. Heirs of Clarita Cavile, 448 Phil 302, 2003)

Q: What is the effect of submission of a false certification? A: It shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions (Sec. 5, Rule 7) Q: What is the effect of willful and deliberate forum shopping of the party or his counsel? A: It shall be a ground for summary dismissal. This dismissal is with prejudice and shall constitute direct contempt as well as cause for administrative sanctions (Sec. 5, Rule 7). Q: Is belated filing allowed by the courts?

Q: When should the rule on forum shopping be invoked?

A: GR: No. The lack of certification against forum shopping is generally not curable by the submission thereof after the filing of the petition. XPN: In certain exceptional circumstances, however, the Court has allowed the belated filing of the certification. In Loyola v. Court of Appeals, et al. (245 SCRA 477 [1995]), the Court considered the filing of the certification one day after the filing of an election protest as substantial compliance with the requirement. In Roadway Express, Inc. v. Court of Appeals, et al. (264 SCRA 696 [1996]), the Court allowed the

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A: GR: It should be raised at the earliest opportunity in a motion to dismiss or a similar pleading. Note: Invoking it in the later stages of the proceedings or on appeal may result in the dismissal of the action which invokes forum shopping.

XPNs: It may be invoked in the later stages only if the violation arises from or will result in: 1. The loss of jurisdiction over the subject matter

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 2. 3. 4.

The pendency of another action between the same parties for the same cause Barring of the action by a prior judgment The Statute of Limitations has been crossed (Young v. Keng Seng, G.R. No.143464, Mar. 5, 2003).

Q: Mayor Miguel, Mayor of City Koronadal, filed an action against RD Corporation for the annulment of the deed of absolute sale over several real properties of City of Koronadal alleging irregularities thereto with the RTC. The said deed of absolute sale was authorized by Mayor Miguel’s predecessor, Mayor de Jesus. The RTC dismissed the petition because the certification against forum shopping was signed by the City Legal Officer of City of Koronadal and not by Mayor Miguel. Is the RTC correct? A: Yes. It is the mayor, not the City Legal Officer, who has the authority to file suits for the recovery of funds and property on behalf of the city even without the prior authorization from the Sanggunian. Here, Mayor Miguel had the authority to institute the action against RD Corporation. However, being the proper party to file such suits, Mayor Miguel must necessarily be the one to sign the certification against forum-shopping, and not the City Legal Officer, who, despite being an official of the City, was merely its counsel and not a party to the case (City of Caloocan v. CA, G.R. No. 145004, May 3, 2006). (1) REQUIREMENTS OF A CORPORATION EXECUTING THE VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING

A: No. When the petitioner in a case is a corporation, the certification against forum shopping should be signed by its duly authorized director or representative. The authorized director or representative of the corporation should be vested with authority by a valid board resolution. A proof of said authority must be attached with the certification (PAL v. FASAP, G.R. No. 143088, Jan. 24, 2006). d. EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING Q: What is the effect of lawyer’s signature? A: The signature of counsel constitutes: 1. A certificate by him that he has read the pleadings; 2. That to the best of his knowledge, information and belief there is good ground to support it; and 3. That it is not interposed for delay. (Sec. 3, Rule 7) 4. ALLEGATIONS IN A PLEADING a. MANNER OF MAKING ALLEGATIONS Q: What is the rule when making a pleading? A: Every pleading shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts, omitting the statement of mere evidentiary facts. (Sec. 1, Rule 6) Q: What are Ultimate facts?

Q: What is the rule when the plaintiff is a juridical person? A: The certification against forum shopping where the plaintiff is a juridical entity like a corporation, may be executed by properly authorized person. This person may be a lawyer of a corporation. As long as he is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification, such may be signed by the authorized lawyer (National Steel Corporation vs. CA, 388 SCRA 85; Riano, Civil Procedure: A Restatement for the Bar, p. 70, 2009 ed.) Q: Corporation XYZ is the petitioner in a civil case. Alexander, president of corporation XYZ, signed the certification against forum shopping in behalf of said corporation without presenting any proof of authority from the corporation. Is the certification against forum shopping valid? If not, how may it be cured?

A: They refer to the essential facts of the claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. (Ceroferr Realty Corporation vs. Court of Appeals, 376 SCRA 144) (1) CONDITION PRECEDENT Q: What is condition precedent? A: It refers to matters which must be complied with before a cause of action arises. (Riano, Civil Procedure: A Restatement for the Bar, p. 97, 2009 ed.) Q: What is the rule on conditions precedent? A: When a claim is subject to a condition precedent, the compliance of the same must be alleged in the pleading. Otherwise it will be a ground for dismissal

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 for failure to state a cause of action. Such as tender of payment before consignation, prior resort to barangay conciliation when necessary, and etc (Riano, Civil Procedure: A Restatement for the Bar, p. 97, 2009 ed.). (2) FRAUD, MISTAKE, MALICE, INTENT, KNOWLEDGE AND OTHER CONDITION OF THE MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR ACTS Q: What is the rule in making averments of fraud or mistake? A: The circumstances constituting such fraud or mistake must be stated with particularity (Sec. 5, Rule 8). The complaint must state with particularity the fraudulent acts of the adverse party. These particulars would necessarily include the time, place, and specific acts of fraud committed against him (Riano, Civil Procedure: A Restatement for the Bar, p. 98, 2009 ed.).

Q: How are actionable documents pleaded? A: By setting forth: 1. The substance of such document in the pleading and attaching said document thereto as an exhibit 2. Said document verbatim in the pleading (Sec. 7, Rule 8). Note: A variance in the substance of the document set forth in the pleading and the document annexed thereto does not warrant the dismissal of the action (Convets, Inc. v. National Development Co., G.R. No. L10232, Feb. 28, 1958). However, the contents of the document annexed are controlling.

c. SPECIFIC DENIALS Q: What are the kinds of specific denial? A: 1.

Q: What is the rule in making averments of malice, intent, knowledge or other conditions of the mind of a person? A: The circumstances constituting such may be averred generally (Sec.5, Rule 8). Q: What is the rule in pleading an official document or act? A: It is sufficient to aver that the document was issued in compliance with law. With respect to an act, it is likewise sufficient to allege that the act was done also in compliance with law (Sec.9, Rule 8; Riano, Civil Procedure: A Restatement for the Bar, p. 98, 2009 ed.). b. PLEADING AN ACTIONABLE DOCUMENT Q: What is an actionable document? A: Referred to as the document relied upon by either the plaintiff and the defendant. (Araneta, Inc. vs. Lyric Factor Exchange, Inc. 58 Phil 736) E.g. A promissory note in an action for collection of a sum of money. (Riano, Civil Procedure: A Restatement for the Bar, p. 101, 2009 ed.) Note: This manner of pleading a document applies only to an actionable document, i.e., one which is the basis of an action or a defense. Hence, if a document does not have the character of an actionable document, it need not be pleaded strictly in the manner prescribed by the rules (Ibid p.102)

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2.

3.

Absolute denial – defendant specifies 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. Partial denial – defendant denies only a part of an averment. In this kind he shall specify so much of it as is true and material and shall deny only the remainder. Disavowal of knowledge – defendant alleges that he is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint.

(1) EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS Q: What is the effect of failure to make specific denial? A: Material averments except as to the amount of unliquidated damages, not specifically denied are deemed admitted. If the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions appear in the answer of the defendant, the plaintiff may file a motion for judgment on the pleadings under Rule 34 (Riano, Civil Procedure: A Restatement for the Bar, p. 324, 2009 ed.)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE (2) WHEN A SPECIFIC DENIAL REQUIRES AN OATH

6. DEFAULT

Q: When is a specific denial must be coupled with an oath?

a. DECLARATION OF DEFAULT Q: When is a declaration of default proper?

A: 1. A denial of an actionable document (Sec. 8, Rule 8) 2. A denial of allegations of usury in a complaint to recover usurious interest (Sec. 11, Rule 8)

A: 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 (Sec. 3, Rule 9, Rules of Court). (Riano, p. 507, 2005 ed.)

5. EFFECT OF FAILURE TO PLEAD a. FAILURE TO PLEAD DEFENSES AND OBJECTIONS Q: May defenses not pleaded in a motion to dismiss or in the answer still be raised? A: GR: No, they are deemed waived. XPNs: These defenses may be raised at any stage of the proceedings even for the first time on appeal (Tijam v. Sibonghanoy, G.R. No. L21450, Apr. 15, 1968): 1. Lack of jurisdiction over the subject matter;

Q: In what situations where declaration of default is proper? A: It is proper in 3 situations: 1. Defendant did not file any answer or responsive pleading despite valid service of summons; 2. Defendant filed an answer or responsive pleading but beyond the reglementary period; and 3. Defendant filed an answer to the court but failed to serve the plaintiff a copy as required by the Rules. b. EFFECT OF AN ORDER OF DEFAULT

Note: It may however, be barred by laches.

Q: What are the effects of an order of default? 2. 3. 4.

Litis pendentia; Res judicata; and Statute of limitations (Sec. 1, Rule 9)

A: 1.

b. FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND CROSS-CLAIM 2. Q: May a compulsory counterclaim or cross-claim not set up in the answer still be raised subsequently? A: GR: A compulsory counterclaim or cross-claim not set up in the answer is deemed barred (Sec. 2, Rule 9). XPN: If the compulsory counterclaim or crossclaim is an after-acquired counterclaim, that is, such claim matured after filing of the answer, it may be pleaded by filing an amended answer or a supplemental answer or pleading (Sec. 9, Rule 11).

3.

c. RELIEF FROM AN ORDER OF DEFAULT Q: What are the reliefs from an order of default? A: 1.

Note: Counterclaims or cross-claims omitted through oversight, inadvertence, or excusable neglect or when justice requires may be set up by amendment before judgment. Leave of court is necessary (Sec. 10, Rule 11).

The party declared in default loses his standing in court. The loss of such standing prevents him from taking part in the trial [Sec. 3(a), Rule 9]; While the defendant can no longer take part in the trial, he is nevertheless entitled to notices of subsequent proceedings [Sec. 3 (a), Rule 9]. It is submitted that he may participate in the trial, not as a party but as a witness; and A declaration of default is not an admission of the truth or the validity of the plaintiff’s claims (Monarch Insurance v. CA, G.R. No. 92735, June 8, 2000).

After notice of order and before judgment – The defendant must file a verified motion to set aside the order of default upon proper showing that:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 a.

b.

2.

3.

4.

His failure to answer was due to fraud, accident, mistake or excusable negligence; and That he has a meritorious defense. [Sec. 3(b), Rule 9] (2000 & 1999 Bar Question)

f. ACTIONS WHERE DEFAULT ARE NOT ALLOWED Q: When is default not allowed? A: 1. 2.

After judgment and before judgment becomes final and executory – He may file a motion for new trial under Rule 37. He may also appeal from the judgment as being contrary to the evidence or the law (Talsan Enterprises, Inc. v. Baliwag Transit, Inc., G.R. No. 169919, Sept. 11, 2009) After the judgment becomes final and executory – he may file a petition for relief from judgment under Rule 38 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992) (2006, 1998 Bar Question) Where the defendant has however, been wrongly or improvidently declared in default, the court can be considered to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction and when the lack of jurisdiction is patent in the face of the judgment or from the judicial records, he may avail of the special civil action of certiorari under Rule 65 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992)

3.

Actions for annulment; Declaration of nullity of marriage and legal separation [Sec. 3(e), Rule 9]; and In special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed.

7. FILING AND SERVICE OF PLEADINGS Q: What papers are required to be filed and served? A: 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. (Sec.4, Rule 13) a. PAYMENT OF DOCKET FEES Q: What is the significance of paying the docket fees? A: A complaint is not considered filed unless the proper amount of the docket fee is paid. Thus, if the proper docket fee is not paid, the period of prescription continues to run. b. FILING VERSUS SERVICE OF PLEADINGS

d. EFFECT OF A PARTIAL DEFAULT Q: What is filing? Q: What is the effect of partial default? A: It is the act of presenting the pleading or other paper to the clerk of court. (Sec. 2, Rule 13)

A: GR: The court will try the case against all defendants upon the answer of some. XPN: Where the defense is personal to the one who answered, in which case, it will not benefit those who did not answer e.g. forgery. (1995 Bar Question) e. EXTENT OF RELIEF

Q: What is service? A: It 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. (Sec. 2, Rule 13)

Q: What is the extent of relief? A: The judgment shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages [Sec. 3(d), Rule 9]. However, if the court orders submission of evidence, unliquidated damages may be awarded based on such.

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c. PERIODS OF FILING OF PLEADINGS Q. When should a responsive pleading be filed? A:

Answer to an original complaint

Periods for Filing an Answer Within 15 days after service of summons,

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

Defendant is a foreign private juridical entity and has a resident agent Defendant is a foreign private juridical entity and has no resident agent but has an agent / officer in the Philippines Defendant is a foreign private juridical entity and has no resident agent nor agent/ officer. (Summons to be served to SEC which will then send a copy by registered mail within 10 days to the home office of the foreign private corporation) Service of summons by publication

Non-resident defendant to whom extraterritorial service of summons is made Answer to amended complaint (Matter of right)* Answer to amended complaint (Not a matter of right)* Counterclaim or crossclaim Third (fourth, etc.) party complaint

Supplemental complaint

unless a different period is fixed by the court (Sec. 1, Rule 11). Within 15 days after service of summons (Sec.6, in relation to Sec.5[a], Rule 2, A.M. NO. 00-8-10-SC 2000-11-21) Within 15 days after service of summons to said agent or officer (Sec.6, in relation to Sec.5[b], Rule 2, A.M. NO. 00-8-10-SC 2000-11-21) Within 30 days after receipt of summons by the home office of the foreign private entity

d. MANNER OF FILING Q: What are the modes of filing? A: 1.

2.

By presenting the original copies thereof, plainly indicated as such, personally to the clerk of court; or By sending them through registered mail (Sec. 3, Rule 13)

Note: Filing by mail should be through the registry service which is made by deposit of the pleading in the post office, and not through other means of transmission.

e. MODES OF SERVICE Q: What are the modes of service?

A: 1. 2. Within the time specified in the order which shall not be less than 60 days after notice (Sec. 15, Rule 14) Not be less than 60 days after notice (Sec. 15, Rule 14) Within 15 days from service of amended complaint (Sec. 3. Rule 11) Within 10 days counted from notice of the court order admitting the same (Sec. 3, Rule 11) Within 10 days from service (Sec. 4, Rule 11) Like an original defendant – 15, 30, 60 days as the case may be (Sec. 5; Regalado, Vol. I, p. 212, 2005 ed.) Within 10 days from notice of order admitting the same unless a different period is fixed by the court (Sec. 7, Rule 11)

Note: Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. (Sec.11, Rule 11)

3.

Personal service (Sec. 6, Rule 13); Service by registered mail (Sec. 7, Rule 13); or Substituted service (Sec. 8, Rule 13). (1) PERSONAL SERVICE

Q: How is personal service done? A: By: 1. 2.

3.

Delivering personally a copy to the party or his counsel; Leaving a copy in counsel’s office with his clerk or with a person having charge thereof; or Leaving the copy between 8 a.m. and 6 p.m. at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion residing therein if no person found in his office, or if his office is unknown, or if he has no office (Sec. 6, Rule 13). (2) SERVICE BY MAIL

Q: How is service by mail done? A: 1.

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 10 days if undelivered; or

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2.

If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail (Sec. 7, Rule 13).

2.

3.

(3) SUBSTITUTED SERVICE Q: How and when is substituted service made? 4. A: 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 personal service and service by mail (Sec. 8, Rule 13).

(7) PROOF OF FILING AND SERVICE Q: What are the proofs of filing? A: GR: Filing is proven by its existence in the record of the case.

(4) SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS

XPN: If it is not in the record, and: 1. If filed personally – proved by the written or stamped acknowledgement of its filing by the clerk of court on a copy of the same; or 2. If filed by registered mail – proved by the registry receipt and the affidavit of the person who did the mailing with a full statement of: a. The date and place of depositing the mail in the post office in a sealed envelope addressed to the court; b. With postage fully paid; and c. With instructions to the postmaster to return the mail to the sender after 10 days if undelivered. (Sec. 12, Rule 13)

Q: How is service of judgment of final orders or resolutions done? A: By: 1. 2. 3.

Service by ordinary mail – upon expiration of 10 days after mailing, unless the court otherwise provides. Service by registered mail – upon actual receipt by the addressee, or 5 days from the date he received the first notice of the postmaster, whichever date is earlier (Sec. 10, Rule 13). Substituted service – at the time of such delivery (Sec. 8, Rule 13).

Personal service; Registered mail; or Publication, if party is summoned by publication and has failed to appear in the action (Sec. 9, Rule 13)

Note: No substituted service.

(5) PRIORITIES IN MODES OF SERVICE AND FILING Q: What are the priorities in modes of service and filing?

Q: What are the proofs of service? A: GR: Whenever practicable, the service and filing shall be done personally.

A: 1.

XPN: 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 (Sec. 11, Rule 13) 2. Note: A violation of this rule may be cause to consider the paper as not filed (Sec. 11, Rule 13).

(6) WHEN SERVICE IS DEEMED COMPLETE Q: When is service deemed complete? A: 1.

Personal service – upon actual delivery.

3.

Proof of personal service: a. Written Admission of the party served; or b. Official return of the server or c. Affidavit of the party serving, containing the date, place and manner of service. Proof of service by ordinary mail: a. Affidavit of mailer showing compliance of Sec. 7, Rule 13; and b. Registry receipt issued by the mailing officer (Sec. 13, Rule 13) Registered mail: a. Affidavit; and b. Registry receipt issued by the mailing office.

Note: The registry return card shall be filed immediately upon its receipt by the sender, or in lieu

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (Sec. 13, Rule 13)

Q: What is a notice of lis pendens? A: 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 the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Note: 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. (Sec.14, Rule 13)

8. AMENDMENT Q: How are pleadings amended? A: By: 1. 2.

Note: Plaintiff may amend his complaint even if the same was dismissed on motion of the defendant provided that the dismissal order is not yet final. (Arranz vs. Manila Surety and Fidelity Co., Inc., L128441, June 30, 1960)

c. FORMAL AMENDMENT Q: What is the rule on formal amendments? A: 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 (Sec. 4, Rule 10). d. AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE Q: When may amendment be made to conform to or authorize presentation of evidence? A: 1.

Adding or striking out an allegation or the name of any party; or Correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect (Sec. 1, Rule 10)

Note: Failure to amend does not affect the result of the trial of said issue.

2.

a. AMENDMENT AS A MATTER OF RIGHT Q: When is amendment considered as a matter of right? A: It is considered 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 (Sec. 2, Rule 10). Note: A motion to dismiss is not a responsive pleading and its filing does not preclude the exercise of the plaintiff’s right to amend his complaint. (Riano, p. 246, 2009 ed.

b. AMENDMENTS BY LEAVE OF COURT Q: When is leave of court required? A: 1. 2.

If the amendment is substantial (Sec. 3, Rule 10); and A responsive pleading had already been served (Siasoco v. CA, G.R. No. 132753. Feb. 15, 1999) (1994 Bar Question)

When issues not raised by the pleadings are tried with the express or implied consent of the parties.

Amendment may also be made to authorize presentation of evidence if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby (Sec. 5, Rule 10).

e. DIFFERENT FROM SUPPLEMENTAL PLEADINGS Q: Distinguish an amended pleading from a supplemental pleading. A: Amended Pleading Refer to the facts existing at the time of filing of original pleading Supersedes the original May be amended without leave of court before a responsive pleading is filed. Amendment must be appropriately marked.

Supplemental Pleading Refers to facts occurring after the filing of the original pleading. Merely supplements the original pleading. Always with leave of court

There is no such requirement in supplemental pleadings (Herrera, Vol. I, p. 854,

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2007 ed.)

f. EFFECT OF AMENDED PLEADING Q: What is the effect of an amended pleading? A: An amended pleading supersedes the pleading it amends. However, admissions in the superseded pleading can still be received in evidence against the pleader. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived (Sec. 8, Rule 10). F. SUMMONS 1. NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM AND QUASI IN REM Q: What is the nature of summons? A: It is the writ by which the defendant is notified of the action brought against him (Gomez vs. Court of Appeals, G.R. No. 127692, March 10, 2004). An important part of that notice is a direction to the defendant that he must answer the complaint within a specified period, and that unless he so answers, plaintiff will take judgment by default and may be granted the relief applied for (Sec. 2, Rule 14). (Riano, p. 411 , 2005 ed.) Q: What are the purposes of summons? A: 1.

2.

Actions in personam a. To acquire jurisdiction over the person of the defendant; and b. To give notice to the defendant that an action has been commenced against him (Umandap v. Sabio, Jr., G.R. No. 140244, Aug. 29, 2000) Actions in rem and quasi in rem – not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process (Gomez v. CA, G.R. No. 127692, Mar. 10, 2004). 2. VOLUNTARY APPEARANCE

Note: Voluntary appearance cures the defect in the service of summons.

XPN: Special appearance in court to challenge its jurisdiction over the person of the defendant and the inclusion in a motion to dismiss of other grounds shall not be deemed a voluntary appearance (Sec. 20, Rule 15; La Naval Drug Corp. v. CA, G.R. No. 103200, Aug. 31, 1994). 3. PERSONAL SERVICE Q: When is personal service of summons proper? A: Only if the suit is one strictly in personam. The service of summons must be made by service in person on the defendant. This is effected by handing a copy of the summons to the defendant in person, or if he refuses to receive it, by tendering the copy of the summons to him (Sec. 6, Rule 14). (Riano, p. 423 , 2005 ed.) 4. SUBSTITUTED SERVICE Q: When is substituted service of summons proper? A: In our jurisdiction, for substituted service of summons to be valid, it is necessary to establish the following: 1. The impossibility of service of summons in person within a reasonable time; 2. The efforts exerted to locate the person to be served; and 3. Service upon a person of sufficient age and discretion in the same place as the defendant or some competent person in charge of his office or regular place of business (Sabio, Jr., 339 SCRA 243 [2000]; Hamilton vs. Levy, G.R. No. 139283, November 15, 2000). (Riano, p. 427 , 2005 ed.) 5. CONSTRUCTIVE SERVICE (BY PUBLICATION) Q: Is leave of court required in constructive service of summons? A: This service always requires permission of the court.

Q: What is the effect of voluntary appearance before the court? Explain. A: GR: The defendant’s voluntary appearance shall be equivalent to service of summons and the consequent submission of one’s person to the jurisdiction of the court (Sec. 20, Rule 14).

40

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE a. SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN b. SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE PHILIPPINES Q: When is constructive service of summons proper? A: 1.

2.

Service upon a defendant where his identity is unknown or where his whereabouts are unknown. When the defendant is designated as an unknown and cannot be ascertained by diligent inquiry, Sec. 14, Rule 14 allows service of summons by publication in a newspaper of general circulation and in such places and for such time as the court may order. (Riano, p. 432 , 2005 ed.) Service upon residents temporarily outside 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 (Sec. 16, Rule 14).

6. EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED Q: When is extra-territorial service of summons allowed?

by any other manner the court may deem sufficient. (Riano, p. 439-440, 2005 ed.)

7. SERVICE UPON PRISONERS AND MINORS Q: How is service of summons upon prisoner made? A: 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. (Sec. 9, Rule 14) Q: How is service of summons upon minors made? A: Service shall be made upon him personally and on his legal guardian if he has one, or if none, upon 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. (Sec. 10, Rule 14) 8. PROOF OF SERVICE Q: How is proof of service done? A: It 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 same; and shall be sworn to when made by a person other than a sheriff or his deputy (Sec 18, Rule 14). Q: How is proof of service by publication done?

A: The defendant must be a non-resident defendant who is at the same time not found in the Philippines at the time summons is to be served. In addition, the action commenced against him must be any of the following: 1. 2.

3.

4.

An action that affects the personal status of the plaintiff; An action that relates to, or the subject of which is the property within the Philippines in which the defendant has or claims a lien or interest, actual or contingent; An action in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein; An action where the property of the defendant has been attached in the Philippines.

A: It is done through the following: 1. Affidavit of the printer, his foreman or principal clerk, business or advertising manager, to which affidavit a copy of the publication shall be attached; and 2. Affidavit showing the deposit of a copy of the summons and order for publication in the post office (Sec. 19, Rule 14). G. MOTIONS 1. MOTIONS IN GENERAL a. DEFINITION OF A MOTION Q: What is a motion? A: It is an application for relief other than by a pleading. (Sec. 1, Rule 15)

Note: In any of the above instances, extraterritorial service is permissible with leave of court and may be effected by personal service, summons by publication or ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

41

UST GOLDEN NOTES 2011 b. MOTIONS VERSUS PLEADINGS Q: What is the rule on hearing of motions? Q: Distinguish a motion from a pleading. A: GR: Every written motion shall be set for hearing by the applicant. XPN: Motions which the court may act upon without prejudicing the rights of the adverse party (Sec. 4, Rule 15).

A: A pleading is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6). It may be in the form of a complaint, counterclaim, cross-claim, third-party complaint, or complaint-in-intervention, answer or reply (Sec. 2, Rule 6). A motion on the other hand is an application for relief other than a pleading(Sec. 1, Rule 15).

e. OMNIBUS MOTION RULE Q: What is the Omnibus Motion Rule? A:

c. CONTENTS AND FORMS OF MOTIONS Q: Should a motion be in writing? A:

GR: All available grounds for objection in attacking a pleading, order, judgment, or proceeding should be invoked at one time; otherwise, they shall be deemed waived (Sec. 8, Rule 15).

GR: Yes. XPN: Those made in open court or in the course of hearing or trial (Sec. 2, Rule 15). Q: What are the contents of a motion? A: The contents of a motion are: 1. the relief sought to be obtained; 2. the ground upon which it is based; and 3. if required by the Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (Sec. 3, Rule 15) Q: May a motion pray for judgment? A: GR: No. XPN: Motion for: 1. judgment on the pleadings; 2. summary judgment; or 3. Judgment on demurrer to evidence. d. NOTICE OF HEARING AND HEARING OF MOTIONS

XPN: The court may dismiss the case motu proprio based on: 1. Lack of jurisdiction over the subject matter; 2. Litis pendentia; 3. Res judicata; and 4. Barred by statute of limitations (Sec. 1, Rule 9) f. LITIGATED AND EX-PARTE MOTIONS Q: What is a litigated motion? A: It is a motion which affects the substantial rights of the parties. A hearing is required. Q: What is an ex-parte motion? A: It is taken or granted at the instance and for the benefit of one party, and without notice to or contestation by any party adversely affected (Regalado, Remedial Law Compendium, p. 264, 2009 ed.) g. PRO-FORMA MOTIONS

Q: What shall the notice of hearing specify?

Q: What is a pro-forma motion?

A: It shall specify the time and date of the hearing which shall not be later than ten (10) days after the filing of the motion and it shall be addressed to the parties concerned (Sec. 5, Rule 15).

A: It is that which does not comply with the rules on motion and is considered as one filed merely to delay the proceedings (Marikina Development Corp., v. Flojo, G.R. No. 110801, Dec. 8, 1995).

Note: Failure to comply with the mandatory requirements of the rule regarding notice of hearing is pro forma and presents no question which merits the attention of the court (Bacelonia v. CA, G.R. No. 143440, Feb. 11, 2003).

42

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 2. MOTIONS FOR BILL OF PARTICULARS

2.

a. PURPOSE AND WHEN APPLIED FOR

3.

Q: What is a bill of particulars and when can it be availed of? A: 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 averred 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 10 days from service thereof (Sec. 1, Rule12). (2003 Bar Question) Note: Its purpose is to aid in the preparation of a responsive pleading. An action cannot be dismissed on the ground that the complaint is vague or definite. (Galeon v. Galeon, G.R. No. L-30380, Feb. 28, 1973).

b. ACTIONS OF THE COURT Q: What are the actions taken by the court regarding the motion for bill of particulars? A: The court may either: 1. Deny it; 2. Grant it outright; or 3. Allow the parties the opportunity to be heard (Sec. 2, Rule 12). c. COMPLIANCE WITH THE ORDER AND EFFECT OF NON-COMPLIANCE Q: When must be the compliance be effected? A: If the motion is granted, either in whole or in part, it must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court (Sec. 3, Rule 12). Note: Bill of particulars may be filed either on a separate or in an amended pleading, serving a copy thereof on the adverse party.

Q: What is the effect of non-compliance with the order of a bill of particulars?

Note: If the plaintiff failed to comply with the period, the court upon motion of the defendant may strike out the paragraph where ambiguity lies. If the entire complaint is ambiguous, such is striken out and there is no more case.

d. EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING Q: What is the effect of a motion for bill of particulars on the period to file a responsive pleading? A: 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 (Sec. 5, Rule12). Q: Within the period for filing a responsive pleading, the defendant filed a motion for bill of particulars that he set for hearing on a certain date. However, the defendant was surprised to find on the date set for hearing that the trial court had already denied the motion on the day of its filing, stating that the allegations of the complaint were sufficiently made. 1. Did the judge gravely abuse his discretion in acting on the motion without waiting for the hearing set for the motion? 2. If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars, can the trial judge dismiss the case if the plaintiff does not comply with the order? A: 1.

A: 1.

If the order is not obeyed or in case of insufficient compliance therewith, the court: a. May order the striking out of the pleading or the portion thereof to which the order is directed; or b. Make such order as it may deem just (Sec. 4, Rule 12)

If plaintiff, his compliant will be stricken off and dismissed (Sec. 3, Rule 17) If defendant, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff (Sec. 4, Rule 17; Sec. 3, Rule 9).

2.

No. Sec. 2, Rule 12 authorizes the court to either deny or grant said motion outright or allow the parties an opportunity to be heard. The court is not mandated to conduct a hearing. Yes. Sec. 4, Rule 12 authorizes the court to order the striking out of the pleading affected, hence the dismissal of the complaint. To the same end is the provision of Sec. 3, Rule 17 when the plaintiff fails to comply for no justifiable

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

43

UST GOLDEN NOTES 2011 cause with any order of the court or with the Rules. (2008 Bar Question)

8.

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

9.

That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds;

3. MOTION TO DISMISS a. GROUNDS Q: What are the grounds for a motion to dismiss under Rule 16?

10. That a condition precedent for filing the claim has not been complied with.(Sec. 1, Rule 16)

A: 1.

That the court has no jurisdiction over the person of the defending party;

2.

That the court has no jurisdiction over the subject matter of the claim;

3.

That venue is improperly laid;

4.

That the plaintiff has no legal capacity to sue; Note: The issue of the plaintiff’s lack of legal capacity to sue cannot be raised for the first time on appeal where the defendant dealt with the former as a party in the proceeding.

5.

That there is another action pending between the same parties for the same cause; Note: Litis pendentia requires concurrence of the following requisites: a. Identity of the parties b. Identity of rights asserted and reliefs prayed for, being founded on the same facts c. Identity with respect to the two preceding particulars, such that any judgment that may be rendered in the pending case would amount to red adjudicate in the other case. (Lim vs. Vianzon, G.R. No. 137187, Aug.3, 2006)

6.

That the cause of action is barred by a prior judgment or by the statute of limitations; Note: The requisites of res judicata include: The former judgment must be final a. The court which rendered it has jurisdiction over the subject matter and the parties b. Judgment must be on the merits c. There must be identity of parties, subject matter and causes of action

7.

That the pleading asserting the claim states no cause of action; Note: Curable by amendment

44

Note: Not jurisdictional in nature, hence, deemed waived if not raised.

b. RESOLUTION OF MOTION Q: What are the three courses of action which the trial court may take in resolving a motion to dismiss? A: 1. 2. 3.

Dismiss the action or claims; Deny the motion; or Order the amendment of the pleading (Sec. 3, Rule 16).

Note: The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor (Sec. 3, Rule16).

c. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS DISMISSED Q: What are the remedies of the plaintiff when the complaint is dismissed? A: If the dismissal is without prejudice, the plaintiff may re-file the complaint. If the dismissal is with prejudice, the plaintiff may file an appeal. (Riano, Civil Procedure: A Restatement for the Bar, p. 319-320, 2009 ed.)

d. REMEDIES OF THE DEFENDANT WHEN THE MOTION IS DENIED Q: What are the remedies of the defendant when the motion is denied? A: File an answer and proceed with the trial. If decision is adverse, appeal therefrom and raise as error the denial of the motion to dismiss. If there is grave abuse of discretion amounting to lack or excess of jurisdiction, certiorari or prohibition may lie under Rule 65. If there is unlawful neglect of the performance of an act which the law specifically enjoins, mandamus is the proper remedy. (Riano, Civil Procedure: A Restatement for the Bar, p. 319, 2009 ed.)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE e. EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN GROUNDS Q: What is the effect of dismissal on the following grounds: 1. Cause of action is barred by prior judgment or by the statute of limitations; 2. Claim or demand has been paid, waived, abandoned, or otherwise extinguished; and 3. Claim is unenforceable under the statute of frauds? A: Dismissal is with prejudice and constitutes res judicata. The language of the rule, particularly on the relation of the words “abandoned” and “otherwise extinguished” to the phrase claim or demand deemed set forth in the plaintiff’s pleading” is broad enough to include within its ambit the defense of bar by laches. However, the trial court must set a hearing on the motion where the parties shall submit not only their arguments on the questions of law but also their evidence on the questions of fact involved (Pineda v. Heirs of Eliseo Guevarra, G.R. No. 168557, Feb. 19, 2007). f. WHEN THE GROUNDS PLEADED AS AFFIRMATIVE DEFENSES Q: When can the grounds for motion to dismiss be pleaded as affirmative defense? A: If no motion to dismiss has been filed, any of the grounds for dismissal provided for in the Rules may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (Sec. 6, Rule 16)

g. BAR BY DISMISSAL Q: What are the grounds for dismissal that may bar the refiling of the same action or claim? A: 1. 2. 3. 4.

Res judicata; Prescription; Extinguishment of the claim or demand; and Unenforceability under the State of Frauds. (Sec. 5, Rule 16)

h. DISTINGUISH FROM DEMURRER TO EVIDENCE UNDER RULE 33 Q: Distinguish motion to dismiss under Rule 16 from motion to dismiss under Rule 33. A: Rule 16 (Motion to Dismiss) Grounded on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for but prior to the filing of the answer

If denied, defendant answers, or else he may be declared in default. If granted, plaintiff may appeal or if subsequent case is not barred, he may re-file the case

Rule 33 (Demurrer to Evidence) Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff

May be filed only after the plaintiff has completed the presentation of his evidence (Regalado, Remedial Law, Compendium Vol. I, p. 267, 2005 ed.) If denied, defendant may present evidence. If granted, but on appeal the order of dismissal is reversed, the defendant loses his right to present evidence (Riano, Civil Procedure: A Restatement for the Bar, p. 399, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 H. DISMISSAL OF ACTIONS 1. DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE 2. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM 3. DISMISSAL DUE TO THE FAULT OF PLAINTIFF Q: Distinguish the different types of dismissal under Rule 17. A: Dismissal upon notice by plaintiff (Sec. 1, Rule 17) 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 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. It is a matter of right. GR: A dismissal without prejudice i.e. the complaint can be re-filed XPNs: 1. The notice of dismissal by the plaintiff provides that the dismissal is with prejudice; or 2. The plaintiff has once dismissed in a competent court an action based on or including the same claim (Twodismissal rule) (Sec. 1, Rule 17) 3. Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved (Serrano v. Cabrera, G.R. No. L-5189, Sept. 21, 1953) Since there is no answer yet filed by the adverse party, no counterclaim recoverable

Dismissal upon motion of plaintiff (Sec. 2, Rule 17) After service of the answer or a motion for summary judgment by the adverse party.

Dismissal due to fault of plaintiff (Sec. 3, Rule 17) 1. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint. 2. If the plaintiff fails to prosecute his action for an unreason-nable length of time (nolle prosequi). 3. If the plaintiff fails to comply with the Rules or any order of the court.

Matter of discretion upon the court. 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 (Sec. 2, Rule 17).

Matter of evidence.

GR: It is a dismissal without prejudice,

GR: Dismissal is with prejudice because it has an effect of an adjudication on the merits. XPN: Unless otherwise declared by the court (Sec. 3, Rule 17)

XPN: If the order of dismissal specifies that it is with prejudice (Sec. 2, Rule 17) Note: A class suit shall not be dismissed or compromised without the approval of the court. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint.

GR: It is also without prejudice to the right of defendant to prosecute his counterclaim in a separate action. XPN: Unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action (Sec. 2, Rule 17).

Dismissal upon motion of the defendant or upon the court's own motion is without prejudice to the right of the defendant to prosecute his counterclaim on the same or separate action

Note: The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence (Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977). The provision of this

rule shall also apply to the dismissal of any counterclaim, cross-claim, or third-party complaint (Sec. 4, Rule17).

46

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: When does the two-dismissal rule apply? A: It applies when the plaintiff has: 1. Twice dismissed the actions; 2. Based on or including the same claim; and 3. In a court of competent jurisdiction (Riano, Civil Procedure: A Restatement for the Bar, p. 265, 2009 ed.) Note: The second notice of dismissal will bar the refiling of the action because it will operate as an adjudication of the claim upon the merits. In other words, the claim may only be filed twice, the first being the claim embodied in the original complaint. (Riano, Civil Procedure: A Restatement for the Bar, p. 265, 2009 ed.)

4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT Q: What is the effect of dismissal upon a counterclaim, which was already pleaded? A: 1.

2.

3.

If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff’s motion to dismiss, and the court grants the said motion to dismiss, the dismissal shall be limited to the complaint. The defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within fifteen (15) days from notice of the plaintiff’s motion to dismiss. The dismissal of the complaint does not carry with it the dismissal of the counterclaim. (Riano, Civil Procedure: A Restatement for the Bar, pp. 266-267, 2009 ed.)

Q: What rule governs the dismissal of counterclaim, cross-claim, or third-party complaint? A: The rule on the dismissal of a complaint applies to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone by notice pursuant to Sec. 1, Rule 17 shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing (Sec. 4, Rule 17).

I. PRE-TRIAL 1. CONCEPT OF PRE-TRIAL Q: What is pre-trial? A: It is a procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal statement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition of the action (Herrera, Vol. I, p. 1074, 2007 ed.). Q: When is pre-trial conducted? A: 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. (Sec.1, Rule 18) 2. NATURE AND PURPOSE Q: What is the nature of pre-trial? A: It is mandatory (Sec. 2, Rule 18). Q: What are the purposes of pre-trial? A: The court shall consider the following purposes: 1. Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; 2. Simplification of the issues; 3. Necessity or desirability of amendments to the pleadings; 4. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; 5. Limitation of the number of witnesses; 6. Advisability of a preliminary reference of issues to a commissioner; 7. Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; 8. Advisability or necessity of suspending the proceedings; and 9. Such other matters as may aid in the prompt disposition of the action. (Sec. 2, Rule 18)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

47

UST GOLDEN NOTES 2011 3. NOTICE OF PRE-TRIAL

5.

Q: To whom shall notice of pre-trial be served? A: It shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him (Sec. 3, Rule 18).

6.

4. APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR Q: Who has the duty to appear at the pre-trial? A: The parties and their counsel. Q: What is the effect of a party’s failure to appear during the pre-trial? A: Plaintiff’s failure to appear during the pre-trial shall be a cause for dismissal of the action, with prejudice, unless otherwise ordered by the court. Defendant’s non-attendance during the pretrial shall be a cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof (Sec. 5, Rule 18). (1992 Bar Question) Note: The non-appearance of a party may be excused only if a valid cause is shown therefore or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (Sec.4, Rule 18)

A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and The number and names of the witnesses, and the substance of their respective testimonies and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses (Sec. 6, Rule 18).

Q: What is the effect of failure to file a pre-trial brief? A: It shall have the same effect as failure to appear at the pre-trial (A.M. No. 03-1-09-SC, July 13, 2004). 6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND PRE-TRIAL IN CRIMINAL CASE Q: Distinguish pre-trial in civil cases from pre-trial in criminal cases. A: Pre-trial in civil case It is set when the plaintiff moves ex parte to set the case for pre-trial (Sec. 1, Rule 18)

The motion to set the case for pre-trial is made after the last pleading has been served and filed (Sec. 1, Rule 18)

5. PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE Q: When should the parties file with the court and serve on the adverse party their pre-trial briefs? A: They shall file their respective pre-trial briefs in such a manner as shall ensure their receipt thereof at least three (3) days before the date of the pretrial (Sec. 6, Rule 18). Q: What should a pre-trial brief contain? A: 1.

2. 3. 4.

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A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; A summary of admitted facts and proposed stipulation of facts; The issues to be tried or resolved; The documents or exhibits to be presented, stating the purpose thereof;

It considers the possibility of an amicable settlement as an important objective.

Requires the proceeding during the preliminary conference to be recorded in the “minutes of preliminary conference” to be signed by both parties and/or counsel. The rule allows either the party or his counsel to sign the minutes (A.M. No. 03-109-SC). Sanctions for nonappearance in a pre-trial are imposed upon the plaintiff and the

Pre-trial in criminal case It is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense The pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. It does not include the possibility of amicable settlement of criminal liability as one of its purposes (Sec. 1, Rule 118). All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused (Sec. 2, Rule 18)

The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE defendant in a civil case (Sec. 4, Rule 18).

(Sec. 3, Rule 18)

Specifically required to be submitted in a civil case (Sec. 6, Rule 18)

Not specifically required in a criminal case.

7. ALTERNATIVE DISPUTE RESOLUTION (ADR) Q: What are the other modes of solving disputes? A: 1.

Alternative Dispute Resolution (ADR) a. Arbitration i. Domestic Arbitration

ii. iii.

2. 3. 4. 5. 6. 7.

Construction Disputes International Commercial Arbitration b. Mediation c. Conciliation d. Early Neutral Evaluation e. Mini-trial Court-Annexed Mediation Appellate Court Mediation Judicial Dispute Resolution Katarungang Pambarangay Law Small Claims Cases Rules on Summary Procedure

Q: Distinguish the other modes of solving disputes. A: ADR

1.

2.

To actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes. To achieve speedy and impartial justice and unclog court dockets.

Subject to the terms of the contract or the submission agreement, the arbitrators selected must, within 5 days from notice of appointment, if the parties to the controversy reside within the same city or province, or within 15 days after appointment if the parties reside in different provinces, set a time and place for the hearing of the matters submitted to them. (Sec. 12, R.A. 876)

Court-Annexed Mediation/Judicial Dispute Resolution (A.M. No, 11-1-6-SC-PHILJA) Purpose / Object The purposes of CAM and JDR is “to put an end to pending litigation through compromise agreement of the parties and thereby help solve the ever-pressing problem of court docket congestion”. It is also intended “to empower the parties to resolve their own disputes and give practical effect to the State Policy expressly stated in the ADR Act of 2004 (R.A. No. 9285)”

Where to File Court acquiring jurisdiction of the case since mediation is part of the mandatory pre-trial

Appellate Court Mediation

1.

2.

After mediation has failed in the lower courts, Appellate Court Mediation provides an added option to put an end to costly and long-drawn litigation. It facilitates the interest-based settlement of the dispute through proposals coming from the parties or suggested by the mediator and accepted by the parties.

Court of Appeals

Note: Court-annexed mediation should be distinguished from court-referred mediation. The former is conducted under the court’s auspices after such court has acquired jurisdiction of the dispute while the latter is mediation ordered by the court to be conducted in accordance with the parties’ agreement when an action is prematurely commenced in violation of such agreement. The first stage is the CAM “where the judge refers the parties to the Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators”. Upon failing to secure a settlement of the dispute during the first stage, “a second attempt is made at the JDR stage”, where the JDR judge becomes a “mediator-conciliatorearly neutral evaluator in a continuing effort to secure a settlement”

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011

Any dispute or controversy which may thereafter arise between parties to a contract pursuant to an arbitration clause or any controversy or dispute wherein the parties agree to submit to an alternative dispute resolution system

1. 2. 3. 4. 5. 6. 7. 8. 9.

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Labor disputes under the Labor Code Civil status of persons Validity of a marriage Any ground for legal separation Jurisdiction of courts Future legitime Criminal liability Those which by law cannot be compromised Dispute resolution services provided by

Cases Covered 1. All civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure, including the civil liability for violation of B.P. 22, except those which by law may not be compromised; 2. Special proceedings for the settlement of estates; 3. All civil and criminal cases filed with a certificate to file action issued by the Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law 4. The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code; 5. The civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years imprisonment, where the offended party is a private person; 6. The civil aspect of estafa, theft and libel; 7. All civil cases and probate proceedings, testate and intestate, brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (1) of the Judiciary Reorganization Act of 1980; 8. All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (2) of the Judiciary Reorganization Act of 1980; 9. All civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par.(3) of the Judiciary Reorganization Act of 1980; 13 and 10. All habeas corpus cases decided by the first level courts in the absence of the Regional Trial Court judge, that are brought up on appeal from the special jurisdiction granted to the first level courts under Section 35 of the Judiciary Reorganization Act of 1980.” Cases Excluded 1. Civil cases which by law cannot be compromised (Article 2035, New Civil Code);

1.

2.

3.

4.

Civil cases brought on ordinary appeal or petition for review. Appeals from final orders, awards, judgments, resolutions of the Court of Tax Appeals and quasi-judicial agencies in the exercise of their quasi-judicial functions through petition for review or certiorari that questions a decision for having been rendered in grave abuse of discretion amounting to lack of jurisdiction. Special civil actions for certiorari, except those involving pure questions of law. Habeas corpus (court order directing law enforcement officials or custodians of detained persons to produce that person in court) cases involving custody of minors, with the consent of the parties, provided that the minor is not detained for commission of a criminal offense. Criminal cases cognizable by the Katarungang Pambarangay (Barangay Justice System) under R.A. 7160 or offenses punishable by imprisonment not exceeding one year or a fine not exceeding P5,000 or both such fine and imprisonment.

1.

Civil cases, which by law cannot be compromised.

2.

Criminal cases except those which involve habeas corpus of minors not detained for a criminal offense.

3.

Habeas corpus petitions involving custody of minors when the subject is detained for commission of a criminal offense.

2. Other criminal cases not covered under paragraphs 3 to 6 above; 3. Habeas Corpus petitions; 4. All cases under Republic Act No. 9262 (Violence against Women and Children); and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE government agencies where mediators or arbitrators are selected by government agencies: a. Mining Act; b. Consumer Act; or c. HLURB Resolution No. R-586

5. Cases with pending application for Restraining Orders/Preliminary Injunctions.

4.

Cases with pending application for restraining orders/preliminary injunctions, unless both parties request for mediation

Note: The table for Katarungang Pambarangay Law, Small Claims Cases and Rules on Summary Procedure are found on p.17

Q: Distinguish the different kinds of the ADR system. A: Arbitration

Mediation

Conciliation

It is a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to R.A. 9285, resolve a dispute by rendering an award. It results in the adjudication of a dispute.

It is a voluntary process in which an impartial and neutral third party (mediator), selected by the disputing parties, facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement regarding a dispute.

Definition A process whereby the parties request a third person or persons to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship (Art. 1 [3], UNCITRAL Model Law on Conciliation)

Arbitrator acts as out-of-court judge and settles the dispute extrajudicially.

Mediator does not render an award but only arranges the facts to be negotiated so that parties can come to a compromise agreement. He assists the parties in reaching a mutually agreeable settlement of their dispute through direct negotiations. He actively participates in resolving the dispute, and then gives an opinion.

He makes a determination of the facts and applies the law to those facts to resolve a dispute independently of the actual result desired by the parties.

The award may be final and binding if so agreed by the parties. To be executory, it must first be confirmed by

The decision or opinion is not binding on the parties. It is recommendatory in nature. The mediator

Functions A conciliator participates only in the preliminary steps of facilitating discussion between the parties and helps them frame the issues for discussion.

Effect of decision He does not render a decision. The dispute is left to be settled by the parties themselves.

Early Neutral Evaluation

Mini-Trial

It is a process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a non-binding assessment by an experienced, neutral person, with expertise in the subject or the substance of the dispute.

It is a structured dispute resolution method in which the merits of a case are argued before a panel comprising of senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement.

Early neutral Evaluator assesses or reviews the issues submitted by the parties and tenders its evaluation which is non-binding.

Panel renders a decision based on the merits of the arguments of the parties.

The assessment is not binding upon the parties.

It need not be confirmed by the courts.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

51

UST GOLDEN NOTES 2011 the RTC.

merely suggests a solution to the dispute.

Q: What is the State policy in alternative dispute resolution? A: The state policy in ADR is to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements in resolving their disputes.

functions in any ADR system. An ADR practitioner refers to individuals acting as mediator, conciliator, arbitrator or neutral evaluator. (Sec.3[b] of R.A. No. 9285) J. INTERVENTION Q: What is intervention?

Q: What is the Constitutional basis of alternative dispute resolution? A: The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. (Par. 2, Sec. 3, Art. XIII, 1987 Constitution) Q: What is the legal basis of alternative dispute resolution? A: The legal basis would be, “the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.” (Art. 1306, NCC) Q: What is an alternative dispute resolution system? A: It means any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof. (Sec.3[a] of R.A. No. 9285)

A: It is a legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirement set by the Rules of Court. This person who intervenes is one who is not originally impleaded in the action (First Philippine Holdings Corp. v. Sandiganbayan, G.R. No. 88345, Feb. 1, 1996) Note: Right to intervene is not an absolute right as it can be secured only in accordance with the terms of the applicable statute or rule. Riano, Civil Procedure: A Restatement for the Bar, p. 345, 2009 ed.)

1. REQUISITES FOR INTERVENTION Q: What are the requisites for intervention? A: 1.

Note: A motion is necessary because leave of court is required before a person may be allowed to intervene.

2.

Note: Its purposes are to: 1. Actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes; 2. Achieve speedy and impartial justice; and 3. Unclog court dockets.

3. Q: Distinguish alternative dispute resolution provider from an alternative dispute resolution practitioner. A: An ADR provider means institutions or persons accredited as mediator, conciliator, arbitrator, neutral evaluator, or any person exercising similar

52

There must be a motion for intervention filed before rendition of judgment by the trial court (Sec. 1, Rule 19);

4.

The movant must show in his motion that he has: a. Legal interest in the matter in controversy; b. Legal interest in the success of either of the parties; c. Legal interest against both parties; or d. So situated as to be adversely affected by a distribution or other disposition of the property in the custody of the court or of an officer thereof (Sec. 1, Rule 19); Intervention will not unduly delay or prejudice the adjudication of the rights of original parties; and Intervenor’s rights may not be fully protected in a separate proceeding (Mabayo Farms, Inc. vs. CA, GR 140058, Aug. 1, 2002).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: Is intervention an independent proceeding?

Q: May intervention be allowed after judgment has been rendered by the court?

A: GR: No. It is not an independent proceeding but is ancillary and supplemental to an existing litigation. Hence, the final dismissal of the principal action results into the dismissal of said ancillary action.

A: GR: After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the right of the movant. The motion to intervene must be filed at any time before rendition of judgment by the trial court (Sec. 2, Rule 19).

XPN: When intervention has been allowed and the complaint-in-intervention has already been filed before plaintiff’s action had been expressly dismissed (Metrobank v. RTC-Manila, G.R. No. 89909, Sept. 21, 1990). (2000 Bar Question)

XPNs: 1. With respect to indispensable parties, intervention may be allowed even on appeal (Falcasantos v. Falcasantos, G.R. No. L-4627, May 13, 1952); 2. When the intervenor is the Republic (Lim v. Pacquing, G.R. No. 115044, Jan. 27, 1995); 3. Where necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to appeal (Pinlac v. CA, G.R. No. 91486, Sept. 10, 2003); or 4. May be allowed during the pendency of the appeal, where the interest of justice so required (Tahanan Dev. Corp. v. CA, G.R. No. L-55771, Nov. 15, 1982).

Q: What does legal interest mean? A: It must be one that is actual and material, direct and of an immediate character, not merely contingent or expectant so that the intervenor will either gain or lose by the direct legal operation of the judgment. (Riano, Civil Procedure: A Restatement for the Bar, p. 346, 2009 ed.) 2. TIME TO INTERVENE Q: When is the time to intervene? A: The motion to intervene may be filed any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (Sec. 2, Rule 19)

Q: When shall the intervenor file a pleading-inintervention? A: 1.

Q: What is the procedure for intervention? A:

2. 1. The intervenor shall file a motion for intervention attaching thereto his pleading-inintervention. 1. If the purpose is to assert a claim against either or all of the original parties – the pleading shall be called a complaint-in-intervention. 2. If the pleading seek to unite with the defending party in resisting a claim against the latter – file an answer-inintervention. (Sec 3, Rule 19) 2. The motion and the pleading shall be served upon the original parties. 3. The answer to the complaint-inintervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the courts. (Sec.4, Rule 19)

He shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties; or An answer-in-intervention if he unites with the defending party in resisting a claim against the latter. (Sec. 3, Rule 19)

Q: When should an answer to complaint-inintervention be filed? A: It shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court (Sec. 4, Rule 19). 3. REMEDY FOR THE DENIAL OF MOTION TO INTERVENE Q: What is the remedy for the denial of motion to intervention? A: The remedy of the aggrieved party is appeal. Mandamus will not lie except in case of grave abuse of discretion.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

53

UST GOLDEN NOTES 2011 K. SUBPOENA

Q: What is the rule when application for subpoena to a prisoner is made?

Q: What is a subpoena? A: It is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted under the laws of the Philippines, or for taking of his deposition (Sec. 1, Rule 21). 1. SUBPOENA DUCES TECUM

A: The judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose and no prisoner sentenced to death, reclusion perpetua or life imprisonment and is confined in prison shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the SC (Sec. 2, Rule 21).

Q: What is subpoena duces tecum?

Q: What are the contents of subpoena?

A: A process directed to a person requiring him to bring with him any books, documents, or things under his control (Sec. 1, Rule 21).

A: It shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant (Sec. 3).

2. SUBPOENA AD TESTIFICANDUM Q: What is subpoena ad testificandum? A: A process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted by competent authority or for the taking of his deposition (Sec. 1, Rule 21). Q: Distinguish subpoena from summons. A: Subpoena

Summons

An order to appear and testify or to produce books and documents May be served to a nonparty Needs tender of kilometrage, attendance fee and reasonable cost of production fee

Order to answer complaint

Q: What is the rule on subpoena for depositions? A: Proof of service of a notice to take a deposition, as provided in Secs. 15 and 25, Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court (Sec. 5, Rule 21). Q: How is service of subpoena made?

Served on the defendant Does not need tender of kilometrage and other fees

3. SERVICE OF SUBPOENA

A: It shall be made in the same manner as personal or substituted service of summons (Sec. 6, Rule 21). Note: Service of a subpoena shall be made by the sheriff, by his deputy, or by any other person specially authorized, who is not a party and is not less than eighteen (18) years of age (Sec. 6, Rule 21).

Q: What should be delivered and tendered to the person whom subpoena is served?

Q: Who issues subpoena? A: 1. 2. 3.

4.

54

The court before whom the witness is required to attend; The court of the place where the deposition is to be taken; The officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or Any Justice of the SC or of the CA in any case or investigation pending within the Philippines. (Sec. 2, Rule 21)

A: The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day’s attendance and the kilometrage allowed by the Rules. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered (Sec. 6, Rule 21). Note: When a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made (Sec. 6, Rule 21).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: Why must service of subpoena be made?

when the subpoena was served (Sec. 4, Rule 21).

A: The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance (Sec. 6, Rule 21).

L. MODES OF DISCOVERY Q: What are the different modes of discovery?

4. COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT

A: 1. 2.

Q: What is the effect of failure to comply with subpoena?

3. 4. 5.

A: GR: The court or judge which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause. The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it (Secs. 8 and 9, Rule 21). XPNs: 1. Where the witness resides more than 100 km. from his residence to the place where he is to testify by the ordinary course of travel, generally, by overland transportation (viatory right); or 2. When the permission of the court in which the detention prisoner’s case is pending was not obtained (Sec. 10, Rule 21).

6.

Note: The modes of discovery are cumulative. They are not alternative nor mutually exclusive.

Q: What are the basic purposes of the rules of discovery? A: 1.

2.

3.

5. QUASHING OF SUBPOENA 4. Q: How to quash a subpoena? A: Subpoena duces tecum: Upon motion promptly made and, in any event, at or before the time specified therein: 1. If it is unreasonable and oppressive, or 2. The relevancy of the books, documents or things does not appear, or 3. If the person is whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof (Sec. 4, Rule 21). 4. That the witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served Subpoena ad testificandum: 1. That the witness is not bound thereby. 2. That the witness fees and kilometrage allowed by the Rules were not tendered

Depositions pending action (Rule 23) Depositions before action or pending appeal (Rule 24) Interrogatories to parties (Rule 25) Admission by adverse party (Rule 26) Production or inspection of documents and things (Rule 27) Physical and mental examination of persons (Rule 28)

5.

To enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions; To obtain knowledge of material facts or admissions from the adverse party through written interrogatories; To obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admissions; To inspect relevant documents or objects, and lands or other property in the possession and control of the adverse party; and To determine the physical or mental condition of a party when such is in controversy (Koh vs. IAC, 144 SCRA 259).

1. DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE ACTION OR PENDING APPEAL a. MEANING OF DEPOSITION Q: What is deposition? A: A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. This testimony is taken out of court. Deposition may be: a. An oral examination b. Written interrogatories (Sec 1, Rule 23)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

55

UST GOLDEN NOTES 2011 Q: When can depositions may be availed of?

XPN: If the deposition or any part thereof is offered in evidence for any purpose (Sec. 8, Rule 23).

A: a. b.

During a pending action (Rule 23) – deposition de benne esse Before action or Pending appeal (Rule 24) – deposition in perpetuam rei memoriam

XPN to the XPN: Introduction of deposition does not make the deponent his witness: 1. If the deposition is used for impeaching or contradicting the deponent (Sec. 8, Rule 23); or 2. If the adverse party uses the deposition of the other party (Sec. 4[b], Rule 23)

Q: When may plaintiff be permitted to take depositions? A: GR: Before answer is served because plaintiff must await joinder of issues. XPN: In cases of special circumstances. There must be some “necessity” or “good reason” for taking the testimony immediately or that it would be prejudicial to the party seeking the order to be compelled to await joinder of issue. E.g.: witness is aged or infirm, or about to leave the court’s jurisdiction. (Herrera, Vol. II, pp. 1213, 2007 ed.)

Q: May a party rebut a deposition? A: Yes. At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party (Sec.9, Rule 23). Q: Before whom may depositions be taken? A: 1.

If within the Philippines a. Judge; b. Notary public; or c. Any person authorized to administer oaths, as stipulated by the parties in writing (Sec. 10, Rule 23).

2.

If outside the Philippines a. On notice, before a secretary of embassy or legation, consul-general, consul, vice-consul, or consular agent of the Philippines; b. Before such person or officer as may be appointed by commission or letters rogatory; or c. Any person authorized to administer oaths, as stipulated by the parties in writing (Sec. 11, Rule 23).

Q: When is leave of court necessary when taking depositions? When is it not necessary? A: 1. It is necessary a. Before service of an answer but after the jurisdiction has been acquired over the defendant or over the property subject of the action b. If the deposition to be taken is that of a prisoner. (sec 1, Rule 23) 2. It is not necessary when an answer has already been served and the deponent is not confined in prison. (sec. 1, Rule 23) Q: What is the effect of substitution of parties? A: It does not affect the right to use depositions previously taken; and when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors-ininterest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor (Sec. 5, Rule 23). Q: Should the deponent be deemed a witness of the party taking his deposition? A: GR: No (Sec. 7, Rule 23).

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Q: When shall letters rogatory or commission be issued? A: They shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just and appropriate (Sec. 12, Rule 23). Q: Distinguish commission from letters rogatory. A: Commission Letters Rogatory Instrument issued by a Instrument sent in the name court of justice, or and by authority of a judge or other competent court to another, requesting tribunal, to authorize the latter to cause to be a person to take examined, upon interrogatories depositions or do any filed in a case pending before

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE other act by authority of such court or tribunal.

Issued to a nonjudicial foreign officer who will directly take the testimony.

the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed. Issued to the appropriate judicial officer of the foreign country who will direct somebody in said foreign country to take down testimony.

Applicable rules of procedure are those of the requesting court.

Applicable rules of procedure are those of the foreign court requested to act.

Resorted to if permission of the foreign country is given.

Resorted to if the execution of the commission is refused in the foreign country. (There must be a showing that the commission is inadequate or ineffective)

Leave of court is not necessary.

Leave of court is necessary.

not known, a general description sufficient to identify him or the particular class or group to which he belongs (Sec. 15, Rule 23). Note: On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time (Sec. 15, Rule 23)

Q: When may the court make orders for the protection of parties and deponents? A: After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make orders for the protection of parties and deponents (Sec. 16, Rule 23). Q: What are the orders that the court may make for the protection of parties and deponents? A:

Q: Who are disqualified to be a deposition officer?

1. 2.

A: 1.

2. 3.

4.

One who is related to the deponent within the 6th degree of consanguinity or affinity; An employee or attorney of one of the parties; One who is related to the attorney of the deponent within the same degree or employee of such attorney; and One who is financially interested in the action (Sec. 13, Rule 23).

3. 4. 5.

6.

Q: May the parties stipulate in writing for the taking of depositions? A: Yes. They may do so before any person authorized to administer oaths, at any time, or place, in accordance with the Rules, and when so taken may be used like other depositions (Sec. 14, Rule 23). Q: What is the requirement in taking deposition upon oral examination? A: A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action (Sec. 15, Rule 23). Q: What shall the notice state? A: It shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is

7.

8.

That the deposition shall not be taken; That it may be taken only at some designated place other than that stated in the notice; That it may be taken only on written interrogatories; That certain matters shall not be inquired into; That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel; That after being sealed, the deposition shall be opened only by order of the court, or that secret processes, developments, research need not be closed; That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression (Sec. 16, Rule 23).

Q: What are the duties of the officer before whom the deposition is to be taken? A: He shall put the witness on oath and shall personally, or by someone acting under his discretion and in his presence, record the testimony of the witness (Sec. 17, Rule 23). Note: The testimony shall be taken stenographically unless the parties agree otherwise (Sec. 17, Rule 23)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 4. Q: What objections shall be noted by the officer upon the deposition? A: All objections made at the time of the examination to the: 1. Qualifications of the officer taking the deposition; 2. Manner of taking the deposition; 3. Evidence presented; 4. Conduct of any party; or 5. Any other objection to the proceedings (Sec. 17, Rule 23). Note: A deposition officer has no authority to rule on the objection (Herrera, Vol. II, p. 34, 2007 ed.)

Q: What may the parties do if they cannot participate in the oral examination? A: The parties may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim (Sec. 17, Rule 23). Q: What is the consequence if a party or the witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken? A: The refusal may be considered contempt of that court (Sec. 2, Rule 129). Q: When shall the deposition be submitted to the witness for examination? A: It shall be submitted when the deposition is fully transcribed and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties (Sec. 19, Rule 23).

Wtness refuses to sign (Sec. 19, Rule 23)

Q: What is the effect if the witness does not sign the deposition? A: The officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under Sec. 29 (f), Rule 23, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part (Sec. 19, Rule 23). Q: What are the duties of the officer after the taking of the deposition? A: He shall: 1. Certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness; 2. Then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)"; 3. Promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing (Sec. 20, Rule 23); and 4. Give prompt notice of its filing to all the parties (Sec. 21, Rule 23). Note: Failure to comply with this requirement is a mere defect in form which cannot affect the admissibility of the deposition. (Herrera, Vol. II, p. 38, 2007 ed.)

Q: When shall the officer furnish a copy of the deposition to any party or to the deponent?

Q: What shall be done with the changes which the witness desire to make?

A: He shall furnish a copy upon payment of reasonable charges therefor (Sec. 22, Rule 23).

A: Any changes in form or substance shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them (Sec. 19, Rule 23).

Q: What is the consequence of failure to attend of the party giving notice?

Q: Is the signing of deposition necessary? A:

A: The court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees (Sec. 23, Rule 23).

GR: Yes, it shall be signed by the witness. XPN: 1. Parties by stipulation waive the signing; 2. Witness is ill; 3. Witness cannot be found; or

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Q: What is the consequence of failure of party giving notice to serve subpoena? A: If because of such failure, the witness does not attend, and if another party attends in person or by

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE counsel because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney’s fees (Sec. 24, Rule 23). Q: How is deposition upon written interrogatories done? 5. A: A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition (Sec. 25, Rule 23). Note: The duties of the officer under Secs. 17, 19, 20, 21 & 22 of Rule 23 shall also be followed on deposition upon written interrogatories (Secs. 26 & 27, Rule 23).

6.

occurring at the oral examination in the manner of taking the deposition in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. As to form of written interrogatories – Objections to the form of written interrogatories submitted under Secs. 25 and 26 are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of the last interrogatories authorized. As to manner of preparation – Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Secs. 17, 19, 20 and 26 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained (Sec. 29, Rule 23)

Q: What is the effect of errors and irregularities in depositions?

Q: Who may file a petition for deposition before action?

A:

A: Any person who wants to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines (Sec. 1, Rule 24).

1.

2.

3.

4.

As to notice – All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. As to disqualification of officer – Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. As to competency or relevancy of evidence – Objections to the competency of witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground, of the objection is one which might have been obviated or removed if presented at that time. As to oral examination and other particulars – Errors and irregularities

Q: What are the contents of the petition? A: The petition shall be entitled in the name of the petitioner and shall show: 1. that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; 2. the subject matter of the expected action and his interest therein; 3. the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; 4. the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and 5. The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony (Sec.2, Rule 24)

3.

Q: What is the rule on notice and service of depositions before action? A: The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (Sec. 3, Rule 24) Q: What are the contents of the motion for deposition pending appeal?

any purpose by any party if the court finds that: DR. USE a. The witness is Dead b. The witness Resides more than 100 kilometers from the place of trial or hearing, or is out of the Philippines. Unless it appears that his absence was procured by the party offering the deposition c. The witness is Unable to testify because of age, sickness, infirmity or imprisonment d. The party offering the deposition has been unable to procure the attendance of the witness by Subpoena e. Upon application and notice, that such Exceptional circumstances exist as to make it desirable in the interest of justice (Sec. 4, Rule 23)

Q: What is the dual function of depositions? A:

A: The motion shall state: 1. The names and addresses of the persons to be examined 2. The substance of the testimony which he expects to elicit from each 3. The reason for perpetuating their testimony. (Sec. 7, Rule 24). Note: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed under Rule 23. (Sec. 7, Rule 24)

b. USES; SCOPE OF EXAMINATION

1.

Rule 23 – method of discovery, with use on trial not necessarily contemplated; and

2.

Rule 24 – a method of presenting testimony.

Q: What is the use of deposition pending appeal? A: Depositions are taken pending appeal with the view to their being used in the event of further proceeding in the court of origin or appellate court. (Sec. 7, Rule 24) Note: The deposition taken under this Rule is admissible in evidence in any action subsequently brought involving the same subject matter (Sec. 6, Rule 24)

Q: To whom may the deposition be used against? A: Any part or all of the deposition, so far as admissible under the rules of evidence, may be used against: 1. Any party who was present or represented at the taking of the deposition; or 2. One who had due notice of the deposition (Sec. 4, Rule 23) Q: What are the uses of depositions? A: 1. 2.

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Contradicting or impeaching the testimony of the deponent as a witness; Any purpose by the adverse party where the deponent is a party; or

Q: What is the scope of the examination of the deponent? A: Unless otherwise ordered by the court as provided by Sec. 16 or 18, Rule 23, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the: 1. Existence; 2. Description; 3. Nature; 4. Custody; 5. Condition; 6. Location of any books, documents, or other tangible things; and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 7.

The identity and location of persons having knowledge of relevant facts (Sec. 2, Rule 23).

Q: Distinguish protection order from motion to terminate or limit examination. A:

c. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE MADE Q: What is the rule on objections to admissibility of deposition? A: Subject to the provisions of Sec. 29, Rule 23, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (Sec. 6, Rule 23) d. WHEN MAY TAKING OF DEPOSITION BE TERMINATED OR ITS SCOPE LIMITED Q: What are the grounds for the termination or limitation of the examination? A: 1. 2.

3.

Upon a showing that the examination is being conducted in bad faith; In such manner as unreasonably to annoy, embarrass or oppress the deponent or party (Sec. 18, Rule 23); or When the constitutional privilege against self-incrimination is invoked by deponent or his counsel (Herrera, Vol. II, p. 37, 2007 ed.).

Note: If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable (Sec. 18, Rule 23).

Q: When may taking of deposition be terminated or its scope limited? A: At any time during the taking of the deposition, on motion or petition of any party or of the deponent. (Sec. 18, Rule 23)

Protection Order (Sec. 16, Rule 23) Provides protection to the party or witness before the taking of deposition. The Motion is filed with the court in which the action is pending.

Motion to Terminate or Limit Examination (Sec. 18, Rule 23) Provides such protection during the taking of deposition. Motion or petition is filed in the court in which the action is pending or the RTC of the place where the deposition is being taken.

Q: What is the rule on objections to admissibility of deposition? A: Subject to the provisions of Sec. 29, Rule 23, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (Sec. 6, Rule 23). 2. WRITTEN INTERROGATORIES TO ADVERSE PARTIES Q: What is the purpose of interrogatories to parties? A: For eliciting material and relevant facts from any adverse party (Sec. 1, Rule 25). Q: Distinguish particulars.

interrogatories

from

bill

of

A: Interrogatories Interrogatories to parties are not directed to a particular pleading. Instead, they seek to disclose all material and relevant facts from a party (Sec 1, Rule 25)

Bill of Particulars Designed to clarify ambiguities in a pleading or to state with sufficient definiteness allegations in a pleading. It is therefore directed to a pleading (Sec 1, Rule 12)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: Distinguish depositions upon written interrogatories under Rule 23, Section 25 from interrogatories to parties under Rule 25. A: Depositions Upon Written Interrogatories to Interrogatories to Parties Parties (Rule 25) (Sec. 25, Rule 23) Deponent Party or ordinary witness Party only Procedure With intervention of the No intervention. officer authorized by the Written interrogatories Court to take deposition are directed to the party himself Not served upon the adverse party directly. They Served directly upon are instead delivered to the the adverse party (Sec officer before whom the 1, Rule 25) deposition is to be taken. (Sec 26, Rule 23) Scope Direct, cross, redirect, reOnly one set of cross interrogatories Interrogatories 15 days to answer No fixed time unless extended or reduced by the court

Q: What is interrogatories?

the

procedure

in

taking

A: The mode of discovery is availed of by filing and serving upon the adverse party written interrogatories to be answered by the party served. If the party is a juridical entity, it shall be answered by any of its officers competent to testify in its behalf. (Sec 1, Rule 25) The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. Q: How many interrogatories may a party serve? A: No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party (Sec. 4, Rule 25). Q: How are interrogatories answered? A: The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time (Sec. 2, Rule 25).

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Note: The party against whom it is directed may make objections to the interrogatories. (Sec. 2, Rule 25) Judgment by default may be rendered against a party who fails to serve his answer to written interrogatories. (Sec.3[c], Rule 29)

Q: How can a party make objections to the interrogatories? A: Objections shall be presented to the court within 10 days after service of the interrogatories. The filing of the objections shall have the effect of deferring the filing and service of the answer to the interrogatories (Sec. 3, Rule 25). Q: Is leave of court necessary before a party may be served with written interrogatories? A: GR: It is not necessary after answer has been served, for the first set of interrogatories. XPN: It is necessary before answer has been served because, at that time, the issues are not yet joined and the disputed facts are not yet clear. Q: What is the scope and use of interrogatories? A: Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided in section 4 of the same Rule (Sec. 5, Rule 25). a. CONSEQUENCES OF REFUSAL TO ANSWER Q: What are the consequences of refusal to answer? A: (1) If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney’s fees. If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney’s fees (Sec. 1, Rule 29). (2) If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court (Sec. 2, Rule 29). (3) 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 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: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; (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; (d) In lieu of any of the foregoing orders or in addition thereto, an order directing the

arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination (Sec. 3, Rule 29). b. EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES Q: What is the effect of failure to serve written interrogatories? A: GR: A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. XPN: When allowed by the court and there is good cause shown and the same is necessary to prevent a failure of justice (Sec. 6, Rule 25). Note: The sanctions adopted by the rules is not one of compulsion in the sense that the party is being compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him.

3. REQUEST FOR ADMISSION Q: What admissions may be requested from the adverse party? A: Admission of the: 1. Genuineness of any material and relevant document described in and exhibited with the request; or 2. Truth of any material and relevant matter of fact set forth in the request (Sec. 1, Rule 26). Note: The request for admission must be served directly upon the party; otherwise, the party to whom the request is directed cannot be deemed to have admitted the genuineness of any relevant document described in and exhibited with the request or relevant matters of fact set forth therein on account of failure to answer the request for admission (Briboneria v. CA, G.R. No. 101682, Dec. 14, 1992). However, the answer to a request for admission properly served which was signed and sworn to by the counsel of the party so requested, is sufficient compliance with this rule, especially in the light of counsel’s authority under Secs. 21 and 23, Rule 138 (Nestle Philippines, Inc. v. CA, G.R. No. 102404, Feb. 1, 2002)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: When may request for admission be made? A: At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter. (Sec. 1, Rule 26). a. IMPLIED ADMISSION BY ADVERSE PARTY Q: When is there an implied admission? A: GR: Each of the matters of which an admission is requested shall be deemed admitted. XPN: Unless, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters (Sec. 2, Rule 26).

Q: When should objections to any request for admission be submitted? A: They shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable (Sec. 2[b], Rule 26). Q: May an admission be withdrawn? A: Yes. The court may allow the party making the admission to withdraw or amend the admission upon such terms as may be just (Sec. 4, Rule 26). d. EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION Q: What is the effect of failure to file and serve request for admission?

Note: When the defendant is silent on the plaintiff‘s request for admission, he is deemed to have impliedly admitted the facts set forth therein (Herrera, Vol. II, p. 56, 2007 ed.)

A: A party who fails to file and serve a request for admission on the adverse party on material and relevant facts at issue shall not be permitted to present evidence on such facts unless otherwise allowed by the court for good cause shown and to prevent a failure of justice (Sec. 5, Rule 26).

b. CONSEQUENCES OF FAILURE TO ANSWER REQUEST FOR ADMISSION

4. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

Q: What is the effect for failure to answer a request for admission?

Q: What may the court order under this mode of discovery?

A: The facts or documents are deemed admitted. Under the Rules, each of the matters of which an admission is requested shall be deemed admitted unless within a period designated in the request which shall not be less than 15 days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matter of which an admission is requested or setting forth in detail the reason why he cannot truthfully either admit or deny those matters. (Sec. 2, Rule 26)

A: Upon motion of any party showing good cause therefor, the court in which an action is pending may order any party to: 1. Produce and permit the inspection and copying or photographing, by or on behalf of the moving party, or of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or 2. Permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon (Sec. 1, Rule 27).

c. EFFECT OF ADMISSION Q: What is the effect of admission? A: Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding (Sec. 3, Rule 26).

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What are the limitations on the request for production or inspection of documents or things?

A: 1.

A: 1. 2.

3.

Should not be privileged; Should constitute or contain evidence material to any matter involved in the action and which are in his (the party ordered) possession, custody, or control (Sec. 1, Rule 27); and In the petition, the papers and documents to be produced must be sufficiently described.

2.

A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same. (Sec 1, Rule 27) The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (Sec 1, Rule 27)

5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS

Q: What are privileged communications? Q: When may physical and mental examination of persons be ordered?

A: 1.

2. 3. 4. 5. 6.

Communication between: a. Husband and wife b. Attorney and client c. Physician and patient d. Priest and penitent e. Public officers and public interest Editors may not be compelled to disclose the source of published news Voters may not be compelled to disclose for whom they voted Trade secrets Information contained in tax census returns; and Bank deposits.

Q: Distinguish the rule on production or inspection of documents or things under Rule 27 from subpoena duces tecum.

A: It may be ordered in an action in which the physical or mental condition of a party is in controversy (Sec. 1, Rule 28). Note: Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege.

Q: What is the procedure to avail physical and mental examination of persons? A: 1.

2.

A: Production or Inspection of Documents or Things Essentially a mode of discovery. Limited to the parties to the action. Issued only upon motion with notice to the adverse party.

Subpoena Duces Tecum Means of compelling production of evidence It may be directed to any person whether a party or not. Issued upon an ex parte application.

3.

4.

A motion must be filed showing good cause for the examination, with notice to the other parties as well aside from the party to be examined. (Sec 2, Rule 28) The motion shall specify the time, place, manner, conditions and scope of the examination and by the person/s by whom it is made. (Sec 2, Rule 28) The party examined may request the party causing the examination to be made to deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. (Sec 3, Rule 28) The party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. (Sec 3, Rule 28)

Note: This mode of discovery does not authorize the opposing party or the clerk of court or other functionaries of the court to distrain the articles or deprive the person who produced the same of their possession, even temporarily (Tanda v. Aldaya, GR No. L-13423, Nov. 23, 1959).

Q: What is the effect if the party refuses to deliver the report upon request to the person causing the examination to be made?

Q: What is the procedure to avail the production or inspection of documents or things?

A: The court may order requiring the delivery on such terms as are just. (Sec 3, Rule 28)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What is the effect if the physician refuses or fails to make a report?

1.

A: The court may exclude his testimony. (Sec 3, Rule 28) 2. Q: What is the effect if the party examined requests and obtains a report on the results of the examination? A:

He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition (Sec. 3, Rule 28) He 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 so examined or may thereafter examine him (Sec. 4, Rule 28).

6. CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY Q: What are the sanctions in case of refusal to comply with the modes of discovery? A: Refusal to answer any question upon oral examination Order to compel an answer; Contempt; Require payment of reasonable fees incurred by the proponent; Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. 5. Dismiss the action or the proceeding; 6. Render a Judgment by default against the disobedient party; 7. Refuse to allow the disobedient party to support or oppose claims or defenses; 8. Strike out all or any part of the pleading of the disobedient party; 9. Stay further proceedings until order is obeyed; 10. Order the arrest of the refusing party. Refusal to produce document or thing for inspection, copying or photographing 1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; 2. Refuse to allow the disobedient party to support or oppose claims or defenses; 3. Strike out all or any part of the pleading of the disobedient party; 4. Dismiss the action or the proceeding; 5. Render a Judgment by default against the disobedient party; 6. Stay further proceedings until order is obeyed; 7. Render a Judgment by default against the disobedient party 8. Order the arrest of the refusing party. Refusal to submit to Physical or Mental examination 1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; 2. Prohibit the disobedient party to introduce evidence of physical and mental conditions; 3. Strike out all or any part of the pleading of the disobedient party; 4. Dismiss the action or the proceeding; 5. Render a Judgment by default against the disobedient party; 6. Stay further proceedings until order is obeyed; 7. Render a Judgment by default against the disobedient party Refusal to the request for admission by adverse party 1. Require payment of reasonable fees incurred by the proponent (Secs. 1-4) 2. Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26). 1. 2. 3. 4.

Note: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the implied admission. The amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not been affected by the amendment.

Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. The matter of how, and when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending, having always in mind the paramount and overriding interest of justice (Zepeda v. China Banking Corp., G.R. No. 172175, Oct. 9, 2006).

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE M. TRIAL Q: When is a case ready for trial? Q: What is a trial? A: It is a judicial process of investigating and determining the legal controversies starting with the production of evidence by the plaintiff and ending with his closing arguments (Riano, Civil Procedure: A Restatement for the Bar, p. 394, 2009 ed.) Q: Is trial necessary? A: GR: When an issue exists, trial is necessary. Decision should not be made without trial. XPNs: There is no need for trial in the following cases: 1. Where the pleadings of the parties tender no issue at all, a judgment on the pleadings may be directed by the court (Rule 34); 2. Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment (Rule 35); 3. Where the parties have entered into a compromise or an amicable settlement either during the pre-trial or while the trial is in progress (Rule 18; Art. 2028, NCC); 4. Where the complaint has been dismissed with prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; last. par., Sec. 5, Rule 7); 5. Where the case falls under the operation of the Rules on Summary Procedure (Rule 17); 6. Where, the parties agree in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If however, there is no agreement as to all the facts in the case, trial may be held only as to the disputed facts (1996 Bar Question).

A: When the issues are joined. Issues are joined when all the parties have placed their respective theories and the terms of the dispute are placed before the court. Q: What is the rule on notice of trial? A: Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his receipt of that notice at least five (5) days before such date. (Sec.1, Rule 30) 1. ADJOURNMENTS AND POSTPONEMENTS Q: What is the rule on adjournment and postponement of trial? A: A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment, nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court. (Sec 2, Rule 30) Note: A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier (Republic vs Sandiganbayan) A motion for continuance or postponement is not a matter of right but is addressed to the sound discretion of the court, and its action thereon will not be disturbed by the appellate courts in the absence of clear and manifest abuse of discretion resulting in the denial of substantial justice.

2. REQUISITES OF MOTION TO POSTPONE TRIAL Q: What are postponements?

the

criteria

in

granting

Q: Distinguish trial from hearing. A: A: Trial Reception of evidence and other processes. The period for the introduction of evidence by both parties.

Hearing Not confined in trial but embraces several stages of litigation, including the pretrial stage. Does not necessarily imply presentation of evidence in open court but the parties are afforded the opportunity to be heard.

1. 2.

Reason for the postponement; Merits of the case of the movant a. FOR ABSENCE OF EVIDENCE

Q: What are the requisites of a motion to postpone trial for absence of evidence? A: Affidavit showing: a. The evidence is material or relevant

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 b.

That due diligence has been used to procure it

Note: But the adverse party may avoid it by admitting the facts sought to be proven by the absent evidence, even if he objects or reserves the right to their admissibility. (Sec.3, Rule 30)

b. FOR ILLNESS OF PARTY OR COUNSEL Q: What are the requisites of a motion to postpone trial for illness of party or counsel? A: Affidavit showing: a. Presence of such party or counsel at the trial is indispensable; b. Character of illness is such as to render his non-attendance excusable 3. AGREED STATEMENT OF FACTS Q: Distinguish stipulation of facts in civil cases visa-vis criminal cases. A: Civil Cases May be signed by the counsel alone who has a special power of attorney. May be made verbally or in writing.

Criminal Cases Must be signed both by the counsel and the accused. Strict. It must always be in writing.

Q: What is the rule on stipulation of facts? A: The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe (Sec. 7, Rule 30) Note: Stipulation of facts is not permitted in actions for annulment of marriage and for legal separation. 4. ORDER OF TRIAL; REVERSAL OF ORDER Q: What is the procedure in trial? A: Subject to the provisions of Sec. 2, Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

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Plaintiff shall adduce evidence in support of his complaint Defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third party complaint

Third party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim and fourth-party complaint

Fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them

Parties against whom any counterclaim or crossclaim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court

Parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case

Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings Note: If several defendants or third party defendants and so forth having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence (Sec. 5, Rule 30)

Q: When is a reverse order of trial allowed? A: Where the defendant, in his answer, relies upon an affirmative defense, a reverse order of trial shall take place. Since the defendant admits the plaintiff’s claim but seeks to avoid liability based on his affirmative defense he shall proceed first to prove his exemption.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 5. CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL

2.

Q: Distinguish consolidation from severance. A:

If filed with the different branches of the same RTC and one of such cases has not been partially tried. (Raymundo v. Felipe, G.R. No. L-30887, Dec. 24, 1971)

Q: When may civil actions be suspended? Consolidation

Involves several actions having a common question of law or fact which may be jointly tried (Sec.1, Rule 31).

Severance Contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints, or issues which may be separately tried.

A: 1.

2.

Q: What are the requisites for consolidation? A: 1. 2.

Actions involving a common question of law or fact; and There must be at least 2 actions pending before the same court (Sec.1, Rule 31).

Q: What are the ways of consolidating cases? A: Recasting the Cases Reshaping of the cases by amending the pleading, dismissing some cases and retaining only one case. There must be joinder of causes of action and of parties.

Consolidation Proper It is a joint trial with joint decision, the cases retaining their original docket numbers.

Test-Case Method By hearing only the principal case and suspending the hearing on the other cases until judgment has been rendered in the principal case. The cases retain their original docket numbers (Riano, Civil Procedure, p. 96, 2009 ed.).

Q: What is the rule on consolidation of cases? A:

If willingness to discuss a possible compromise is expressed by one or both parties; or If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer (Sec. 8, Rule 30; Art. 2030, NCC).

6. DELEGATION OF RECEPTION OF EVIDENCE Q: May the judge delegate the reception of evidence? A: GR: No. The judge shall personally receive and resolve the evidence to be adduced by the parties. XPN: The reception of evidence may be delegated to the Clerk of Court, under the following conditions: 1. The delegation may be made only in defaults or ex parte hearings, and in any case where the parties agree in writing; 2. The reception of evidence shall be made only by the clerk of that court who is a member of the bar; 3. Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits; and 4. He shall submit his report and transcripts of the proceedings, together with the objections to be resolved by the court, within 10 days from the termination of the hearing (Sec. 9, Rule 30). 7. TRIAL BY COMMISSIONERS

GR: Consolidation is discretionary upon the court to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, and simplify the work of the trial court and save unnecessary costs and expenses. XPNs: Consolidation becomes a matter of duty when: 1. If two or more cases are pending before the same judge; or

Q: Who is a commissioner? A: A person to whom a case pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered. Q: Distinguish delegation to clerk of court under Rule 30 from trial by commissioner under Rule 32.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 A:

b. POWERS OF THE COMMISSIONER

Delegation to Clerk of Court Delegation is made during trial. Clerk of court must be a lawyer. Clerk of court cannot rule on objections or on the admissibility of evidence.

Trial by Commissioner Commissioner can be appointed even after the case has become final and executory. Commissioner need not be a lawyer. Commissioner can rule on objections or on admissibility of evidence.

Q: What is the rule on trial by commissioner? A: GR: Discretionary upon the courts. XPNS: 1. 2. 3. 4.

Expropriation (Rule 67); Partition (Rule 69); Settlement of estate of a deceased person in case of contested claims; and Submission of accounting by executors or administrator.

Note: An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be remedied. It can be waived by consent of the parties, express or implied.

a. REFERENCE BY CONSENT OR ORDERED ON MOTION Q: How may a case be referred to a commissioner? A: By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court (Sec. 1, Rule 32). Q: When may a case be referred to a commissioner if the consent of the parties are not given? A: 1.

2.

3.

4.

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When the trial of an issue of fact requires the examination of a long account on either side; When the taking of an account is necessary for the information of the court before judgment; When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case; or For carrying a judgment or order into effect (Sec. 2, Rule 32).

Q: What are the powers of a commissioner? A: 1. 2.

3. 4. 5.

Power to regulate the proceedings in every hearing before him; Do all acts and take all measures necessary or proper for the efficient performance of his duties under the order of reference; Issue subpoenas ad testificandum and duces tecum; Swear witnesses; and Rule upon the admissibility of evidence (Sec.3, Rule 32).

Note: Requirement of hearing cannot be dispensed with as this is the essence of due process.

Q: What is the effect of failure of parties to appear before a commissioner? A: The commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment (Sec.6, Rule 32) c. COMMISSIONER’S REPORT; NOTICE TO PARTIES AND HEARING ON THE REPORT Q: What is a commissioner’s report? A: Upon completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions or law in his report. He shall attach in his report all exhibits, affidavits, depositions, papers and the transcript, if any, of the evidence presented before him (Sec. 9). Note: The commissioner’s report is not binding upon the court which is free to adopt, modify, or reject, in whole or in part, the report. The court may receive further evidence or recommit the report with instructions (Sec. 11, Rule 32; Baltazar vs. Limpin, 49 Phil. 39).

Q: What is the rule on notice of filing of the report? A: Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (l0) days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. (Sec.10, Rule 32)

appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (Sec.1, Rule 33)

Note: GR: Notice of the filing of the report must be sent to the parties for the purpose of giving them an opportunity to present their objections (Santos vs. Guzman, 45 Phil. 646). The failure to grant the parties, in due form, this opportunity to object, may, in some instances, constitute a serious error in violation of their substantial rights (Govt. vs. Osorio, 50 Phil. 864).

A:

XPN: The rule, however, is not absolute. In Manila Trading and Supply Co. vs. Phil. Labor Union, 71 Phil. 539, it was ruled that although the parties were not notified of the filing of the commissioner’s reports, and the court failed to set said report for hearing, if the parties who appeared before the commissioner were duly represented by counsel and given an opportunity to be heard, the requirement of due process has been satisfied, and a decision on the basis of such report, with the other evidence of the case is a decision which meets the requirements of fair and open hearing.

Q: What should be heard commissioner’s report hearing?

during

Q: What is the effect of filing of demurrer to evidence?

Motion Granted but Reversed on Appeal Movant shall have the Movant is deemed to have right to present his waived his right to present evidence evidence. The decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence. Denial is interlocutory, hence, not appealable. Order of the court is an Sec. 1, Rule 36 (that adjudication on the merits. judgment should state Hence, the requirement in clearly and distinctly the Sec. 1, Rule 36 should be facts and the law on which complied with. it is based), will not apply. Motion Denied

the

A: In the hearing to be conducted on the commissioner’s report, the court will review only so much as may be drawn in question by proper objections. It is not expected to rehear the case upon the entire record (Kreidt vs. McCullough and Co., 37 Phi. 474).

Note: A demurrer to evidence under Rule 33 is in effect, a motion to dismiss but is not the same as what is described in Rule 16.

Q: Distinguish a demurrer to evidence from a motion to dismiss. A: Motion to Dismiss (Rule 16)

N. DEMURRER TO EVIDENCE Q: What is demurrer to evidence? A: It is a motion to dismiss based on the ground of insufficiency of evidence and is presented after the plaintiff rests his case (Regalado, Vol. I, p. 391, 2005 ed.). The aim of this rule is to discourage prolonged litigation.

When to file

Grounds

Note: There is only a one side trial, i.e. it is only the plaintiff who has presented evidence.

Q: When may a party to the case move for dismissal based on insufficiency of evidence? A: After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on

If denied

If granted

Before filing of answer

The 10 grounds enumerated in Rule 16

The defendant may file his responsive pleading. The complaint may be refiled depending on the ground of dismissal.

Demurrer to Evidence (Rule 33) After the plaintiff rests its case or after the completion of the presentation of evidence That upon the facts and the law, the plaintiff has shown no right to relief

The defendant may present his evidence. The complaint may NOT be filed. The remedy of the plaintiff is to appeal from the dismissal.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: ABS Co. is the operator of several buses. One of the buses owned by ABS Co. rammed with a dump truck causing the instantaneous death of Nilo, one of the passengers of the ill-fated bus. Consequently, Nestor, son of Nilo, filed a complaint against ABS Co. for damages. After Nestor had rested his case, ABS Co. filed a demurrer to evidence, contending that Nestor's evidence is insufficient because it did not show (1) that ABS Co. was negligent and (2) that such negligence was the proximate cause of the collision. Should the court grant or deny defendant's demurrer to evidence? Reason briefly.

2. EFFECT OF DENIAL Q: What is the effect of denial of demurrer to evidence? A: 1. 2. 3.

A: No, the court should not grant defendant’s demurrer to evidence. Under the Rules of Court, after the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Here, Nestor has shown that he is entitled to the relief he is asking for. ABS Co. is a common carrier. Under Article 1756 of the Civil Code, in case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence. Proof that the defendant was negligent and that such negligence was the proximate cause of the collision is not required. Thus, without proof that ABS Co. has exercised extraordinary diligence, the presumption of negligence stands. (2004 Bar Question)

4.

3. EFFECT OF GRANT Q: What is the effect of granting the demurrer to evidence? A: 1.

The case shall be dismissed.

Note: The plaintiff may file an appeal and if that appeal was granted, the defendant loses his right to present evidence. (Sec.1, Rule 33)

2.

Upon appeal, the appellate court reversing the order granting the demurrer should not remand the case to the trial court. Instead, it should render judgment based on the evidence submitted by the plaintiff. (Radiowealth Finance Corporation vs Del Rosario, 335 SCRA 288)

3.

The demurrer to evidence abbreviates judicial proceedings.

Q: What is judgment on demurrer to evidence? A: It is a judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief.

The defendant shall have the right to present his evidence (Sec. 1, Rule 33) The court shall set the date for the reception of the defendant’s evidence. An order denying a demurrer to evidence not appealable (because it is interlocutory) XPN: It can be subject to petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority. The right to present evidence after denial of demurrer to evidence does not apply to election cases.

1. GROUND

4. WAIVER OF RIGHT TO PRESENT EVIDENCE

Q: On what ground may the demurrer to evidence be filed?

Q: When is there a waiver of right to present evidence?

A: The only ground for demurrer to evidence is that the plaintiff has no right to relief.

A: If the demurrer is granted but on appeal the order of dismissal is reversed, the defendant is deemed to have waived his right to present evidence (Sec.1, Rule 33)

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 5. DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO EVIDENCE IN A CRIMINAL CASE Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases. A: Leave of court If granted

Civil Case Not required The Plaintiff may appeal from the order of dismissal of the case

Criminal Case With or Without The Plaintiff cannot make an appeal from the order of dismissal due to the constitutional prohibition against double jeopardy The Defendant may adduce his evidence only if the demurrer is filed with leave of court.

The Defendant may proceed to adduce his evidence If denied

If the plaintiff appeals from the order of dismissal

How can demurrer be denied?

If there was no leave of court, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence If the court finds plaintiff’s evidence insufficient, it will grant the demurrer by dismissing the complaint. The judgment of dismissal is appealable by the plaintiff. If plaintiff appeals and judgment is reversed by the appellate court, it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence. No res judicata in dismissal due to demurrer

If the court finds the prosecution’s evidence insufficient, it will grant the demurrer by rendering judgment acquitting the accused. Judgment of acquittal is not appealable; double jeopardy sets in

The plaintiff files a motion to deny motion to demurrer to evidence.

O. JUDGMENTS AND FINAL ORDERS

The court may motu proprio deny the motion.

5.

Q: What is a judgment? A: It is a final consideration and determination by a court of the rights of the parties, upon matters submitted to it in an action or proceeding. Q: What are the kinds of judgment? A:

6. 1.

2.

3.

4.

Judgment upon compromise – It is one conferred on the basis of a compromise agreement entered into between the parties. Judgment by confession – It is one rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him. Judgment upon the merits – It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. Clarificatory judgment – It is rendered to clarify an ambiguous judgment or one difficult to comply with.

7.

8.

9.

Judgment nunc pro tunc (Now for then) – A judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. Its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to make the record speak the truth, without any changes in substance or any material respect. Judgment sin perjuicio – Judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. This is not allowed. Judgment by default (Sec. 3, Rule 9) – Rendered by the court following a default order or after it received, ex parte, plaintiff’s evidence. Judgment on the pleadings (Rule 34) – Proper when an answer fails to tender an issue because of a general or insufficient denial of the material allegations of the complaint or when the answer admits the material allegations of the adverse party's pleading. Summary judgment (Rule 35) – One granted by the court for the prompt

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. Several judgment (Sec. 4, Rule 36) – It is one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others. Separate judgment (Sec. 5, Rule 36) – It is one rendered disposing of a claim among several others presented in a case, after 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 said claim. Special judgment (Sec. 11, Rule 39) – One which can only be complied with by the judgment obligor because of his personal qualifications or circumstances or one that requires the performance of an act other than: a. Payment of money; and b. Sale of real and personal property. Judgment for specific acts (Sec. 10, Rule 39) – Applicable in cases of: 1. Conveyance, delivery of deeds, or other specific acts, vesting title; 2. Sale of real or personal property; 3. Delivery or restitution of real property; 4. Removal of improvements on property subject of execution; or 5. Delivery of personal property. Judgment on demurrer to evidence (Rule 33) – A judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief. Conditional judgment – It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. Final judgment – One which disposes of the whole subject matter or terminates the particular proceedings or action, leaving nothing to be done by the court but to enforce by execution what has been determined.

A:

Q: What are those which are not considered as decisions?

A:

10.

11.

12.

13.

14.

15.

16.

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1.

2.

3.

Resolutions of Supreme Court denying the petitions to review decisions of Court of Appeals. Minute Resolutions – if issued by SC denying or dismissing a petition or a motion for reconsideration for lack of merit, it is understood that the challenged decision or order is deemed sustained. Interlocutory Orders – those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. E.g. Order denying a motion to dismiss, granting an extension of time or authorizing an amendment. Note: Appeal is not proper to question an interlocutory order. The proper remedy to question an interlocutory order is a petition for certiorari under Rule 65.

1. JUDGMENT WITHOUT TRIAL Q: What is a judgment without trial? A: The theory of summary judgment is that although an answer may on its face appear to tender issues—requiring trial—yet if it is demonstrated by affidavits, depositions, or admissions that those issues are not genuine, but sham or fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for plaintiff. The court is expected to act chiefly on the basis of the affidavits, depositions, admissions submitted by the movants, and those of the other party in opposition thereto. The hearing contemplated (with 10-day notice) is for the purpose of determining whether the issues are genuine or not, not to receive evidence on the issues set up in the pleadings. A hearing is not thus de riguer. The matter may be resolved, and usually is, on the basis of affidavits, depositions, admissions. Under the circumstances of the case, a hearing would serve no purpose, and clearly unnecessary. The summary judgment here was justified, considering the absence of opposing affidavits to contradict the affidavits (Galicia vs. Polo, L-49668, Nov. 14, 1989; Carcon Devt. Corp. vs. CA, GR 88218, Dec. 17, 1989). 2. CONTENTS OF A JUDGMENT Q: What are the two parts of a judgment?

1. 2.

Ratio decidendi – the body of judgment Fallo – The dispositive portion of the judgment. It is also the part of judgment that is subject to execution because this is

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE the judgment of the court itself, i.e. if the petition is granted or denied and the relief granted.

Note: in the above cases, the material facts alleged in the complaint shall always be proved (Sec. 1, Rule 34)

4. SUMMARY JUDGMENTS Q: How should a conflict between the parts of a decision be resolved? GR: If there is a conflict between the ratio decidendi and the fallo, the fallo should prevail. Reason: the fallo is the final order while the ratio decidendi is merely a statement ordering nothing. XPN: If there is a mere mistake in the fallo and the the ratio decidendi is so clear that it states a conclusion, the latter should prevail. (Poland Industrial Limited vs. National Development Company, 467 SCRA 500) Q: What are the requisites of a valid judgment? A: 1. 2. 3. 4. 5.

6.

Authority of the court to hear and determine the case. Jurisdiction – over the parties and the subject matter The parties must have been given an opportunity to adduce evidence. The evidence must have been considered by the tribunal in deciding the case. The judgment must be in writing, personally and directly prepared by the judge. The judgment must state clearly the facts and the law on which it is based, signed by the judge and filed with the clerk of court. NOTE: Only for decisions and final orders on merits and does not apply to those resolved through incidental matters.

3. JUDGMENT ON THE PLEADINGS

Q: What is a summary judgment? A: A summary judgment or accelerated judgment is a procedural technique to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record, of for weeding out sham claims or defenses at an early stage of the litigation to avoid the expense and loss of time involved in a trial. Its object is to separate what is formal or pretended denial or averment from what is genuine and substantial so that only the latter may subject a party-in-interest to the burden of trial. Moreover, said summary judgment must be premised on the absence of any other triable genuine issues of fact. Otherwise, the movants cannot be allowed to obtain immediate relief. A genuine issue is such issue of fact which requires presentation of evidence as distinguished from a sham, fictitious, contrived or false claim (Monterey Foods Corp. vs. Eserjose, GR 153126, Sept. 11, 2003). Q: What are judgments?

the

requisites

of

summary

A: 1.

2.

There must be no genuine issue as to any material fact, except for the amount of damages; and The party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. a. FOR THE CLAIMANT

Q: When is a claimant allowed to file for summary judgment?

Q: When is there a judgment based on pleadings?

Note: Judgment must be on motion of the claimant. It cannot be rendered by the court motu proprio.

A: A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof (Sec. 1, Rule 35).

Q: What are cases where judgment on the pleadings will not apply?

b. FOR THE DEFENDANT

A: Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading.

A: 1. 2. 3.

Actions for the declaration of nullity of a marriage Actions for annulment of marriage Actions for legal separation

Q: When is a defendant allowed to file for summary judgment? A: A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof (Sec. 2, Rule 35).

d. AFFIDAVITS AND ATTACHMENTS Q: What are the rules on affidavits and attachments on summary judgments?

c. WHEN THE CASE NOT FULLY ADJUDICATED A: Q: What happens when a case is not fully adjudicated? A: If on motion, judgment is not rendered upon the whole case of for all the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly (Sec. 4, Rule 35).

1.

2.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Sec. 5, Rule 35). Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to the Rules are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt (Sec. 6, Rule 35).

5. JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS

Answer

Notice Termination Who can file

Basis of the judgment

Judgment on the pleadings Answer does not tender an issue

Movants must give a 3-day notice of hearing Entire case may be terminated Only the plaintiff or the defendants as far as the counterclaim, cross-claim or third-party complaint is concerned can file the same Based only on the pleadings alone, hence, only on the complaint and the answer

6. RENDITION OF JUDGMENTS AND FINAL ORDERS Q: What is a rendition of judgment? A: Rendition of judgment is the filing of the same with the clerk of court. It is not the pronouncement of the judgment in open court that constitutes the rendition. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court (Ago vs.

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Summary judgments There is an issue tendered in the answer, but it is not genuine or real issue as may be shown by affidavits and depositions that there is no real issue and that the party is entitled to judgment as a matter of right Opposing party is given 10 days notice May only be partial Either the plaintiff or the defendant may file it

Based on the pleadings, affidavits, depositions, and admissions

CA, 6 SCRA 530). It is not the writing of the judgment or its signing which constitutes rendition of the judgment (Castro vs. Malazo, 99 SCRA 164). Q: How should a judgment be prepared? A: A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court (Sec. 1, Rule 36).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE its periods, not more than six (6) months from the entry of the judgment or final order (Sec. 3, Rule 38).

7. ENTRY OF JUDGMENT AND FINAL ORDER Q: What is an entry of judgment?

P. POST JUDGMENT REMEDIES

A: The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment and after the same has become final and executory. The record shall contain the dispositive portion of the judgment or final order and shall be signed by the clerk of court, with a certificate by said clerk that the judgment has already become final and executory (Sec. 2, Rule 36). Q: What happens if no appeal was filed on time? A: If no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. (Sec. 2, Rule 36) Note: There are some proceedings the filing of which is reckoned from the date of the entry of judgment: (a) the execution of a judgment by motion is within five (5) years from the entry of the judgment (Sec. 6, Rule 39); (b) the filing of a petition for relief has, as one of

Q: What are the available remedies to the aggrieved party after rendition of judgment? A: The remedies against a judgment may refer to those remedies before a judgment becomes final and executory and those remedies after the same becomes executory. 1. Before a judgment becomes final and executory, the aggrieved party may avail of the following remedies: a. Motion for Reconsideration; b. Motion for New Trial; and c. Appeal 2. After the judgment becomes executory, the losing party may avail of the following: a. Petition for relief from judgment; b. Action to annul judgment; c. Certiorari; and d. Collateral attack of a judgment.

1. MOTION FOR NEW TRIAL OR RECONSIDERATION a. GROUNDS b. WHEN TO FILE Q: Distinguish motion for new trial from motion for reconsideration. A: MOTION FOR NEW TRIAL

MOTION FOR RECONSIDERATION

Grounds 1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) which ordinary prudence could not have guarded against and by reason of which the rights of the aggrieved party was impaired; or 2. Newly discovered evidence, which could not with reasonable diligence, have been discovered and produced at the trial, and which if presented, would probably alter the result (Sec. 1, Rule 37). Requisites 1. Must be in writing; 2. Affidavit of the existence of FAME and newly discovered evidence; Note: Whenever a remedy is allowed on the ground of FAME, an affidavit of merit is obligatory. 3. Affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action; 4. In case of newly discovered evidence: a. Affidavit of new witnesses; and b. Duly authenticated documents to be introduced.

1. 2. 3.

1. 2.

The damages awarded are excessive; The evidence is insufficient to satisfy the decision or final order; or The decisionor final order is contrary to law (Sec. 1, Rule 37). Must point out specifically the conclusion of judgment; Express reference to testimonial or documentary evidence or to provisions of law.

Both shall be made in writing stating the ground / grounds therefor, a written notice of which shall be served by the movant on the adverse party. (Sec. 2, Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15. The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere scrap of paper and will not toll the reglementary period for appeal. When to file ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 A motion for new trial or reconsideration should be filed within the period for taking an appeal. Hence, it must be filed before the finality of the judgment (Sec. 1, Rule 37). No motion for extension of time to file a motion for reconsideration shall be allowed. In DistilleriaLimtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is within the period for taking an appeal. Note: The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40). Second motion may be allowed so long as based on grounds not existing or available at the time the first motion was made. (Sec. 5, Rule 37)

If granted, the original judgment or final order shall be vacated, and the action shall stand for trial de novo. The recorded evidence taken upon the former trial, insofar as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6, Rule 37).

Single motion rule (applicable only on a judgment or final order but not to interlocutory order) (Sec. 5, Rule 37) No new trial or hearing will take place and the judgment will be based on the pleadings submitted by the parties. If granted, the court may amend such judgment or final order accordingly (Sec. 3, Rule 37).

Note: The amended judgment is in the nature of a new judgment which supersedes the original judgment. If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37).

Available even on appeal but only on the ground of newly discovered evidence.

Available against judgments or final orders of both the trial and appellate courts.

Both must be resolved within 30 days from the time it is submitted for resolution Both are prohibited motions under Summary Procedure

COMMON PROVISIONS Q: What is the period to file motion for new trial or reconsideration? A: Within the period for taking an appeal or within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order (Section 1, Rule 40). Note: No extension of time to file a Motion for New Trial or Motion for Reconsideration shall be allowed.

Q: When is a record of appeal required? A: A record of appeal is required only in: 1. Special proceedings; 2. Other cases of multiple or separate appeal (Section 3, Rule 40) Q: What is the effect of filing a MNT/ MR on the period to appeal? A: The filing of a timely motion interrupts the period to appeal (Section 2, Rule 40; Section 3, Rule 41).

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c. DENIAL OF THE MOTION; EFFECT Q: What is the effect if the MNT or MR is denied? A: The movant has a “fresh period” of 15 days from the receipt or notice of the order denying or dismissing the motion within which to file a notice of appeal (fresh period rule). (Neypes v. CA, G.R. No.141524, Sept. 14, 2005) d. GRANT OF THE MOTION; EFFECT Q: What is the effect of a grant of the motion? A: If a new trial be granted in accordance with the provisions of the rules, the original judgment shall be vacated or set aside, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6). The filing of the motion for new trial or reconsideration interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41). If the court grants the motion (e.g., it finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law), it may amend such judgment or final order

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE accordingly (Sec. 3). The amended judgment is in the nature of a new judgment which supersedes the original judgment. It is not a mere supplemental decision which does not supplant the original but only serves to add something to it (Esquivel vs. Alegre, 172 SCRA 315). If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less that all of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7). e. REMEDY WHEN MOTION IS DENIED, FRESH 15DAY PERIOD RULE Q: What is the remedy if the motion is denied? A: The remedy is to appeal from the judgment or final order itself subject of the motion for reconsideration or new trial (Sec. 9, Rule 37, Rules of Court). The movant has a fresh period of fifteen days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal. It is no longer assailable by certiorari. (Sec.9, Rule 37, A.M. No. 077-12-SC). Q: When does the fresh period rule apply? A: It applies to: 1. Rule 40 – MTC to RTC 2. Rule 41 – Appeals from RTC 3. Rule 42 – Petition for Review from RTC to CA 4. Rule 43 – Appeals from quasi-judicial agencies to CA 5. Rule 45 – Appeals by certiorari to the SC

Q: What happens if the motion is filed without the required affidavits? A: Non- compliance with the requirements of the Rules would reduce the motion to a mere proforma motion. Note: Under Sec. 2,Rule 37 a pro- forma motion shall not toll the reglementary period of appeal.

Q: What is a pro- forma motion? A: A pro- forma motion is one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings (Marikina Development Corporation v. Flojo, 251 SCRA 87). MOTION FOR NEW TRIAL Q: What is a Motion for New Trial? A: It is a motion for the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory, whereby errors of law or irregularities are expunged from the record or new evidence is introduced, or both steps are taken. Q: What are the requisites of newly discovered evidence as a ground for New Trial? A: 1. 2.

Note: The “fresh period rule” does not refer to the period within which to appeal from the order denying the motion for reconsideration, but to the period within which to appeal from the judgment itself because an order denying a motion for reconsideration is not appealable.

3.

Q: When should the motion be resolved? A: The motion shall be resolved within 30 days from the time it is submitted for resolution (Section 4, Rule 37).

The evidence was discovered after trial; Such evidence could not have been discovered and produced at the trial with reasonable diligence; and Such evidence is material, not merely cumulative, corrobative or impeaching, and is of such weight that if admitted would probably change the judgment (BERRY RULE) (CIR v. A. Soriano Corporation, GR No. 113703 January 31, 1997).

Q: Distinguish Newly Discovered Evidence from Forgotten Evidence. A:

Q: Is a MNT/ MR a prerequisite for taking an appeal or petition for review? A: A final MNT/ MR is not a prerequisite to an appeal, a petition for review or petition for review on certiorari. And since the purpose is to expedite the final disposition of cases, a strict or prospective application of said ruling is in order (Habaluyas v. Japson, GR No. 70895, May 30, 1986).

NEWLY DISCOVERED EVIDENCE Evidence was not available to a party during a trial, and was discovered only thereafter.

FORGOTTEN EVIDENCE Evidence was already available to a party and was not presented through inadvertence or negligence of the counsel; it is not a ground for new trial.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Distinguish extrinsic fraud from intrinsic fraud. A: EXTRINSIC FRAUD Connotes any fraudulent scheme executed by the prevailing party outside trial against the losing party who because of such fraud was prevented from presenting his side of the case

INTRINSIC FRAUD Refers to the acts of party during trial which does not affect the presentation of the case

Q: Distinguish Motion for New Trial from Motion for Reopening of the Trial.

A: The purpose of a motion for reconsideration is precisely to request the court or the quasi- judicial body to take a second look at its earlier judgment and correct any errors it may have committed therein (Reyes v. Pearlbank Securities, GR No. 171435, July 30, 2008). Q: Is a second motion for reconsideration allowed? A: A second motion for reconsideration is not allowed. The prohibition on a second motion applies only when the motion is directed against a judgment or a final order. The rule does not apply to a motion for reconsideration of an interlocutory order. Q: When may there be partial reconsideration?

A: MOTION FOR NEW TRIAL A motion must be filed Proper only after promulgation of judgment Based upon specific grounds mentioned in Sec. 37 in civil cases and Sec. 121 in criminal cases

MOTION FOR REOPENING OF TRIAL The judge may act motu propio May properly be presented only after either or both parties have formally offered and closed their evidence before judgment Controlled by no other than the paramount interest of justice, resting entirely on the sound discretion of the court, the exercise of such shall not be reviewable on appeal UNLESS a clear abuse thereof is shown.

A: If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7, Rule 37). Q: In a case filed by Pedro against Juan, the latter received the adverse decision of the RTC on March 1, 2008. On March 14, 2008, Juan filed a motion for reconsideration. Juan received the decision of the trial court dismissing his motion on April 1, 2008. When should Juan file his notice of appeal to the CA?

Q: Is a second motion for new trial allowed? A: Yes. A second motion for new trial is authorized by the Rules. A motion for new trial shall include all grounds then available. Those not so included are deemed waived. However, when a ground for a new trial was not existing or available when the first motion was made, a second motion for new trial may be filed within the period allowed but excluding the time during which the first motion had been (Section 5, Rule 37) MOTION FOR RECONSIDERATION Q: What is a motion for reconsideration? A: A motion for reconsideration under Rule 37 is one that is directed against a judgment or a final order. It is not the motion for reconsideration of an interlocutory order which for instance precedes a petition for certiorari. Q: What is the purpose of a MR?

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A: Juan has 15 days from the receipt of the decision of the trial court denying his motion for reconsideration to file his notice of appeal. To standardize the appeal periods provided in the Rules of Court and to afford litigants fair opportunity to appeal their cases, the SC deemed it practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. Sec. 3, Rule 41 of the 1997 Rules of Civil Procedure states that the appeal shall be taken within 15 days from notice of judgment or final order appealed from. The order denying the motion for new trial or reconsideration is the “final order” (Fresh period rule) (Neypes v. CA, G.R. No. 141524, Sept. 14, 2005). 2. APPEALS IN GENERAL Q: Is the right to appeal part of due process?

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE A: The right to appeal is not part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law (Stolt- Nielsen v. NLRC, GR No. 147623, December 13, 2005). Q: What are the basic guidelines as regards appeal? A: a. No trial de novo shall be made. The appellate courts must decide the case on the basis of the record, except when the proceedings were not duly recorded as when there was absence of a qualified stenographer (Sec. 22[d], BO 129; Rule 21[d], Interim Rules); b. There can be no new parties; c. There can be no change of theory (Naval vs. CA, 483 SCRA 102); d. There can be no new matters (Ondap vs. Aubga, 88 SCRA 610); e. There can be amendments of pleadings to conform to the evidence submitted before the trial court (Dayao vs. Shell, 97 SCRA 407); f. The liability of solidarity defendant who did not appeal is not affected by appeal of solidarity debtor (Mun. of Orion vs. Concha, 50 Phil. 679); g. Appeal by guarantor does not inure to the principal (Luzon Metal vs. Manila Underwriter, 29 SCRA 184); h. In ejectment cases, the RTC cannot award to the appellant on his counterclaim more than the amount of damages beyond the jurisdiction of the MTC (Agustin vs. Bataclan, 135 SCRA 342); i. The appellate court cannot dismiss the appealed case for failure to prosecute because the case must be decided on the basis of the record (Rule 21, Interim Rules). Q: Distinguish Notice of Appeal from Record on Appeal? A: NOTICE OF APPEAL Deemed perfected as to him upon the filing of the notice of appeal. If decision is made by the courts of 1st level, notice of appeal need not state the court to which the appeal is being taken (Sec.3, Rule 40) because there is only one court to which it shall be made – RTC If decision is made by the

RTC in its original jurisdiction, notice of appeal to the RTC must disclose where appeal is to be taken. (Sec 5, rule 41) Period available is 15 days before the judgment becomes final and executor

appeal beyond that period)

If required, the appellant has 30 days to file and serve both notice and record on appeal. Should indicate: If required, copies of 1.Parties to the appeal; both the notice of 2.Judgment or final order or appeal and the record part thereof appealed from; on appeal shall be filed 3.Material dates showing the In court and served to timeliness of the appeal the adverse party.

Q: What are those cases which allow multiple appeals? A: The civil cases which admit of multiple appeals are: 1. Actions for recovery of property with accounting; 2. Actions for partition of property with accounting; 3. Special civil actions of eminent domain and foreclosure of mortgage; and 4. Special proceedings. Q: What is the rationale for allowing multiple appeals? A: To enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final (Roman Catholic Archbishop of Manila v. CA, GR No. 111324, July 5, 1996). a. JUDGMENT AND FINAL ORDERS SUBJECT TO APPEAL Q: What kind of judgments and final orders are subject to appeal?

RECORD ON APPEAL Required only in Special Proceedings and other cases of multiple or separate appeals.

A: An appeal may be taken only from judgments or final orders that completely dispose of the case (Sec.1, Rule 41). An interlocutory order is not appealable until after the rendition of the judgment on the merits.

Deemed perfected as to him with respect to the subject matter thereof upon its approval. (30 days is the period for filing, only the court may approve the record on

b. MATTERS NOT APPEALABLE Q: What cases are not appealable? A: 1. Order denying a petition for relief or any similar motion seeking relief from judgment; 2. Interlocutory order;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 3. Order disallowing or dismissing an appeal; 4. Order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; 5. Order of execution; 6. Judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and 7. Order dismissing an action without prejudice (Sec. 1 as amended by A.M. No. 07-7-12-SC).

Q: Can the court consider errors not raised in the assignment of errors? A: GR: No. The court as a rule shall not consider errors not raised in the assignment of errors XPN: Sec. 5, Rule 51 precludes its absolute application. The court may consider an error not raised on appeal provided the same falls within any of the following categories: a. b. c.

Note: The order denying a motion for new trial or reconsideration has been deleted from the list by virtue of A.M. No. 07-7-12-SC.

Q: Can a question that was never raised in the courts below be allowed to be raised for the first time on appeal? A: GR: No. A question that was never raised in the courts below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair play, justice and due process (Bank of Commerce vs. Serrano, 451 SCRA 484). For an appellate court to consider a legal question, it should have been raised in the court below (PNOC vs. CA, 457 SCRA 32). It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. it is true that this rule admits of exceptions as in cases of lack of jurisdiction, where the lower court committed plain error, where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy (Baluyot vs. Poblete, GR 144435, Feb. 6, 2007). XPNs: The rule admits of exceptions as in cases of: a. Lack of jurisdiction; b. Where the lower court committed plain error; c. Where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy (Baluyot v. Poblete GR No. 144435, February 6, 2007).

d.

e.

It is an error that affects the jurisdiction over the subject matter; It is an error that affects the validity of the judgment appealed from; It is an error which affects the proceedings; It is an error closely related to or dependent on an assigned error and properly argued in the brief; or It is a plain and clerical error.

Q: What is the basis of the court’s power to rule on such issues not raised on appeal? A: The court is imbued with sufficient authority and discretion to review matters, not otherwise assigned as errors on appeal, as it finds that the consideration is necessary in arriving at a complete and just resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice (Asian Terminals, Inc. v.NLRC, 541 SCRA 105, 2007). c. REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE NOT APPEALABLE Q: What is the remedy in cases where appeal is not allowed? A: GR: In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65 (Sec. 1 Rule 41). XPN: An order denying a motion for new trial or a motion for reconsideration may no longer be assailed by way of Rule 65 as per A.M. No. 07- 712, the proper ground is to appeal from the judgment (Sec. 9, Rule 37). d. MODES OF APPEAL Q: What are the different modes of appeal? A: 1.

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Ordinary appeal (Rule 40 and 41)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE a. b.

Notice on appeal Record on appeal

2. 3.

Petition for review (Rule 42, 43) Appeal by certiorari(Rule 45)

Q: Distinguish the following modes of appeal. A: MODE OF APPEAL

Ordinary Appeal (MTC to RTC) Rule 40 a. Notice of Appeal

b.

Record of Appeal

Ordinary Appeal (RTC to CA) Original Jurisdiction Rule 41 a. Notice of Appeal

b.

Record of Appeal

Petition for Review (RTC to CA) Appellate Jurisdiction Rule 42

Petition for Review (QuasiJudicial Bodies to CA) Rule 43

PERIOD OF APPEAL

Within 15 days after notice to the appellant of the judgment or final order appealed (Sec 2. Rule 40).

PERIOD OF APPEAL IF A MR OR MNT WAS FILED (Neypes Doctrine)

ISSUES THAT MAY BE RAISED

Within 15 days from receipt of the order denying motion for reconsideration or new trial.

Questions of fact or mixed questions of fact and law.

Within 30 days after notice of the judgment or final order (Sec 2. Rule 40).

Within 15 days after notice to the appellant of the judgment or final order appealed (Sec 3. Rule 41).

Within 15 days from receipt of the order denying motion for reconsideration or new trial.

Within 30 days after notice of the judgment or final order (Sec 3. Rule 41). Note: appeal in habeas corpus cases shall be taken within 48 hours from notice of the judgment or final order appealed from (AM No. 01-1-03-SC, June 19, 2001) Within 15 days from notice of the decision to be reviewed or from the denial of a MR or new trial (Sec. 1 Rule 42). Note: The court may grant an additional period of 15 days provided the extension is sought: a. Upon proper motion; and b. Upon payment of the full amount of the docket and other lawful fees before the expiration of the reglementary period. Within 15 days from receipt of judgment or final order or of last publication (Sec. 4, Rule 43).

Questions of fact or of law or mixed question of fact and law that has been raised in the court below and is within the issues framed by the parties (Sec. 15, Rule 44).

Questions of fact, of law, or mixed questions of fact and law Within 15 days from receipt of the order denying motion for reconsideration or new trial.

Within 15 days from receipt of the order denying motion for reconsideration or new trial.

Questions of fact, of law, or mixed questions of fact and law (Sec. 3, Rule 43). Note: The appeal shall not stay the award, judgment, final order unless the CA directs otherwise (Sec. 12, Rule 43).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Petition for Review on Certiorari Rule 45 1. RTC to SC (Sec 2c, Rule 41); 2. CA to SC (Sec. 1, Rule 45); 3. Sandiganbayan to SC (Sec. 1, Rule 45); 4. CTA en banc to SC (Sec. 11, RA 9282; Sec. 1 Rule 45 as amended by AM No. 07- 7-12- SC); 5. Appeals from a judgment or final order in a petition for a writ of amparo to the SC (AM No. 07-9-12- SC); and 6. Appeals from a judgment or final order in a petition for a writ of Habeas Data (AM No. 08-116-SC).

Within 15 days from notice of the judgment, final order or resolution appealed from, or within 15 days from notice of the denial of the petitioner’s motion for new trial or motion for reconsideration filed in due time (Sec. 2, Rule 45). Note: The SC may for justifiable reason grant an extension of 30 days only within which to file the petition provided: a. There is a motion for extension of time duly filed and served; b. There is full payment of the docket and other lawful fees and the deposit for costs; and c. The motion is filed and served and the payment is made before the expiration of the reglementary period (Sec. 2, Rule 45).

Within 15 days from receipt of the order denying motion for reconsideration or new trial

Only questions of law (Sec. 1, Rule 45).

Note: This fresh period rule applies Rule 40,41,42,43, and 45. Accordingly, this rule was adopted to standardize the appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of judgment. Obviously, the new 15 day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41. (Neypes vs. CA, GR 141524, Sept. 14, 2005)

BEFORE FINALITY OF JUDGMENT (1) ORDINARY APPEAL (2) PETITION FOR REVIEW (3) PETITION FOR REVIEW ON CERTIORARI Q: Distinguish an ordinary appeal from a petition for review. A: Ordinary Appeal A matter of right All the records are elevated from the court of origin Notice or record on appeal is filed with the court of origin As to duration of residual powers: Until the records are transmitted to the appellate court.

Petition for Review Discretionary No records are elevated unless the court decrees it Filed with the CA As to duration of residual powers: Until the CA gives due course to the petition.

Q: Distinguish Rule 45, Rule 64 and Rule 65. A: Review of Judgments, Final Orders or Resolutions (Rule 64)

Petition for Certiorari(Rule 65)

Petition is based only on questions of law.

Petition is based on questions of law.

Petition is based on questions of jurisdiction, that is, whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion.

It is a mode of appeal.

It is a mode of appeal but the petition used is Rule 65.

It is a mode of review.

Appeal by Certiorari(Rule 45)

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts on the merits Filed within 15 days from notice of judgment, final order or resolution appealed from. Stays the judgment or order appealed from

Involves review of judgments, final orders or resolutions of COMELEC and COA. Note: CSC judgments, final orders or resolutions are governed by Rule 43

Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed. Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just.

May be directed against an interlocutory order of a court or where there is no appeal or any other plain, speedy or adequate remedy. Filed not later than 60 days from notice of judgment, order or resolution appealed from. Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding The judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action. Motion for reconsideration or for new trial is required. If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 02-03-SC)

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded.

The COMELEC and COA shall be public respondents who are impleaded in the action.

Motion for reconsideration is not required.

The filing of MNT or MR, if allowed under the procedural rules of the Commission, shall interrupt period fixed.

The court is in the exercise of its appellate jurisdiction and power of review.

The court is in the exercise of its appellate jurisdiction and power of review.

Court exercises original jurisdiction.

Filed with the SC.

Filed with the SC.

Filed with the RTC, CA, Sandiganbayan or COMELEC. (1991, 1998, 1999 Bar Question)

e. ISSUES TO BE RAISED ON APPEAL

Procedure: A Restatement for the Bar, pp. 445-446, 2009 ed.)

Q: What issues are to be considered in appeal? f. PERIOD OF APPEAL A: GR: Only errors assigned in the brief may be considered on appeal XPNs: 1. Grounds not assigned as errors but affecting the jurisdiction over the subject matter 2. Matters not assigned as errors on appeal but are evidently plain or clerical errors within the contemplation of law; 3. Matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice; 4. Matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; 5. Matters not assigned as errors on appeal but closely related to an error assigned; and 6. Matters not assigned as errors on appeal but upon which the determination of a question properly assigned is dependent. (Riano, Civil

Q: What is the period to appeal? A: Within 15 days from notice of the judgment or final order appealed from. Where record on appeal is required: Within 30 days from notice of the judgment or final order. In habeas corpus cases, 48 hours from notice of judgment or final order appealed from. Note: Where both parties are appellants, they may file a joint record on appeal (Sec. 8, Rule 41). The period shall be interrupted by a timely Motion for New Trial or Motion for Reconsideration.

Q: May a period of appeal be extended? A: Yes, under the sound discretion of the court. The mere filing of the motion for extension of time to perfect the appeal does not suspend the running of the reglementary period. Q: What is the effect if the extension of the period to appeal is granted/denied?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 A: If granted, and the notice thereof is served AFTER the expiration of the period to appeal, the extension must be computed from the date of notice. Note: If no action is taken on the motion for extension, or if it is denied after the lapse of the period to appeal, THE RIGHT TO APPEAL IS LOST.

Q: What is the effect of judgment on those who failed to appeal? A: 1. As to affirmative relief – an appellee who has himself not appealed may not obtain from the appellate court any affirmative relief other than what was granted in the decision of the lower court

g. PERFECTION OF APPEAL

2. As to reversal of judgment GR: Binding only on the parties in the appealed case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal

Q: When is an appeal perfected? What is its effect? A: 1. Appeal by notice of appeal – perfected as to the party upon filing of the notice of appeal in due time and upon payment of the appellate court docket fee. Effect: the court loses jurisdiction over the case upon the perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties 2.

Appeal by record on appeal – perfected as to the party with respect to the subject matter thereof upon the approval of the record on appeal filed in due time and upon payment of the appellate court docket fee.

XPN: Where the rights of the parties appealing are so interwoven and dependent on each other as to be inseparable, in which case a reversal as to one operates as a reversal to all. Note: Even if the appeal was filed out of time, the court still has jurisdiction to admit and give due course to it, PROVIDED there are justifiable reasons (e.g. in the exercise of the equity jurisdiction of the courts, where a stringent application of the rule would not serve the demands of substantial justice). This is tantamount to a valid order granting the extension if any is prayed for.

Q: Is the perfection of an appeal jurisdictional? A: GR: Yes. Perfection of appeal within the reglementary period is jurisdictional.

Effect: The court loses jurisdiction only over the subject matter upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties 3.

Appeal by petition for review – upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. Effect: RTC loses jurisdiction over the case upon the perfection of the appeal and the expiration of the time to appeal of the other parties.

Note: In either case, prior to the transmittal of the original record or record on appeal to the appellate court, the trial court may, motuproprio or on motion, dismiss the appeal for having been taken out of time or for non-payment of the docket and other lawful fees on time. The court may also exercise its residual powers.

XPN: When there has been extrinsic fraud, accident, mistake, or excusable negligence (FAME), resort to Petition for relief from judgment under rule 38. (Habaluyas v. Japson, 142 SCRA 208 (1986)). Q: What is the effect of a perfected appeal? A: GR: Judgment is not vacated by appeal, but is merely stayed and may be affirmed, modified or reversed or findings of facts or conclusions of law may be adopted by reference. XPN: Not applicable to civil cases under the Rules on Summary Procedure which provides that the decision of the RTC in civil cases governed by said Rule including forcible entry and unlawful detainer cases, shall be immediately executory without prejudice to a further appeal that maybe taken therefrom. Q: Would non- payment of docket fees result to the dismissal of the case?

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE A: GR: Payment of docket fee is jurisdictional. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executory (Regalado v. Go, GR No. 167988, February 6, 2007).

Q: Where to appeal from a judgment or final order of a Municipal Court?

However: the rule must be qualified: 1. The failure to pay appellate court docket fee within the reglementary period allows only discretionary dismissal, not automatic dismissal, of the appeal; 2. Such power should be used in the exercise of the court’s sound discretion (Republic v. Spouses Luriz, GR No. 158992, January 26, 2007).

Q: When should the appeal be taken?

A: An appeal from a judgment or final order of Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains (Section 1, Rule 40).

A: 1. An appeal may be taken within 15 days after notice to the appellant of the judgment or final order appeals from (Section 2, Rule 40); 2. Where a record of appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order (Section 2, Rule 40).

h. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC Q: Discuss the procedure of appeal from decisions of the MTC to the RTC. A: Appeal decision of MTC by filing notice of appeal within 15 days or 30 days where a record on appeal is required from receipt of judgment.

Q: How should the RTC decide an appeal from an order of a lower court dismissing a case without trial or those rendered without jurisdiction? A: 1.

Copies of the notice, and record on appeal when required, shall be served on the adverse party.

The MTC clerk transmits record to the RTC within 15 days from perfection of appeal.

Parties are given notice that the records have been received by the RTC.

1. 2.

Within 15 days from notice of appeal – appellant submits memorandum to the RTC. Within 15 days from receipt of appellant’s memorandum – appellee files his memorandum.

Note: Failure of the appellant to file a memorandum shall be a ground for the dismissal of the appeal.

2.

If the lower court dismissed the case without trial on the merits, RTC may: a) Affirm- in such case, it is a declaration of the merits of the dismissal; b) Affirm and the ground of dismissal is lack of jurisdiction over the subject matter – the action of the RTC is a mere affirmation of the dismissal. The RTC shall try the case on the merits as if the case was originally filed with it; c) Reverse – it shall remand the case for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the RTC shall not dismiss the case if it has original jurisdiction, but shall decide the case, and shall admit amended pleadings and additional evidence (Sec. 8, Rule 40).

Q: What if the case is dismissed for lack of jurisdiction? A: The order of dismissal is one without prejudice and the plaintiff may simply refile the complaint in the court with the proper jurisdiction because: GR: The order dismissing an action without prejudice is not appealable (Section 1g, Rule 41) XPN: Section 8, Rule 40 allows an appeal from an order of the MTC dismissing a case for lack of jurisdiction.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 i. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC

Within 30 days after perfection of the appeals, the RTC clerk shall verify the records and transmit the same to the appellate court and shall furnish the parties with copies of his letter of transmittal of the records to the appellate court

Q: What are the three modes of appeal from the decisions of the RTC? A: 1.

2.

3.

Ordinary appeal or appeal by writ of error – where judgment was rendered in a civil or criminal action by the RTC in the exercise of original jurisdiction (governed by Rule 41, taken to the CA on questions of fact or mixed questions of fact and law); Petition for review – where judgment was rendered by the RTC in the exercise of appellate jurisdiction (governed by Rule 42, brought to the CA on questions of fact, of law, or mixed questions of fact and law); or Petition for review on certiorari – to the SC (governed by Rule 45, elevated to the SC only on questions of law).

Note: Rule 41 refers to appeals from RTC exercising original jurisdiction. An appeal on pure questions of law cannot be taken to the CA and such improper appeal will be dismissed pursuant to Sec. 2, Rule 50 (Regalado, Remedial Law Compendium, Vol. 1, p. 526, 2007 ed.).

ORDINARY APPEAL OR APPEAL BY WRIT OF ERROR FROM THE RTC TO THE CA Q: What may be the subject of an appeal under Rule 41? A: An appeal may be taken from a judgment or final order that completely disposes of the case or of a particular matter therein when declared by the Rules to be appealable (Section 1, Rule 41). Q: When does Rule 41 on Ordinary Appeal apply? A: Rule 41 applies to appeals from the judgment or final orders of the RTC in the exercise of its original jurisdiction (Section 2a, Rule 41). Q: Discuss the procedure of appeal from decisions RTC to the CAunder Rule 41? A: Appeal the decision of the RTC by filing notice of appeal within 15 days or 30 days where a record on appeal is required from receipt of judgment

. Upon receipt of the original records and documents and upon payment of docket fees, the clerk of court of the CA shall docket the case and notify the parties

Within 45 days from the receipt of the notice of the clerk of court, the appellant shall file a brief with proof of service to the appellant

Within 45 days from the receipt of the appellant’s brief, the appellee shall file his own brief with proof of service to the appellant

Within 20 days from the receipt, the appellant may file a reply brief Note: In petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, briefs are not filed. Instead the parties shall file their memoranda within a non- extendible period of 30 days from the receipt of notice that all the evidences are already attached to the record (Sec 10, Rule 44).

Q: What is the title of the case when appealed to the CA under Rule 41? A: In all cases appealed to the CA under Rule 41, the title of the case shall remain as it was in the court of origin but the party appealing the case shall be referred to as the appellant and the adverse party appellee (Sec 1. Rule 44). Q: Distinguish a brief from a memorandum. A: Brief Ordinary appeals

Memorandum Certiorari, prohibition, mandamus, quo warranto and habeas corpus cases

Filed within 45 days

Filed within 30 days

Contents specified by rules

Shorter, briefer, only one issue involved – No subject index or assignment of errors, just facts and law applicable

Copies of the notice, and record on appeal when required, shall be served on the adverse party.

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What are the contents of appellant’s brief? A: The appellant’s brief shall contain, in the order herein indicated, the following: 1.

2.

3.

4.

5.

6.

7.

8.

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; An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively; 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 understanding of the nature of the controversy, with page references to the record; 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; A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment; 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; Under the heading "Relief," a specification of the order or judgment which the appellant seeks; and 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 (Sec. 13, Rule 44).

Q: What are the contents of the appellee’s brief? A: The appellee’s brief shall contain, in the order herein indicated, the following: 1.

A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases

2.

3.

alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of facts in the appellant’s brief, or under the heading "CounterStatement of Facts," he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant’s statement of facts; and Under the heading "Argument," the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on 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 (Sec. 14).

Q: What is the purpose of an appellant’s / appellee’s brief? A: To present to the court in a concise form the points and question in controversy, and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion/ decision (De Liano v. CA (2006)). Q: What is meant by Residual Jurisdiction of the court? A: The term refers to the authority of the trial court to issue orders for the protection and preservation of the rights of the parties. The concept of residual jurisdiction 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. There is no residual jurisdiction to speak of where no appeal or petition has even been filed (Fernandez v. CA, 458 SCRA 454). Q: What are the Residual Jurisdiction/Powers exercised by the trial court? A: 1.

2.

Issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal. Approve compromise agreements by parties after judgment has been rendered, (there is no rule that forbids

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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3. 4. 5.

litigants to settle amicably even if there is a judgment already) Permit appeals of indigent litigants. Order execution pending appeal in accordance with sec. 2, rule 39. Allow withdrawal of appeal.

4.

Note: Provided these are done prior to the transmittal of the original record or the record on appeal even if the appeals have already been perfected or despite the approval of the record on appeal (Section 9, Rule 41).

5.

RULE 42: PETITION FOR REVIEW FROM THE RTC TO THE CA Q: When does Rule 42 apply? A: Rule 42 applies to an appeal from the judgment or final order of the RTC to the CA in cases decided by the former in the exercise of its appellate jurisdiction. Q: The RTC affirmed the appealed decision of the MTC. You are the counsel of the defeated party and he tells you to appeal the RTC's decision. 1. What mode of appeal will you adopt? 2. Within what time and in what court should you file your appeal?

Must be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. There must be a certification against forum shopping (Sec. 2, Rule 42).

Q: What is the effect of failure to comply with the requirements? A:The failure of the petitioner to comply with

any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof (Sec. 3, Rule 45). Q: Is a petition for review a matter of right?

The mode of appeal is by petition for review under Rule 42 of the Rules of Court. The period of appeal is within 15 days from notice of the decision subject of the appeal or of the denial of a motion for new trial or reconsideration filed in due time to the CA. (1998 Bar Question)

A: It is not a matter of right but discretionary on the CA. It may only be given due course if it shows on its face that the lower court has committed an error of fact and/or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed or dismiss the petition if it finds that it is patently without merit, or prosecuted manifestly for delay, or the questions raised therein are too unsubstantial to require consideration. (Sec. 42)

Q: What are the contents of the petition for review?

Q: What are the contents of comment to the petition?

A:

A:

A: 1.

2.

1.

2. 3.

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State the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; Indicate the specific material dates showing that it was filed on time; Set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal;

1.

2.

3.

State whether or not he accepts the statement of matters involved in the petition; Point out the insufficiencies or inaccuracies in petitioner’s statement of facts and issues; and State the reasons why the petition should be denied or dismissed. (Sec. 5, Rule 42)

Q: Is the doctrine of residual jurisdiction applicable to Appeals under Rule 42? A: Yes, provided that such residual jurisdiction/ power is exercised before the CA gives due course to the petition (Section 8, Rule 42).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What is the effect of an appeal to the judgment or final order?

2.

A: The appeal, as a rule, shall stay the judgment or final order; unless the CA, the law or the rules shall provide otherwise.

3.

Note: Civil cases decided under the Rules on Summary Procedure shall not be stayed (Section 8b, Rule 42).

Q: Give some instances where the CA may act as a trial court. A: 1.

2.

3. 4. 5.

6.

7.

8.

In annulment of judgment under Secs. 5 and 6, Rule 47. Should the CA find prima facie merit in the petition, the same shall be given due course and summons shall be served on the respondent, after which trial will follow, where the procedure in ordinary civil cases shall be observed. When a motion for new trial is granted by the CA, the procedure in the new trial shall be the same as that granted by a RTC (Sec. 4, Rule 53). A petition for habeas corpus shall be set for hearing (Sec. 12, Rule 102). In petition for writs of amparo and habeas data, a hearing can be conducted. Under Sec. 12, Rule 124 of the Rules of Criminal Procedure, the CA has the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues which fall within its original and appellate jurisdiction. The CA can grant a new trial based on the ground of newly-discovered evidence (Sec. 14, Rule 124). The CA under Sec. 6, Rule 46, whenever necessary to resolve factual issues, may conduct hearing thereon or delegate the reception of the evidence of such issues to any of its members or to an appropriate agency or office. Human Security Act. (2008 Bar Question)

Q: What are the grounds for the Court of Appeals to dismiss an appeal? A: Under Sec.1 Rule 50, the CA, upon its own motion or upon the motion of the appellee an appeal may be dismissed on the following grounds: 1.

Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by the Rules;

4.

5.

6.

7.

8.

9.

Failure to file the notice of appeal or the record on appeal within the period prescribed by the Rules; Failure of the appellant to pay the docket and other lawful fees as provided in Section 5 Rule 40 and Sec. 4 of Rule 41; Unauthorized alterations, omissions or additions in the approved record on appeal as provided in Sec.4 of Rule 44 Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by the Rules; Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in Sec.13, paragraphs (a), (c), (d) and (f) of Rule 44; Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and The fact that the order or judgment appealed from is not appealable (En Banc Resolution, February 17, 1998)

Note: The grounds are discretionary upon the appellate court. The very wording of the rule uses the word “may” instead of “shall”. This indicates that it is only directory and not mandatory. Sound discretion must be exercised in consonance with the tenets of justice and fair play, keeping in mind the circumstances obtaining in each case (Mercury Drug Corporation vs. De Leon, G.R. No. 165622, October 17, 2008.)

RULE 45: APPEAL BY CERTIORARI TO THE SC Q: Is the appeal under Rule 45 a matter of right? A: An appeal or review under Rule 45 is not a matter of right, but of sound judicial discretion with the exception of cases where the penalty of death, or reclusion perpetua where the an appeal is a matter of right leaving the reviewing court without any discretion (People v. Flores, GR No. 170565, January 31, 2006). Q: When does Appeal by Certiorari under Rule 45 apply? A: Appeal by certiorari to the Supreme Court or petition for review on certiorari applies in the following cases:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 1.

2.

3.

4.

5.

6.

Appeal from a judgment or final order of the RTC in cases where only questions of law are raised or are involved and the case is one decided by the said court in the exercise of its original jurisdiction (Section 2c, Rule 41); Appeal from the judgment, final order or resolutions of the Court of Appeals where the petition shall raise only questions of law (Section 1, Rule 45); Appeal from the judgment, final order or resolutions of the Sandiganbayan where the petition shall raise only questions of law (Section 1, Rule 45); Appeals from the decision or ruling of the Court of Tax Appeals en banc (Section 11, RA 9282; Section 1, Rule 45 as amended by AM No, 07-7-12-SC); Appeals from a judgment or final order in a petition for writ of amparo to the Supreme Court which may raise questions of fact, questions of law or of both fact and law (AM No. 08-1-16-SC, Rule on the Writ of Amparo (Section19) October 24, 2007); Appeal from judgment or final order in a petition for the writ of Habeas Data. The appeal may raise questions of fact or law or both (AM No. 08-1-16-SC, Rule on the Writ of Habeas Data (Section 19) February 2, 2008).

Q: When is there a question of law? How does it differ from a question of fact? A: There is a question of law when the doubt or difference arises as to what the law is on a certain set of facts. A question of fact on the other hand is when the doubt or difference arises as to the truth or falsehood of the facts alleged.

but only from judgments and final orders of the court enumerated in Sec. 1 thereof. Appeals from judgments and final orders of quasi-judicial agencies are now required to be brought to the CA on a verified petition for review, under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasijudicial agencies. (Fabian v. Desierto, G.R. No. 129742, Sept. 16, 1998) Q: Is the mode of appeal prescribed under Rule 45 applicable to criminal cases? A: Yes. Except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment (Section 9, Rule 45). Q: Can a case decided by the RTC in the exercise of its appellate jurisdiction be appealed by way of a petition for review on certiorari under Rule 45? A: No, where a case is decided by the RTC in the exercise of its appellate jurisdiction, regardless of whether the appellant raises questions of fact, of law or mixed questions of fact and law, the appeal shall be brought to the CA by filing a petition for review under Rule 42 (Quezon City v. ABS-CBN Broadcasting Corporation, GR No. 166408 October 6, 2008). Q: Discuss the procedure for filing an appeal by certiorari. A: RTC, Sandiganbayan or RTC renders decision.

Aggrieved party files a petition for review on certiorari within 15 days from notice of final judgment or order of lower court or notice of denial of motion for reconsideration or new trial.

Q: May a petition for review on certiorari include prayer for the grant of provisional remedies? A: The petition for review on certiorari may include an application for a writ of preliminary injunction or other provisional remedies. The petitioner may also seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency (Sec. 1, Rule 45 as amended by A.M. No. 07-7-12-SC). Q: Does Rule 45 include appeals from quasijudicial bodies? A: No. Under the present Rule 45, appeals may be brought through a petition for review on certiorari

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Petitioner serves copies on adverse parties and the lower court and pays the corresponding docket fees.

SC may either dismiss the petition, or require the appellee to comment. If given due course, parties may submit memoranda.

SC may affirm, reverse, or modify judgment of the lower court.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE With the SC (Section 5 (1) Article VIII, 1987 Constitution).

Within 20 days from the receipt, the appellant may file a reply brief

Note: the petition shall raise only questions of law, which must be distinctly set forth. Appeals to the SC are made only by verified petitions for review on certiorari,

Q: When may the SC, on its own initiative, deny the petition for review? A: 1. 2. 3.

XPN: appeals from judgements of the RTC in criminal cases where the penalty imposed is life imprisonment or reclusion perpetua (elevated by ordinary appeal), or death penalty (subject to automatic review).

The appeal is without merit; Prosecuted manifestly for delay; or That the questions raised therein are too unsubstantial to require consideration (sec.5, Rule 45)

Q: Distinguish Certiorari under Rule 45 and Certiorari under Rule 65.

j. APPEAL FROM JUDGMENT OR FINAL ORDERS OF THE CA

A:

Q: May a reversal of judgment benefit a party who did not join or was not made a party to the appeal?

CERTIORARI (RULE 45) Mode of appeal which seeks to review final judgments and orders (Section 2, Rule 41)

Raises questions of law It shall be filed within 15 days from notice of judgment or final order appealed from

Does not require prior motion for reconsideration Stays the judgment sought to be appealed

The parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge (Section 4a, Rule 45). Filed with the SC (Section 1, Rule 45).

CERTIORARI (RULE 65) Special civil action; an original action (Rule 65). It may be directed against an interlocutory order or matters where no appeal may be taken from (Section 1, Rule 41) Raises questions of jurisdiction It shall be filed not later than 60 days from notice of judgment, order or resolution sought to be assailed and in case a MR or motion for new trial is timely filed, whether such motion is required or not, the 60 day period shall be counted from the notice of denial of said motion Requires as a general rule, a prior MR Does not stay the judgment or order subject of the petition unless enjoined or restrained. The tribunal, board, officer exercising judicial or quasijudicial functions is impleaded as respondent (Section 5 Rule 65).

Filed with the RTC (Section 21, BP 129); With the CA (Section 9, BP 129);

A: GR: The reversal of a judgment on appeal is generally binding only on the parties in the appealed case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal. XPN: Where the rights of such parties are so interwoven and dependent on each other as to be inseparable due to community of interests. Q: When may the SC review the findings of fact of the CA? A: GR: CA’s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC. The SC shall not entertain questions of fact because its jurisdiction is limited to reviewing errors of law (Natividad v. MTRCB, GR No. 161422, December 13, 2007). XPNs: 1. The conclusion of the CA is grounded entirely on speculations, surmises and conjectures; 2. The inference made is manifestly mistaken, absurd or impossible; 3. There is grave abuse of discretion; 4. The judgment is based on misapprehension of facts; 5. The findings of facts are conflicting; 6. The CA in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 7.

The findings are contrary to those of the trial court; 8. The findings of facts are conclusions without citation of specific evidence on which they are based; 9. The facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents; 10. The findings of fact of the CA are premised on the supposed absence of evidence and contradicted by the evidence on record; or 11. Those filed under Writs of amparo, habeas data, or kalikasan. k. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA Q: Where should the appeal from the decision of the CTA en banc be taken? A: A party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45 (Sec. 12, R.A. 9282; A.M. No. 07-7-12-SC). Q: Melissa filed with the BIR a complaint for refund of taxes paid, but it was not acted upon. So, she filed a similar complaint with the CTA raffled to one of its divisions. Melissa's complaint was dismissed. Thus, she filed with the CA a petition for certiorari under Rule 65. Does the CA have jurisdiction over Melissa's petition? A: No. A decision of a division of the CTA is appealable within 15 days to the CTA en banc. On the other hand, a party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45 of the Rules of Court. R.A. 9282 expanded the jurisdiction of the CTA and elevated the same to the level of a collegiate court equivalent to the rank of the CA. Hence, the CA no longer has jurisdiction to review the decisions of the CTA en banc. (2006 Bar Question) l. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COA m. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COMELEC n. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE CSC Q: What is the remedy of a party aggrieved by the decision of the COMELEC, COA and CSC?

A: A judgment, resolution or final order of the COMELEC and the COA may be brought by the aggrieved party to the SC on certiorari under Rule 65 by filing the petition within 30 days from notice (Sec. 2, Rule 64). On the other hand, judgments, final orders or resolutions of the CSC may be taken to the CA under Rule 43 of the Rules of Court (Sec. 1, 3 Rule 43). o. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE OMBUDSMAN Q: Does the CA have jurisdiction to review the decisions in criminal and administrative cases of the Ombudsman? A: It depends 1.

In administrative disciplinary cases, the rulings of the Office of the Ombudsman are appealable to the CA under Rule 43.

Note: The provision of Section 27 of RA 6770 (The Ombudsman Act of 1987) insofar as it allowed a direct appeal to the Supreme Court was declared unconstitutional as it increased the appellate jurisdiction of the SC without the advice and concurrence of the Court (Fabian v. Deseirto, 356 SCRA 787).

2.

In criminal cases, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65. Where the findings of the ombudsman on the existence of probable cause in criminal cases is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file a petition for certiorari with the SC under Rule 65 (Enemecio vs. Office of the Ombudsman, 419 SCRA 82)

Q: What is the remedy of a party aggrieved by the decision of the Sandiganbayan? A: Decisions and final orders of the Sandiganbayan shall be appealable to the SC by way of certiorari under Rule 45 raising pure questions of law (Section 1, Rule 45). p. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE NLRC Q: What is the remedy of a party aggrieved by the decision of the NLRC? A: The remedy is to promptly move for the reconsideration of the decision and if denied, to

94

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE timely file a special civil action of certiorari under Rule 65 within 60 days from notice of the decision. In observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the CA (St. Martin Funeral Homes vs. NLRC, G.R. No. 130866, September 16, 1998). If filed with SC it shall be dismissed instead of referring the action to the CA (A.M. No. 99-2-01-SC). Note: Those judgments and final orders or resolutions of the Employees Compensation Commission should be brought to the CA through a petition for review under Rule 43.

q. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF QUASI- JUDICIAL AGENCIES Q: What is a quasi-judicial agency? A: An organ of the government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule-making. Q: What are the agencies included under Rule 43? A: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Civil Service Commission; Central Board of Assessment Appeals; Securities and Exchange Commission; Office of the President; Land Registration Authority; Social Security Commission; Civil Aeronautics Board; Bureau of Patents, Trademarks and Technology Transfer; National Electrification Administration; Energy Regulatory Board; National Telecommunications Commission; Department of Agrarian Reform under R.A. 6657; GSIS; Employee Compensation Commission; Agricultural Inventions Board; Insurance Commission; Philippine Atomic Energy Commission; Board of Investments; Construction Industry Arbitration Commission; and Voluntary Arbitrators authorized by law (Sec. 1 Rule 43).

Note: The office of the Prosecutor is NOT a quasijudicial body and its action approving the filing of information is not appealable to the CA under Rule 43.

Q: Where should the judgments and final orders of quasi- judicial bodies be appealed?

A: Appeals from judgment and final orders of quasijudicial bodies/ agencies enumerated in Rule 43 are now required to be brought to the CA under the requirements and conditions set forth in Rule 43 (Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128). Q: What issues may be raised on appeal? A: The appeal under Rule 43 may raise issues involving questions of fact, of law or mixed questions of fact and law (Section 3, Rule 43). Q: What are the contents of comment to the petition and when must it be filed? A: The comment shall be filed within 10 days from notice in 7 legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers. The comment shall: 1. Point out the insufficiencies or inaccuracies in petitioner’s statement of facts and issues; and 2. State the reasons why the petition should be denied or dismissed. (Sec. 9 Rule 43) Note: The appellate court may also require the filing of a reply, but further submissions are governed by the resolution in AM No. 99-2-04.

Q; What is the effect of the appeal on the award, judgment, final order or resolution? A: The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the CA shall direct otherwise upon such terms as it may deem such (Section 12, Rule 43). Q: What is the remedy of a party aggrieved by the decision of a Quasi-judicial Agency? A: Within 15 days from: 1. Notice of the award, judgment, final order or resolution; or 2. Date of publication, if publication is required by law for its effectivity; or 3. Denial of petitioner’s MNT or MR, the aggrieved party must file a verified petition for review under rule 43 in 7 legible copies with the CA. Furnish a copy to the lower court and adverse party. The appeal may involve questions of fact, of law, or mixed questions of fact and law. Q: Is extension of time to file petition for review allowed?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 A: Yes. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the CA may grant additional period of 15 days only within which to file a petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. (Sec. 4, Rule 43) Q: Distinguish appeal from RTC as appellate court under Rule 42 and appeal from quasi-judicial agencies under Rule 43. A: RTC as Appellate Court (Rule 42)

Appeal from Quasi-judicial agencies (Rule 43)

Decision is stayed by an appeal.

GR: Decision is immediately executory. It is not stayed by an appeal XPN: CA shall direct otherwise upon such terms as it may deem just

Factual findings not conclusive to CA.

Factual findings are conclusive upon CA if supported by substantial evidence.

Q: Is Rule 43 applicable where the resolution was issued by a quasi-judicial agency with grave abuse of discretion? A: No, Rule 43 is not applicable where the petition contains an allegation that the challenged resolution is patently illegal and was issued with grave abuse of discretion and beyond respondent’s jurisdiction. The appropriate remedy is Rule 65 on certiorari. Q: When is the withdrawal of an appeal a matter of right? A: As a matter of right, appellant may withdraw his appeal at any time before the filing of the appellee’s brief. Thereafter, it is in the discretion of the court. AFTER FINALITY OF JUDGMENT 3. RELIEF FROM JUDGMENTS, ORDERS AND OTHER PROCEEDINGS Q: What is the nature of petition for relief from judgment? What is its purpose? A: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake or excusable neglect

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(Quelnan v. VHF Philippines, G.R. No. 138500, Sept. 16, 2005). Q: Purcon was hired as a seaman, he was repatriated due to his ailment. After undergoing some medications, he went back to work but was not re-hired due to lack of vacany. Purcon then filed a case for reimbursment of medical expenses with the NLRC. The LA dismissed the complaint for lack of merit. A memorandum of appeal with the NLRC was filed but was dismissed. Petitioner filed petition for review on certiorari under Rule 65 with the CA which was also denied, the MR was likewise denied. This prompted the petitioner to file with the SC a petition for review on certiorari under Rule 45 which was denied. As a last recourse, petitioner filed a petition for relief from judgment. Whether or not the petitioner can avail of a petition for relief from judgment after the denial of the SC of his petition for review? A: No. A petition for relief from judgment is not an available remedy in the Court of Appeals and Supreme Court. It should be filed with the same court which rendered the decision. While Rule 38 uses the phrase "any court," it refers only to Municipal/Metropolitan and Regional Trial Courts. If a petition for relief from judgment is not among the remedies available in the CA, with more reason that this remedy cannot be availed of in the Supreme Court. This Court entertains only questions of law. A petition for relief raises questions of facts on fraud, accident, mistake, or excusable negligence, which are beyond the concerns of this Court (Purcon v. MRM Philippines Inc., GR No. 182718, September 26, 2008). Q: Distinguish motion for new trial/reconsideration from petition for relief from judgment. A: Motion for New Trial / Reconsideration Available before judgment becomes final and executory.

Petition for Relief from Judgment Available after judgment has become final and executory.

Applies to judgments or final orders only.

Applies to judgments, final orders and other proceedings: e.g. land registration; special proceedings; order of execution.

Grounds for motion for new trial: 1. Fraud, accident, mistake or excusable negligence; 2. Newly discovered

Grounds: Fraud, accident, mistake or excusable negligence.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Note: The bond is conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of issuance of such injunction or the other proceedings following the petition.

evidence Grounds for motion for reconsideration: the damages awarded are excessive; that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law (Sec. 1). Filed within the time to appeal. The order of denial is not appealable. The remedy is to appeal from judgment or final order. Legal remedy. Motion need not be verified.

a. GROUNDS FOR AVAILING OF THE REMEDY Q: What are the grounds for petition for relief? Filed within 60 days from knowledge of the judgment and within 6 months from entry of judgment(1990 Bar Question) The order of denial is not appealable; the remedy is appropriate special civil action under Rule 65 Equitable remedy.

A:

1.

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 (Sec. 1, Rule 38); or

2.

The petitioner has been prevented from taking an appeal by fraud, accident, mistake, or excusable negligence (Sec. 2, Rule 38).

Petition must be verified.

Note: A party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. The two remedies are exclusive of one another. The remedy is to appeal from the judgment (Section 9,Rule 38; Francisco v. Puno, 108 SCRA 427).

Q: Where should the petition be filed? A: 1.

Q: Who may file the petition for relief from judgment? A: A petition for relief from judgment together with a motion for new trial and a motion for reconsideration are remedies available only to parties in the proceedings where the assailed judgment is rendered. A person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment. (Alaban v. CA, 470 SCRA 697) Q: What are the duties of the court after an answer to the petition has been filed A: After the hearing and the court finds the allegations therein not true, it shall dismiss the petition. If the allegations are true, the court shall set aside the judgment, final order or proceeding complained of. (Sec. 6, Rule 38) Q: Is the remedy of preliminary injunction available pending the resolution of the petition for relief? A: Yes. The court may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties upon the filing of a bond (Sec. 5, Rule 38).

2.

If the petition is filed because of the first ground, the petition shall be filed in such court and in the same case (not in another or higher court). The petition shall pray that the judgment, order or proceeding be set aside (Sec. 1, Rule 38). If the petition is filed under the second ground, the petition shall likewise be filed in such court and in the same case (not in another or higher court) but the prayer this time is that the appeal be given due course (Sec. 2, Rule 38) b. TIME TO FILE PETITION

Q: When should the petition for relief be filed? A: 1.

2.

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 from entry of such judgment, order or other proceeding (Sec. 3).

Note: These two periods must concur and are also not extendible and never interrupted (Riano, Civil Procedure: A Restatement for the Bar, p. 479, 2009 ed.).

Q: May a defendant who has been declared in default right away avail of a petition for relief from the judgment subsequently rendered in the case?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 A: No. The remedy of petition for relief from judgment is available only when the judgment or order in question is already final and executory, i.e., no longer appealable. As an extraordinary remedy, it may be availed only in exceptional cases where no other remedy is available. (2007 Bar Question) c. CONTENTS OF THE PETITION Q: What is the form and contents of the petition for relief? A: 1. 2. 3.

The petition for relief must be verified; It must be supported by affidavit showing the FAME relied upon; and The affidavit of merit accompanying the petition must also show facts constituting the petitioner’s good or substantial cause of action or defense.

Note: An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not a fatal defect to warrant a denial of the petition, so long as the facts required to be set out also appear in the verified petition.

Q: When shall the court issue an order to answer? A:When the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof (Sec. 4, Rule 38).

remedies are no longer available through no fault of the petitioner (Sec. 1, Rule 47). Q: Who may avail this remedy? A: A person need not be a party to the judgment sought to be annulled. What is essential is that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby (Islamic Da’wah Council v. CA, G.R. No. 80892, Sept. 29, 1989). The extraordinary action to annul a final judgment is restricted to the grounds provided by law to prevent it from being used by a losing party to make a mockery of a duly promulgated decision that has long become final and executory. Q: Where should the petition be filed? A: Judgments of RTC Filed with the CA Basis – It has exclusive original jurisdiction over said action under Sec. 9 (2), BP 129 CA may dismiss the case outright; it has the discretion on whether or not to entertain the petition.

Judgments of MTC Filed with the RTC Basis – RTC as a court of general jurisdiction under Sec. 19 (6), BP 129 RTC has no such discretion. It is required to consider it as an ordinary civil action.

a. GROUNDS FOR ANNULMENT 4. ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

Q: What are the grounds for the annulment of judgment of the RTC?

Q: What is annulment of judgment? A: A: It is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose of such action is to have the final and executor judgment set aside so that there will be renewal of litigation.

1.

2.

Note: A co-equal court cannot annul the final judgment of a similar court. CA has exclusive jurisdiction over actions for annulment of judgments of RTC. An action to annul a judgment or final order of MTC shall be filed in the RTC having jurisdiction in the former and it shall be treated as an ordinary civil action. (Secs. 1 &10, Rule 47).

Q: When may it be availed of? A: The remedy of annulment of judgment may be availed of when the ordinary remedies of new trial, appeal, petition for relief or other appropriate

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3.

Extrinsic fraud or collateral fraud – not a valid ground if it was availed of, or could have been availed of in a motion for new trial or petition for relief. Lack of jurisdiction over the subject matter and over the person – May be barred by estoppels by laches, which is that failure to do something which should be done or to claim or enforce a right at a proper time or a neglect to do something which one should do or to seek or enforce a right at a proper time. (1998 Bar Question) Denial of due process (Alaban v. CA, G.R. No. 156021, Sept. 23, 2005).

Q: What is extrinsic fraud?

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE A: Fraud is regarded as extrinsic where it prevents a party from having a trial or from preventing a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured (Alaban v. CA, GR no. 156021, September 23, 2005).

amount of the dishonored check. The trial court ruled in favor of Jenny. Allied remitted to the sheriff a manager’s check amounting to P800,000 drawn on Rhea’s account which was duly received by Jenny. Rhea filed a petition in the CA seeking to annul and set aside the trial court’s decision on the ground of extrinsic fraud. The appellate court granted Rhea’s petition. Is the CA correct?

Q: What is meant by lack of jurisdiction? A: Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim. b. PERIOD TO FILE ACTION Q: What is the period to file an action? A: 1.

2.

If based on extrinsic fraud, the action must be filed within four (4) years from its discovery. If based on lack of jurisdiction, the action must be brought before the action is barred by laches or estoppel (Sec. 2, Rule 47).

c. EFFECTS OF JUDGMENTS OF ANNULMENT Q: What is the effect of a judgment of annulment? A: If based on lack of jurisdiction- It shall have the effect of setting aside the questioned judgment or final order and rendering the same null and void but the judgment of annulment is without prejudice to the refilling of the original action in the proper court (Sec.7, Rule 47) Note: The prescriptive period for the refilling of the action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. But shall not however, be suspended where the extrinsic fraud is attributable to the plaintiff in the original action (Sec. 8, Rule 47).

If based on extrinsic fraud- The court, upon motion, may order the trial court to try the case as if a motion for new trial was granted (Sec. 9, Rule 47). Q: Rhea took out a loan of P1 Million from Jenny. To secure the loan, Rhea issued Jenny an Allied check in the amount of P750,000 which, however, was dishonored due to a material alteration. Rhea then remitted P600,000 to Jenny as partial payment of the loan with the balance payable at a later date. Prior to the due date for the payment of the balance, Jenny filed an action for a sum of money and damages against Allied for the full

A: Yes. Annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled is promulgated. It can be filed by one who was not a party to the case in which the assailed judgment was rendered. Here, Rhea may avail of the remedy of annulment of judgment under Rule 47. The ordinary remedies of new trial, appeal and petition for relief were not available to her for the simple reason that she was not made a party to the suit against Allied (Villanueva v. Nite, G.R. No. 148211, July 25, 2006). 5. COLLATERAL ATTACK OF JUDGMENTS Q: What is a collateral attack on judgment? A: It is made in another action to obtain a different relief; an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face is null and void, as where it is patent that the court which rendered such judgment has no jurisdiction (Co vs. Court of Appeals, 196 SCRA 705). Q. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS Q: What is execution? A: It is a remedy provided by law for the enforcement or satisfaction of a final judgment. 1. DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION Q: What is meant by final judgment? A: 1.

The term “final” when used to describe a judgment may be used in two senses. In the first, it refers to a judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto. In this sense, a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case (Rudecon Management Corp. vs. Singson, 454 SCRA 612).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 2.

In another sense, the word “final” may refer to a judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal or if there has been appeal, it has already been resolved by a highest possible tribunal (PCGG vs. Sandiganbayan, 455 SCRA 526). In this sense, the judgment is commonly referred to as one that is final and executory.

1.

Note: Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the issuance of a writ of execution becomes the ministerial duty of the court. Once a decision becomes final and executory, it is the ministerial duty of the presiding judge to issue a writ of execution except in certain cases, as when subsequent events would render execution of judgment unjust (Mangahas vs. Paredes, GR 157866, Feb. 14, 2007).

Q: Distinguish final judgments for purposes of appeal from final judgments for purposes of execution. 2. A: Final Judgments for purposes of appeal

Final Judgments for purposes of execution

Dispose of, adjudicate, or determine the right of the parties.

Becomes final and executory by operation of law. After lapse of period to appeal and no appeal was perfected, no further action can be had. Execution of judgment a matter of right.

Still subject to appeal

Execution of judgment not a matter of right.

2. WHEN EXECUTION SHALL ISSUE a. AS A MATTER OF RIGHT Q: When shall execution be issued? A: Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding (Sec. 1, Rule 39)

3. 4.

A: GR: Execution of judgment is a matter of right on the part of the winning party. The court cannot refuse execution. XPN: 1. When the judgment has already been executed by the voluntary compliance thereof by the parties (Cunanan v. CA, G.R. No. L-25511, Sept. 28, 1968); Note: This is a situation where there is a satisfaction of the judgment without need for its execution by the court.

2.

3.

4.

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When the judgment has been novated by the parties (Dormitorio v. Fernandez, G.R. No. L-25897, Aug. 21, 1976); Note: The parties, despite the existence of a judgment, are at liberty to novate a judgment by entering into a compromise. A compromise is a contract recognized by substantive law (Art. 2028, NCC).

Q: When is an execution a matter of right? A: Execution will issue as a matter of right when:

Judgment debtor has renounced or waived his right to appeal; The period for appeal has lapsed without an appeal having been filed; Having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin (Florendo v. Paramount Insurance Corp, now MAA General Insurance Inc., GR No. 167976, January 20, 2010).

Q: May the court which rendered the judgment refuse to issue writ of execution?

Q: How is an execution issued? A: Execution shall issue upon motion. Therefore, there is a need to file a motion for the issuance of a writ of execution. Even in judgments which are immediately executory, there must be a motion to that effect and a hearing called for that purpose. Also, under SC circular no. 24-94, a motion for the issuance of a writ of execution must contain a notice to the adverse party (Lou vs. Siapno, 335 SCRA 181 and Pallada vs. RTC of Kalibo, Aklan, Br.1, 304 SCRA 440)

The judgment has become final and executory(Section 1, Rule 39);

When a petition for relief is filed and a preliminary injunction is granted in accordance with Sec. 5, Rule 38; When the judgment sought to be executed is conditional (Co Unjieng v. HijosMabalacat Sugar Co., G.R. No. L-

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

5.

6.

7.

32644, Oct. 4, 1930) or is incomplete (Del Rosario v. Villegas, G.R. No. L-25726, Nov. 22, 1926); When facts and circumstances transpire which would render execution inequitable or unjust (Bacharach Corp. v. CA, G.R. No. 128349, Sept. 25, 1998); When execution is sought more than 5 years from its entry without the judgment having been revived; When execution is sought against property exempt from execution under Sec. 13, Rule 39; or When the refusal to execute the judgment.

1.

2. 3. 4.

Q: Where should you file an application for discretionary execution? A: 1.

b. AS A MATTER OF DISCRETION Q: When is execution discretionary? A: 1. 2.

3.

4.

5.

Execution pending appeal; and While trial court has jurisdiction over the case and is in possession of either the original record or record on appeal; When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court; and When trial court has lost jurisdiction and has transmitted records (motion for execution pending appeal with appellate court). Execution of several, separate or partial judgment(Florendo v. Paramount Insurance Corp, now MAA General Insurance Inc., GR No. 167976, January 20, 2010)..

Note: As such exception, the court’s discretion in allowing it must be strictly construed and firmly grounded on the existence of good reasons. “Good reasons,” has been held, to consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. Circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity (Florendov. ParamountInsurance Corp. (nowrenamed MAA General Insurance Inc.), G.R. No. 167976, Jan. 20, 2010).

Q: What are the requisites for discretionary execution? A:

There must be a motion filed by the prevailing party with notice to the adverse party; There must be a hearing of the motion for discretionary execution; There must be good reasons to justify the discretionary execution; and The good reasons must be stated in a special order (Sec. 2, Rule 39)

a. b.

2.

The motion for discretionary execution shall be filed with the trial court: While it has jurisdiction over the case and While it is in possession of either the original record or the record on appeal; or After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court (Bangkok Republic Company Limited vs. Lee, G.R. No. 159806, January 20, 2006).

Q: What is the remedy where the judgment subject to discretionary execution is reversed or annulled? A: The trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances (Sec. 5, Rule 39). Q: In a complaint filed by Granger for rescission and damages, the RTC ruled against JP Latex, defendant. On Aug. 5, 2006, Granger moved for the execution pending appeal of the decision. Upon receipt of the decision, JP Latex filed a motion for reconsideration (MR). The RTC granted the execution “pending appeal” without acting on the motion for reconsideration. Is the order of the trial court correct? A: No. Discretionary execution is allowed only when the period to appeal has commenced but before the trial court loses jurisdiction over the case. The period to appeal where a motion for reconsideration has been filed commences only upon the receipt of the order disposing of the MR. The pendency of a MR, therefore, prevents the running of the period to appeal. The MR filed by JP Latex had not been acted upon by the RTC before it ruled on the motion for execution “pending appeal.” The pendency of the MR has prevented the period to appeal from even commencing. The period within which a party may

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 move for an execution pending appeal of the RTC’s decision has not yet started. Thus, where there is pending MR, an order of execution pending appeal is improper and premature. (JP Latex Technology, Inc. v. Ballons Granger Balloons, Inc., et. al., G.R. No. 177121, Mar. 16, 2009)

A: It may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom execution 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 (Sec. 3 Rule 39).

Q: How may a discretionary execution be stayed? 3. HOW JUDGMENT IS EXECUTED Q: How can a judgment be executed? A:

Judgment is executed by motion within 5 years from date of its entry

Execution is a matter of right after expiration of period to appeal and no appeal is perfected.

Discretionary execution upon good reasons stated in a special order after due hearing.

If the winning party does not move for execution within 5 years but before 10 years from the date of entry of judgment, the same can only be revived by means of new action / petition.

Sheriff executes writ of execution

Losing party is made to indemnify thru: 1. Payment with interest; 2. Levy and sale of personal property; 3. Levy and sale of real property; 4. Delivery of personal and/or real property. Note: 5 and 10 year periods not applicable to judgment for support and special proceedings.

a. EXECUTION BY MOTION OR BY INDEPENDENT ACTION Q: What are the modes of execution of judgment? A: a.

b.

Execution by motion-if the enforcement of the judgment is sought within 5 years from the date of its entry; and Execution by independent action -if the five year period has elapsed and before it is barred by statute of limitations (Sec. 6, Rule 39)

Q: When is there a need to file an independent action for execution? A: There is a need for the prevailing party to file an independent action for the revival of the judgment before the action is barred by statute of limitations when a writ of execution is issued by motion of the

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prevailing party after 5 years from the date of entry of judgment, such motion is considered null and void (Tag Fibers, Inc. vs. NLRC, 344 SCRA 29; Terry vs. People, 314 SCRA 669) Q: Can execution be effected by motion after five years? A: GR:No, execution of a judgment can no longer be effected after 5 years. The remedy would be to file an independent action for the revival of the judgment. XPNs: The court in certain instances allowed execution of the judgment by mere motion despite the lapse of the 5 year period. In instances where the delay in the execution of the judgment were through causes attributable to the judgment debtor or when the delay is incurred for his benefit.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What is revival of judgment? A: This means that from the date of the finality of judgment, no motion was filed for the execution of said judgment, thus the need for its enforcement by action. Q: When should the action for revival of judgment be filed? A: The action to revive a judgment must be filed within 10 years from the date of judgment became final because an action to enforce a judgment prescribes in 10 years from the finality of the judgment.

Q: What are the defenses available in an action for enforcement? A: 1. Prescription; 2. Satisfaction of claim; and 3. Counterclaims. Q: Will execution issue upon death of a party? A: a.

b. Q: What is the nature of a revived judgment? A: A revived judgment is deemed a new judgment separate and distinct from the original judgment. Q: How do you enforce a revived judgment? A: A revived judgment may be enforced by motion within 5 years from the date of its entry and thereafter by action also before it is barred by the statute of limitations (Sec. 6, Rule 39). Q: May the period to execute the judgment be stayed? A: Yes: by agreement of the parties; by injunction; or by taking an appeal or writ of error. Q: What is the effect of an appeal to the execution of the judgment? A: GR: An appeal perfected in due time stays the execution of a judgment. XPNs: There are judgments which by express provision of law not stayed by appeal: 1.

Those judgments which by express provision of the rules are immediately executor and are not stayed by appeal (Sec. 4, Rule 39); Note: These are: judgment for injunction, receivership, accounting and support unless the court rule otherwise.

2.

Those judgments that have become the object of discretionary execution (Sec. 2, Rule 39).

Death of an obligee – execution will issue in any case, upon application of his executor, administrator, or successor-ininterest Death of an obligor - Death before levy: Action for recovery of real or personal property or any lien – execution will issue. Action for a sum of money – execution will NOT issue. The judgment obligee should file a claim against the estate of the judgment obligor under Rule 86 - Death after levy: Execution will issue against his executor, administrator, or successorin-interest because the property is already separated from the estate of the deceased and is deemed in custodia legis.

b. ISSUANCE AND CONTENT OF A WRIT OF EXECUTION Q: What is a writ of execution? A: It is a judicial writ issued to an officer authorizing him to execute the judgment of the court. Q: What is the lifetime of a writ of execution? A: The writ is enforceable within 5 years from the entry of judgment as provided for in Sec. 6 of Rule 39. Q: What are the contents of a writ of execution? A: 1. 2. 3. 4.

The name of the court which granted the motion; The case number; The dispositive portion of the judgment or order subject of the execution; and Shall require the sheriff or other proper officer to whom it is directed to enforce

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 the writ according to its terms (Sec.8, Rule 39) Note: The motion for execution and the writ of execution must state specifically the amount of interest, costs, damages, rents, or profits due as of the date of issuance of the writ, aside from the principal obligation.

a.

b.

Q: Is a writ of execution subject to a motion to quash? A: A writ of execution may be quashed on certain grounds: 1. When the writ of execution varies the judgment; 2. When there has been a change in the situation of the parties making the execution inequitable or unjust; 3. When execution is sought to be enforced against a property exempt from execution; 4. When it appears that the controversy has never been submitted to the judgment of the court; 5. When the terms of the judgment are not clear enough and there remains room for interpretation thereof; 6. When it appears that the writ of execution has been improvidently issued; 7. When it appears that the writ of execution is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied or the writ is issued without authority (Reburiano v. CA, 301 SCRA 342). c. EXECUTION OF JUDGMENTS FOR MONEY Q: What are the 3 ways to enforce a judgment for money?

c.

Demand from the obligor the immediate payment of the full amount stated in the judgment including the lawful fees in cash, certified check payable to the judgment obligee or any other form of payment acceptable to him. If the judgment obligor cannot pay all or part of the obligation in cash, certified check or other mode of payment, the officer shall levy upon the properties of the judgment obligor. The judgment obligor shall have the option to choose which property or part thereof may be levied upon. 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 personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees. The officer may levy on the debts due the judgment debtor including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or con troll of third parties. This is called garnishment. (Sec. 9, rule 39)

Q: What is levy? A: It is the act by which an officer sets apart or appropriates a part of the whole of the property of the judgment debtor for purposes of the execution sale. Q: What is garnishment? A: It is the act of appropriation by the court when the property of the debtor is in the hands of third persons.

A: 1. 2.

3.

Immediate payment on demand Satisfaction by levy The judgment obligor exercises discretion to choose which property to levy; if not exercised, the officer shall levy first on personal property, then on real property. The sheriff shall only sell property sufficient to satisfy the judgment and other lawful fees. Garnishment of debts and credits.

Q: What are the steps in executing a judgment for money? A:

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Note: The garnishee or the third person who is in the possession of the property of the judgment debtor is deemed a forced intervenor.

Q: Distinguish attachment from garnishment. A: Attachment refers to corporeal property in the possession of the judgment debtor. Garnishment refers to money, stocks, credits and other incorporeal property which belong to the judgment debtor but is in the possession or under the control of a third person. (1999 Bar Question) Q: The writ of execution was returned unsatisfied. The judgment obligee subsequently received

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE information that a bank holds a substantial deposit belonging to the judgment obligor. If the bank denies holding the deposit in the name of the judgment obligor but your client's informant is certain that the deposit belongs to the judgment obligor under an assumed name, what is your remedy to reach the deposit?

1.

Q: How is money judgment implemented if the obligee is absent at the time of payment?

In case of conveyance, if a party fails to comply with the time specified, the court may direct the act to be done at the cost of the disobedient party. In case of delivery or restitution of real properties, the officer shall demand the losing party to peaceably vacate the property within 3 working days, and restore possession to the judgment oblige; otherwise the officer shall oust such disobedient party. In case of removal of improvements on property subject of execution, the officer shall not destroy, demolish or remove improvements except upon special order of the court. In judgments for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled to satisfy any judgment for money as therein provided.

A: Sec. 9, Rule 39 lays down the procedure to be followed by the sheriff in implementing money judgments.

Q: How can judgment be executed for the following specific acts if the judgment debtor refuses/fails to comply therewith?

When the judgment obligee is not present at the time the judgment obligor makes the payment, the sheriff is authorized to receive it. However, the money received must be remitted to the clerk of court within the same day or, if not practicable, deposited in a fiduciary account with the nearest government depository bank. Sheriffs are not permitted to retain the money in their possession beyond the day when the payment was made or to deliver the money collected directly to the judgment oblige (Peña, Jr. v. Regalado II, A.M. No. P-10-2772 (formerly A.M. OCA I.P.I No. 07-2615-P), Feb. 16, 2010).

A:

2.

A: A motion may be filed for a court order requiring the proper bank officer to appear in court for examination under oath as to such bank deposit, and subsequently move for a court order authorizing the filing of an action against such bank for the recovery of the judgment obligor’s deposit/interest therein and to forbid a transfer or other disposition of such deposit/interest within 120 days from notice of the order (Secs. 37 and 43).(2008 Bar Question)

3.

4.

Judgments for Specific Act (Sec. 10) Conveyance, delivery of deeds, or other specific acts, vesting title. Sale of real and personal property

d. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS Q: What are considered specific acts? A: 1. 2. 3. 4. 5.

Conveyance, delivery of deeds, or other specific acts vesting title; Sale of real or personal property; Delivery or restitution of real property; Removal of improvements on property subject of execution; and Judgments for the delivery of personal property.

Q: What are the steps in executing a judgment for specific acts? A:

Delivery or restitution of real property

Removal of improvements on property subject of execution Delivery of personal property

Manner of Execution Court can appoint some other person at the expense of the disobedient party and the act done shall have the same effect as if the required party performed it. Sell such property and apply the proceeds in conformity with the judgment. If the party refuses to deliver, a writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a haberefaciaspossesionemand authorizes the sheriff to break open the premises where there is no occupant therein. If party refuses to vacate property, remedy is not contempt. The sheriff must oust the party. But if demolition is involved, there must be a special order. The officer may destroy, demolish or remove the improvements upon special order of the court, issued upon motion of the judgment obligee. The officer shall take possession and deliver to the party entitled thereto.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: May a judgment debtor be cited in contempt in case of refusal to comply with judgment of the court?

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 (Sec 11, Rule 39).

A: GR: The judgment debtor cannot be cited in contempt of court. Generally, contempt is not a remedy to enforce a judgment. XPN: 1. Refusal to perform a particular act or special judgments under Sec. 11 where he may be cited in contempt. 2. In case of the provisional remedy of support pendente lite under Rule 61, the judgment debtor may still be cited for contempt even if the decision is not a special judgment and requires the latter to pay money. Note: If a party refuses to: a. Vacate the property – the sheriff must oust the party. A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. b. Deliver – the sheriff will take possession and deliver it to the wining party c. Comply – the court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it.

e. EXECUTION OF SPECIAL JUDGMENTS Q: What is a special judgment? A: It is a judgment that can be complied with only by the obligor himself. It requires the performance of any other act other than payment of money, or the sale or delivery of real or personal property. Q: What is the effect of failure to comply with special judgments? A: Failure to comply with special judgment under Section 11 is punishable by contempt by imprisonment. Q: How is execution of special judgments executed? A: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

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f. EFFECT OF LEVY ON THIRD PERSON Q: What is the effect of levy on execution as to third persons? A: It creates a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing (Sec. 12). Q: Aiza obtained a judgment for money against Bert. The sheriff enforcing the corresponding writ went to Celywho, is the pledgee of a ring Bert had given as security for a loan and insisted on taking possession of the ring for the purpose of eventually selling it at the execution sale to satisfy the judgment debt of Bert to Aiza. Does Cely have the obligation to surrender the ring to the sheriff? Explain. A: No, because Cely has the right to retain the ring in his possession until the loan is paid (Art. 2098, NCC). If the sheriff should take possession of the ring, Cely may file a third-party claim. (1987 Bar Question) Q: What are the remedies available to a thirdparty claimant in levy of real property? A: 1. 2. 3. 4.

Summary hearing before the court which authorized the execution; Terceriaor third party claim filed with the sheriff; Action for damages on the bond posted by judgment creditors; or Independent reinvindicatory action. (Sec. 16, Rule 39)

The remedies are cumulative and may be resorted to by the third party claimant independently of or separately from the others. Note: The officer shall not be liable for damages for the taking or keeping of the property, to any thirdparty claimant if there is a bond filed by the winning party. If there is no bond, the sale cannot proceed. However, the judgment obligee can claim damages against a third-party claimant who filed a frivolous or plainly spurious claim, and such judgment obligee can institute proceedings therefor in the same or separate action (Sec. 16, Rule 39).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What are other properties ESPECIALLY exempt from execution? 4. PROPERTIES EXEMPT FROM EXECUTION A: Q: What are the properties exempt from execution? A: 1.

2.

3.

4. 5.

6. 7.

8.

9.

10. 11.

12.

13.

The judgment obligor’s family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; Ordinary tools and implements personally used by him in his trade, employment or livelihood; 3 horses, cows, or carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; His necessary clothing and articles for ordinary personal use, excluding jewelry; 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 P100,000; Provisions for individual or family use sufficient for 4 months; The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding P300,000 in value; 1 fishing boat and accessories not exceeding the total value of P100,000 owned by a fisherman and by the lawful use of which he earns his livelihood; So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the 4 months preceding the levy as are necessary for the support of his family; Lettered gravestones; Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government; and Properties specially exempted by law.

But no article or species of property mentioned above shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage hereon (Sec. 13).

1.

Property mortgaged to DBP (Sec 26, CA 458) 2. Property taken over by Alien Property Administration (Section 9[f], US Trading with the Enemy Act) 3. Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4. Backpay of pre-war civilian employees (RA 304) 5. Philippine Government backpay to guerillas (RA 897) 6. Produce, work animals, and farm implements of agricultural lessees, subject to limitations (Sec 21, RA 6389) 7. Benefits from private retirement systems of companies and establishments, with limitations (RA 4917) 8. Labor wages, except for debts incurred for food, shelter, clothing, and medical attendance (Art 1708, NCC) 9. Benefit payments from the SSS (Sec 16 RA 1161 as amended by PDs 24, 65, and 177) 10. Copyrights and other rights in intellectual property under the former copyright law (PD 49 cf Sec 239.3, RA 8293); and 11. Bonds issued under RA1000 (NASSCO v. CIR L-17874 31 August 1963) (Regalado, F. th Remedial Law Compendium Vol. 1, 9 ed., pp. 481-482) 5. PROCEEDINGS WHEN PROPERTY IS CLAIMED BY THIRD PERSONS Q: When can you file a third party claim? A: At any time, so long as the sheriff has the possession of the property levied upon, or before the property is sold under execution. Q: What are the requisites for a claim by a third person? A: Requisites for a claim by a third person: 1. 2. 3.

4.

The property is levied; The claimant is a person other than the judgment obligor or his agent; 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 the judgment obligee.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What is the procedure for a 3rd party claim? A: 3rd party should make an affidavit of his title thereto, or right of possession thereof, and should serve such affidavit upon the sheriff and a copy thereof to the judgment obligee. Q: What is the duty of the officer if the property sought to be levied on is claimed by another person and proper proof of ownership or possession is served upon the officer making levy? A: 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 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 indemnify 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 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. Q: Allen obtained a money judgment against Bob. After the finality of the decision, the court issued a writ of execution for the enforcement thereof. Conformably with the said writ, the sheriff levied upon certain properties under Bob's name. Cathy filed a third-party claim over said properties claiming that Bob had already transferred the same to him. Allen moved to deny the third-party claim and to hold Bob and Cathy jointly and severally liable to him. After due hearing, the court denied the third-party claim and rendered an amended decision declaring Bob and Cathy jointly and severally liable to Allen for the money judgment. Is the ruling of the court correct'? Explain.

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A: No, Cathy has not been impleaded as a party defendant. He cannot be held liable for the judgment against Bob without a trial. In fact, since no bond was filed by Allen, the sheriff is liable to Cathy for damages. Cathy can file a separate action to enforce his third-party claim. It is in that suit that Allen can raise the ground of fraud against Cathy. However, the execution may proceed where there is a finding that the claim is fraudulent (Tanongan v. Samson, G.R. No. 140889, May 9, 2002). (2005 Bar Question) Q: If the writ of execution is issued in the name of the Republic of the Philippines and the property object of the levy is being claimed by a third person, is there a necessity for filing a bond? A: 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. a. IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND REPLEVIN Certain remedies available to a third person not party to the action but whose property is the subject of execution: 1.

2.

Terceria – By making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party (Sec. 14, Rule 57). Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. the sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed. Exclusion or release of property – Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the application, the

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

3.

4.

court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (Ching vs. CA, 423 SCRA 356). Intervention – This is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19). Accion Reinvindicatoria – The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or in a separate action. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case. 6. RULES ON REDEMPTION

Q: Is the right of redemption available to any type of property? A: No. There is no right of redemption as to personal properties for the sale is absolute. Such right is available only to real properties. Q: Distinguish a judgment obligor from a redemptioner? What are their rights as regards redemption of real property? A: JUDGMENT OBLIGOR

Judgment obligor, or his successor in interest (e.g. transferee, assignee, heirs, joint debtors)

Within 1 year from the date of registration of the certificate of sale.

REDEMPTIONER One who has a lien by by virtue of an attachment judgment, judgment, or mortgage on the property sold, SUBSEQUENT to the lien under which the property was sold (Sec. 27) Note: If creditor’s lien is prior to the judgment, he is not a redemptioner because his interests in his lien are fully protected. 1. Within 1 year from the date of registration of the certificate of sale if he is the first redemptioner, or 2. Within 60 days from the last redemption, if he be a subsequent redemptioner, provided that the judgment debtor has not exercised his right of redemption.

Once he redeems, no further redemption is allowed. The person to whom redemption was made must execute and deliver to the judgment obligor a certificated of redemption.

Further redemption is allowed, even after lapse of 1 year, as long as each redemption is made within 60 days after the last.

Note: The period of redemption is not suspended by an action to annul the foreclosure sale. The periods for redemption are not extendible; but the parties may agree on a longer period, in such case, it would be a conventional redemption. Note: A surety is not a successor in interest. The right of redemption cannot be levied on by judgment creditor.

Q: Can redemption be made in other forms than cash? A: Yes. The rule is liberal in allowing redemption and it has been allowed in the case of a cashier’s check and certified bank checks. Q: Who may redeem the real property sold? A: Real property sold, or any part thereof sold separately, may be redeemed by the following persons: 1. Judgment obligor, or his successor in interest in the whole or any part of the property; 2. Redemptioner – 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. Note: A mortgagee can be a redemptioner even if his mortgage has not yet matured, but his mortgage contract must have been executed after the entry of judgment. Generally in judicial foreclosure sale, there is no right of redemption, but only equity of redemption. In sale of estate property to pay off debts of the estate, there is no redemption at all. Only in extrajudicial foreclosure sale and sale on execution is there the right of redemption.

Q: What are the requirements to enable the redemptioner or judgment obligor to redeem the real property? A: The judgment obligor, or redemptioner, may redeem the property from the purchaser at any

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 time within 1 year from the date of the registration of the certificate of sale by paying the purchaser: 1. the amount of his purchase; 2. amount of any assessments or taxes which the purchaser may have paid after purchase; 3. if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien; and 4. With 1 percent per month interest up to the time of redemption.

2. 3. 4.

Reversal or setting aside of judgment; The fact that the property was exempt from execution; or If a third person has vindicated his claim to the property (Sec. 34).

Q: What is the remedy of purchaser of real property sold on execution in the above situations? A: 1.

Q: Is the bona fide tender or delivery of the redemption price required in offer to redeem?

2. A: 3.

GR: The offer to redeem must be accompanied with a bona fide tender or delivery of the redemption price. XPN: The right to redeem is exercised through the filing of a complaint to redeem in the courts. Q: What are the rights of a judgment debtor?

7. EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS UNSATISFIED Q: What is the effect when the judgment was returned unsatisfied? A: 1.

A: 1.

2.

3. 4. 5.

To remain in possession of the property until the expiration of period of redemption; To collect rents and profits until the expiration of period of redemption (Sec. 32); To use the property in the same manner it was previously used; To make necessary repairs; and Use it in the ordinary course of husbandry (Sec. 31).

2.

3.

Q: When is the purchaser entitled to possession and conveyance of the property sold on execution?

4.

A: The purchaser is entitled to possession and conveyance of the property if no redemption is made within one (1) year from the date of the registration of the certificate of sale (Sec. 33).

5.

Q: What are the instances when the purchaser may recover the purchase price from the judgment obligor? 6. A: 1.

2.

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If the purchaser or his successor-ininterest fails to recover possession of the property sold on execution sale; or Is evicted due to: 1. Irregularities in the proceedings concerning the sale;

Bring an action against the judgment creditor; File a motion for revival of judgment in his name against the judgment debtor; or Bring an action to recover possession of property.

The judgment creditor may cause examination of the judgment debtor as to his property and income (Sec. 36) (2008 Bar Question); The judgment creditor may cause examination of the debtors of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession (Sec. 37); If the court finds, after examination, that there is property of the judgment debtor either in his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment (Sec. 37); If the court finds the earnings of the judgment debtor are more than sufficient for his family’s needs, it may order payment in fixed monthly installments (Sec. 40); The court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property (Sec. 41); If the court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor, mortgagee, or otherwise, and his interest can be ascertained without controversy, the court may order the sale of such interest (Sec. 42); and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 7.

If the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property, or denies the debt, the court may authorize the judgment creditor to institute an action to recover the property, forbid its transfer and may punish disobedience for contempt (Sec. 43).

Q: Anna, a Manila resident, sued Betsie resident of Malolos, Bulacan, in the RTC Manila for a sum of money. The trial court rendered judgment holding Anna liable for the entire amount prayed for in the complaint. After the judgment had become final, a writ of execution was issued by the court. As the writ was returned unsatisfied, Anna filed a motion for an order requiring Betsie to appear before it and be examined regarding his property and income. How should the court resolve the motion? A: The RTC Manila should deny the motion. Betsie resides in Malolos, Bulacan. When a writ of execution is returned unsatisfied, 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. However, 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 (Sec. 36). (2002 Bar Question) 8. EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR Q: How is examination of obligor of judgment obligor done? A: Court may order to be examined any person or corporation who has property of the debtor in order to bind the credits due to debtor. Note: The garnishee becomes a forced intervenor, requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation). Note: A party or other person may be compelled, by an order of subpoena, to appear before the court or commissioner to testify as provided in Sec 36 & 37. Failure to obey may be punished by contempt. If examination is before a commissioner, he must take it in writing and certify it to the court. All examinations and answers must be under oath.

9. EFFECT OF JUDGMENT OR FINAL ORDERS

A: 1.

2.

3.

4.

5.

If judgment or final order is on a specific thing, the same is conclusive upon the title to thing (Sec. 47, Rule 39). With respect to a probate of a will, or the administration of the estate of a deceased person, the same is conclusive upon the will or administration but the probate of the will or the granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate and not a conclusive presumption of death (Sec.47, Rule 39). With 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 condition, status or relationship (Sec.47, Rule 39). In other cases, if the judgment be with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, the judgment or final order is 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 the same capacity, relationship (Sec.47, Rule 39). In any other litigation between the same parties or their successors in interest, that only is deemed to be adjudged in a former judgment or final order which appear upon its face to have been adjudged, or which was actually and necessarily included therein or necessary thereto (Sec.47, Rule 39).

Q: When the judgment is final and executory, is it always ministerial upon the court to order execution? A: GR: Trial Court has ministerial duty to order execution of final and executor judgments. It cannot refuse execution and is compellable by mandamus. XPN: (Same as grounds to Quash writ of execution) 1. Change in the situation of the parties which makes the execution inequitable or unjust; 2. Writ of execution varies judgment; 3. Controversy was never submitted to the judgment of the court; 4. Execution is sought against property exempt from execution;

Q: What is the effect of final judgments? ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 5.

Terms of the judgment are not clear and leaves room for interpretation; 6. Writ of execution is improvidently issued; 7. Writ of execution is defective in substance; 8. Writ of execution is issued against the wrong party; 9. Judgment debtor has been paid or otherwise satisfied; and 10. Writ of execution was issued without authority. Note: In the above exceptions, remedy is certiorari (Rule 65)

Q: When may execution of final and executory judgment be enjoined? A: 1. 2.

3. 4.

Upon fling of a petition for relief from judgment; Attack against a judgment which is void for lack of jurisdiction, or obtained through fraud; On equitable grounds; and In cases falling under the 10 exceptions above.

Q; Discuss the effect of judgment under paragraph A and B of Section 47 A: In Rem (Par. a) The decision is conclusive upon the title of the thing, the will or administration or the condition, status or relationship of the person. i.e. land registration cases

Q: What are the requisites of res judicata? A: 1. 2. 3. 4.

Note: judgment for support is not final in a sense that it cannot be modified. Support depends not only on the varying conditions affecting the ability of the oblgor to pay, but also upon the ever-changing needs of the beneficiary himself.

A: GR: Final and executor judgments cannot be amended or modified. Any amendment which substantially affects a final and executor judgment is null and void for lack of jurisdiction. XPN: Judgment may be modified as to: 1. Clerical errors or mistakes - errors not as a result of exercise of judicial functions 2. To clarify ambiguity; or 3. To enter nunc pro tunc orders – to make a present record of an order which the court rendered at a previous terms but, by inadvertence has not been entered.

i.e. actionreinvindicatoria

Note: In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud or clear mistake of law or fact. (par. 4, Sec. 48)

Note: Judgment novated by a subsequent agreement cannot be executed (e.g. agreement entered into by the parties other than terms of payment).

Q: Can final and executory judgments be modified?

In Personam (Par. b) The judgment or final order is conclusive between parties and their successors-in-interest, litigating for the same thing and under the same title and in the same capacity.

Former judgment or order must be final and executory; Court has jurisdiction over subject matter and parties; Former judgment or order was on merits; and Identity of parties, subject matter, and cause of action between first and second action. (TEST: determine identity if cause of action)

10. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS Q: What is the effect of a foreign order? A: 1. 2.

Against a specific thing – conclusive upon title to the thing. Against a person – presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

Note: In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud, or clear mistake of law or fact.

Q: How is a foreign judgment enforced? A: By filing an action based on said judgment; foreign judgment is presumed to be valid and binding. Note: to recognize a foreign judgment, raise the foreign judgment as res judicata in the defense (not in a separate motion)

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

R. PROVISIONAL REMEDIES Q: Distinguish the different kinds of provisional remedies. A: Preliminary Attachment (Rule 57)

Preliminary Injunction (Rule 58)

Receivership (Rule 59)

Replevin (Rule 60)

Support Pendente Lite (Rule 61)

Subject Matter Personal and real property

SC, CA, RTC, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

Personal property capable of manual delivery Jurisdiction (Court which can grant it)

Particular act(s)

SC, CA, RTC, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

Personal and real property

Money or other forms of support

SC, CA, RTC, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

GR: Family Court XPN: In criminal actions, as long as the civil aspect is tried together with it , the RTC or MTC having jurisdiction may also issue this remedy.(e.g Art. 345 (3) RPC, in crimes against chastity, “In every case to support the offspring..”)

RTC, Family Court, Metropolitan, Municipal, and Municipal Circuit Trial Courts

Who may grant it Court where action is pending, the CA or Only the Court where the SC, or a member Courts where the action is pending; thereof, even if action action is pending, Lower court, CA or SC is pending in the Only the court the CA or the SC provided action is lower court. where action is (Sec. 2) pending in the same Appellate court may pending. court which issues the allow application for injunction (Sec. 2) receivership to be decided by the court of origin (Sec. 1) When available At any stage of the At the At any stage of the At any stage of the proceeding and even commencement action but before action but before after finality of of the action but entry of final judgment or final order judgment; anytime before answer is judgment (Sec. 1) (Sec. 1) prior to satisfaction of filed (Sec. 1) judgment How applied for File verified application File verified and applicant’s bond; if application and application is included in applicant’s bond; the initiatory pleading, application may also File affidavits and File affidavits and the adverse party should be included in applicant’s bond applicant’s bond be served with summons initiatory pleading in (Sec. 3) (Sec. 2) together with a copy of actions for the initiatory pleading and foreclosure of the applicant’s affidavit mortgage (Secs. 1 and and bond (Sec.4) 2) Purpose(s) 1. To seize the To require a party or a To place the To recover property of the court, agency or a property subject of possession of adverse party in person to refrain from an action or personal

Court of origin and appellate court. (Ramos v. CA, GR No. L-31897, June 30, 1972)

At the commencement of the action or at any time prior to the judgment or final order (Sec. 1)

File verified application; bond not required (Sec. 1)

To compel adverse party to provide support while the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2.

advance for the satisfaction of judgment that may be recovered in cases falling under Sec.1, Rule 57. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. (Quasha v. Juan,G.R.No.L54158, Nov. 19, 1982)

1. GR: In an action for the recovery of a specified amount or damages. XPN: a. moral and exemplary b. against a party who is about to depart from the Philippines with intent to defraud his creditors; 2. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or by any other person in a fiduciary capacity, or for a willful violation of duty; 3. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property has been concealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person; 4. In an action against a party who has been guilty of fraud in contracting the debt or incurring the

114

doing a particular act or to require the performance of a particular act To prevent future injury and maintain the status quo. (Kencht v. CA, G.R. No. 97962, Nov. 17, 1993)

1. That the applicant is entitled to the relief demanded which consists in restraining the commission or continuance of the act complained of, or in requiring the performance of an act for a limited period or perpetually 2. Commission, continuance or nonperformance of the act during the litigation would probably work injustice to the applicant; or 3. Party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act probably in violation of the rights of the applicant respecting the subject of the action and tending to render the judgment ineffectual (Sec. 3)

proceeding under the control of a third party for its preservation and administration litis pendentia and to protect the rights of all the parties under the direction of the court.

Ground(s) 1. When the applicant has an interest in the property or fund subject of the proceeding and such property is in danger of being lost, removed or materially injured unless a receiver is appointed; 2. In foreclosure of mortgage, when the property is in danger of being wasted or dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or that it has been agreed upon by the parties; 3. After judgment, to preserve the property during the pendency of an appeal or to dispose of it according to the judgment or to aid execution when execution has been returned unsatisfied of the judgment obligor refuses to apply

property. (1999 Bar Question)

Applicant is: 1. The owner of the property claimed; or 2.

Entitled to the possession thereof but the property is wrongfully detained by the adverse party (Sec. 2)

action is pending in court.

When equity and justice require, having due regard to the probable outcome of the case and such other circumstances as may suggest the reasonability of granting support pendente lite

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE obligation or in its performance 5. In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; 6. In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication

his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; or 4. When appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation (Sec. 1). Whether principal or ancillary action

Ancillary remedy

Principal action/ ancillary remedy

Principal action/ ancillary remedy

Principal action/ ancillary remedy

Ancillary to: 1. Action for support; or 2. In a criminal action where civil liability includes support for the offspring provided the civil aspect thereof has not been waived, reserved or instituted prior to its filing.

During the pendency of the case unless the defendant files a redelivery bond.

During the pendency of the case.

Not required ; may be issued ex parte

Required – Within 3 days after comment is filed or after expiration of period of filing

Effectivity During the pendency of the case unless earlier discharged or quashed by the court

During the pendency of the case unless earlier discharged or quashed by the court

Until discharged by the court

Requirement of Hearing GR: Required XPN: Great or Not required; may be irreparable injury would issued ex parte (2001 result / extreme urgency Required Bar Question) and applicant will suffer grave injustice and irreparable injury (Sec. 5) Bond Requirement Bond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged to the adverse party and all damages that he may sustain by reason of the granting of provisional remedy prayed for, if the court shall finally adjudge that the applicant was not entitled thereto (Sec. 4, Rule 57; Sec. 4, Rule 58, Sec. 2, Rule 59 ) 2 bond requirement for receivership: 1. Filed by the applicant; and 2. Filed by the receiver.

Bond executed to the adverse party in double the value of the property, for the return of the property to the adverse party if such return be adjudged and for the payment to the adverse party of such sum as he may recover from the applicant in the action (Sec. 2)

Immediately Executory Yes No Discharge of Remedy By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge No

Yes

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

No bond required.

Yes Not applicable.

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UST GOLDEN NOTES 2011 of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court or to the value of the property if with respect to a particular property to secure the payment of any judgment that the adverse party may recover in the action. Counter Bond Filing of counter-bond made only upon showing that the issuance or continuance thereof would cause irreparable Amount of Amount of counterCash deposit may be damage to the party or counter-bond to bond should be made in lieu of the person enjoined while the Not applicable. be fixed by the double the value of counter-bond (Sec. 12) applicant can be fully court (Sec. 3) the property (Sec. 5) compensated for such damages as he may suffer; counter-bond alone will not suffice to discharge the injunction (Sec. 6) Other Grounds For Discharge 1. Improper or irregular issuance or enforcement or 1. Plaintiff’s bond is 1. Appointment insufficiency of bond. found to be 1. Insufficiency of the was obtained (Sec. 13) insufficient or application (Sec. 9) without 2. Judgment rendered defective and is sufficient cause. against attaching not replaced with 2. Other grounds (e.g. creditor (Sec. 19) proper bond; or applicant’s bond is 2. Bond posted by 3. Property attached is insufficient/ defective), the applicant / exempt from execution 2. Property is not upon affidavits of the receiver is (Sec. 2 & 5) delivered to the party or person insufficient (Sec. 4. Attachment is plaintiff for any enjoined 3). excessive, but the reason (Sec. 6). discharge shall be limited to the excess (Sec. 13). Damages in Case Applicant is Not Entitled Thereto or For Irregularity of the Procurement Of the Provisional Remedy When the judgment or final order finds that the person who has been Requisites: providing support 1. Owner of the property attached must file before trial or before perfection of appeal or pendente lite is not before judgment becomes executory an application for damages; liable therefor, the court 2. Party who availed of provisional remedy and his surety must be notified, showing right shall order the recipient to damages and amount thereof; and to return the amounts 3. Such damages may be awarded only after proper hearing and shall be included in the already received with judgment of the main case. interest from the date of actual payment, without If the judgment of the appellate court is favorable to the party against whom provisional prejudice to the right of remedy was effected: the recipient to obtain Application must be filed with the appellate court before the judgment of the reimbursement in a appellate court becomes executory. Appellate court may allow application to be heard separate action from and decided by the trial court. the person legally obliged to give support. If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy the award: If the recipient fails to Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. reimburse the amount, 9, Rule 59; Sec. 10, Rule 60) the person who . provided the same may Note: Any award of damages for the wrongful issuance of a provisional remedy should be seek reimbursement in a recovered in the same case. The recovery of damages cannot be had in a separate action. separate action from the person legally obliged to give such support (Sec. 7)

116

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

1. NATURE OF PROVISIONAL REMEDIES

d. Production Order (Riano, Civil Procedure: A Restatement for the Bar, p. 534-536, 2009 ed.)

Q: What are provisional remedies? A: Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for the purpose of the ultimate effects, of a final judgment in the case. Q: What is the nature of provisional remedies? A: 1. 2.

Temporary measures availed of during the pendency of the action Mere incidents and are dependent upon the result of the main action

Q: What are the purposes of provisional remedies? A: Provisional remedies are resorted to: 1. To preserve or protect their rights or interests while the main action is pending; 2. To secure the judgment; 3. To preserve the status quo; 4. To preserve the subject matter of the action.

2. JURISDICTION OVER PROVISIONAL PROVISIONAL REMEDIES Q: Which court has jurisdiction over applications for provisional remedies? A: GR: Applications must be filed with the court having jurisdiction over the pending principal action. Even an inferior court may grant such remedy, however, where the main action is for support, the provisional remedy of support pendente lite may not be granted by a Municipal Trial Court because the main action is within the jurisdiction of the Family Court. (Riano, Civil Procedure: A Restatement for the Bar, p. 532, 2009 ed.) XPN: in criminal actions, as long as the civil aspect is tried together with it, the RTC or MTC having jurisdiction may also issue the remedy of Support pendent Lite. (e.g. Art 345 (3) RPC, in crimes against chastity, “in every case to support the offspring…”) Q: When are these provisional remedies available? A: 1.

Q: What are the Provisional Remedies under the Rules of Court? 2. A: 1. 2. 3. 4. 5.

Preliminary Attachment (Rule 57) Preliminary Injunction (Rule 58) Receivership (Rule 59) Replevin (Rule 60) Support Pendente Lite (Rule 61)

Q: What are the Other Provisional Remedies available? A: 1. 2. 3.

4. 5.

Temporary custody over a minor Deposit in Actions for Annulment of Sale (Reyes v. Lim) Restraining order against the accused in cases of violence among immediate family members living in the same domicile and household Hold departure orders issued by Regional Trial Courts in criminal cases Interim reliefs under Writ of Amparo a. Temporary Protection Order b. Witness Protection Order c. Inspection Order

3.

Attachment, injunction and support pendent lite – may be applied for before final judgment Replivin – may be applied before the answer Receivership – may be applied for at any stage of the action and even after final judgment. 3. PRELIMINARY ATTACHMENT

Q: What is Preliminary Attachment? A: It is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant for the same to be held by the Sheriff as security for the satisfaction of whatever judgment may be rendered in the case ( Davao Light and Power, Inc.v. CA, 204 SCRA 343). Note: This is only an ancillary remedy. There is no separate action called preliminary attachment. It is not a distinct proceeding and is availed of within a principal action because it is a mere provisional remedy. The grant of remedy is addressed to the discretion of the court. (Riano, Civil Procedure: A Restatement for the Bar, p. 537, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: What is attachment?

the

purpose

of

preliminary

Q: What are the kinds of attachment? A:

A: Preliminary attachment is designed to: 1. seize the property of the debtor before final judgment and put the same in custodialegis even while the action is pending for the satisfaction of a later judgment (Insular Bank of Asia and America v. CA, 190 SCRA 629); or

1.

2. 2. to enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be effected (Philippine Commercial International Bank v. Alejandro, 533 SCRA 738). Q: Who may apply for a preliminary attachment? A: It is not only the plaintiff who may apply for a writ of preliminary attachment. A defendant who asserts a counterclaim, a cross-claim or a thirdparty claim may also avail of the remedy. Sec. 1 of Rule 57 provides that the “plaintiff or any proper party may have the property of the adverse party attached.” (Borja v. Platon, 73 Phil. 659) (Riano, Civil Procedure: A Restatement for the Bar, p. 538, 2009 ed.)

3.

Preliminary attachment- one issued at the commencement of the action or at anytime before entry of the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided for by the rules. Garnishment- the plaintiff seeks to subject either the property of the defendant in the hands of the third person called the garnishee, to his claim or the money in which said third person owes the defendant (RCBC v. Castro, No. L- 34548, November 29, 1988). Garnishment simply impounds the property in the possession of the garnishee and maintains the status quo until the main action is finally decided. Levy on execution- writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment.

Q: Distinguish Preliminary attachment from Final attachment.

Q: What is the nature of the proceeding? A: A: Attachment is in the nature of proceeding quasi in rem (Banco- Espanol Filipino v. Palanca, 37 Phil 921) although sometimes referred to as an actionin rem (Valdemieso v. Damalerio, 451 SCRA 638, February 17, 2005). Note: Whether in rem or quasi in rem, the legal effects are identical because in both cases jurisdiction over the person of the defendant is not required as long as the court acquires jurisdication over the res (Biaco v. Countryside Rural Bank, 515 SCRA 106).

Q: Once prayed for, is it mandatory that the court grant the writ of preliminary attachment? A: The grant of preliminary attachment is addressed to the sound discretion of the court. Q: What is the effect if a preliminary action is availed of and is granted in an action purely in rem? A: When availed of and granted in an action purely in personal, it converts the action to one that is quasi in rem. This transformation of the nature of the action dispenses with the need of acquiring jurisdiction over the person of the defendant.

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PRELIMINARY ATTACHMENT (Rule 57) It is an auxiliary remedy to give security for a judgment still to be rendered. There is no sale because the decision has not yet been rendered. Resorted to at the commencement of the action or at any time before the entry of judgment, for the temporary seizure of the property of the adverse party The proceeds of the sale, in cases allowed, are in custodial egis (Sec. 11)

FINAL ATTACHMENT (Rule 39) It is a means for the execution of a final judgment. It should always be accompanied by a sale at public auction. Available after the judgment in the main action had become executor, and for the satisfaction of said judgment.

The proceeds of the sale are turned over to the attaching creditor

a. GROUNDS FOR THE ISSUANCE Q: What are the groundsfor the issuance of a writ of preliminary attachment? (When is a Preliminary Attachment Proper?)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE A:

b. 1.

2.

3.

4.

5.

6.

Actions for the recovery of a specified amount of money or damages XPN: o moral and exemplary damages o against a party who is about to depart from the Philippines which intent to defraud his creditors Actions for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment as such, or by other person in a fiduciary capacity, or for a willful violation of duty Actions to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person Actions against a party who has been guilty of a fraud in contracting the debt or incurring or performance the obligation upon which the action is brought Actions against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors Actions against non-residents not found in the Philippines, or person upon whom summons may be served by publication

Note: Insolvency of defendant is not a ground for attachment especially when defendant has not been shown to have committed any act intended to defraud its creditors (Spouses Yu v. Ngo Yet Te, G.R. No. 155868, February 6, 2007).

b. REQUISITES Q: What are the requisites in the application for a writ of preliminary attachment? A: 1.

2.

3.

Filed at the commencement of action or any time before entry of judgment (Sec. 1, Rule 57) Application by any party and affidavit showing: (Sec. 3, Rule 57) a. Sufficient cause of action b. Based on grounds mentioned in Section 1 c. No other sufficient security d. Amount due to applicant or value of property he is entitled to recover Filing of a bond (Sec. 4, Rule 57): a. Executed in favor of an adverse party in an amount fixed by court

To answer for all costs and damages

Note: No notice to the adverse party or hearing is required as the time which the hearing will entail could be enough to enable the defendant to abscond or dispose of his property before the writ issues (Regalado, Remedial Law Compendium, Vol I, p. 624, 2007 ed.).

Q: When may an order for preliminary attachment be applied? A: The writ may be applied: 1. At the commencement of the action, or 2. At any time before entry of judgment (Sec. 1, Rule 57). c. ISSUANCE AND CONTENTS; AFFIDAVIT AND BOND Q: When may an order of attachment be issued and what should be contained therein? A: (Sec. 2, Rule 57): 1. May be issued ex-parte or 2. upon motion after notice and hearing Requiring sheriff to attach as much property which is not exempt from execution, as may be sufficient to satisfy the judgment Q: What should the affidavit contain? A: The Affidavit of the applicant, or some other person who personally knows the facts, must show that: 1. sufficient cause of action exists; 2. the case is one of those mentioned in Section 1; and 3. there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. Q: What is the basis of the bond’s amount? A: The bond shall answer for: 1. All the costs which may be adjudged to the adverse party; and 2. All damages which he may sustain by reason of the attachment. Q: How may the writ be issued? A: The writ of preliminary attachment may be granted by:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

119

UST GOLDEN NOTES 2011 1.

2.

By motion and notice of hearing by the court in which the action is pending and may even be issued by the CA or the SC (Sec. 2, Rule 57); It may also be issued ex parte and even before summons is served upon the defendant. However, the writ may not be enforced and may not validly implemented unless preceded by a service of summons, a copy of the complaint, the application for attachment, the order of attachment and the attachment bond (Davao Light & Power Co., Inc. v. CA, 204 SCRA 343).

Q: What is the rationale for allowing the ex parte issuance of a writ of preliminary attatchment? A: An ex parte issuance of the writ is intended to preempt any possible disposition of property by the adverse property to the detriment of the attaching creditor and thus defeat the very purpose of attachment (Mindanao Savings & Loan Association, Inc. v. CA, 172 SCRA 480). Q: Alfred filed an action against Banjo for collection of sum of money with an ex-parte application for a writ of preliminary attachment which was granted by the trial court. A notice of garnishment was served by the sheriff upon the bank and summons was subsequently served upon Banjo. Banjo then filed a motion to dissolve the writ of preliminary attachment on the ground that the court did not acquire jurisdiction over his person as the writ was served ahead of the summons. Resolve the motion. A: The motion should be denied. The fact that the writ of preliminary attachment was served ahead of the summons did not affect the jurisdiction of the court over his person. It makes the writ unenforceable, however, all that is required is to reserve the writ. (2005 Bar Question) Note: Where the writ of preliminary attachment had already been implemented, the subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service. (Torres v. Satsatin, G.R. No. 166759, November 25, 2009)

d. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE Q: What is the Rule on Prior or Contemporaneous Service of Summons? A: Enforcement of the writ of preliminary attachment must be preceded by or simultaneously

120

accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party. Jurisdiction must first be acquired through valid service of summons first before a preliminary attachment may be enforced. This Rule is not necessary for the validity of the ISSUANCE of a writ of attachment (Davao Light v. CA, 204SCRA 343 (1991)), it is however necessary for the validity of the ENFORCEMENT of the writ. (Onate v. Abrogar, 241 SCRA 659 (1995)) Q: What are the cases in which contemporaneous service is not required? A: The requirement of prior or contemporaneous service of summons shall not apply where: a. the summons could not be served despite diligent efforts; b. the defendant is a resident of the Philippines temporarily absent therefrom; c. the defendant is a non-resident of the Philippines; or d. The action is in rem or quasi in rem (Sec. 5, Rule 57). e. MANNER OF ATTACHING REAL AND PERSONAL PROPERTY Q: How can a property be attached? A: (Sec. 7, Rule 57) 1. Real property, growing crops or interest therein a. File a copy of the Order of Attachment with the proper Registry of Deeds and Occupant or his agent within the province b. Description of the property c. Notice of attachment 2. Personal property capable of manual delivery – sheriff taking into custody and safely keeping it, he wll issue a receipt; 3. Stocks, shares or interest – Leaving copy of the writ and notice of attachment with President or Managing Agent 4. Debts and credits, bank deposits, financial interests, royalties, commission and other personal property not capable of manual delivery - Leaving copy of the writ and notice of attachment with person owing or having custody over the property 5. Interest in the estate of a decedent – Leaving copy of writ and notice of attachment with: a. Executor or administrator of estate b. Clerk of Court where estate is being settled

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE

6.

c. Heir, devisee, or legatee; Property in custodialegis – writ to the court or agency and notice to custodian.

A: 1.

Q: What remedies are available if property is being claimed by a third person? A: 1. 2. 3.

File a Third Party Complaint or terceria (Sec. 14, Rule 57) File a Motion for Intervention File an independent action to recover property

f. DISCHARGE OF ATTACHMENT OF ATTACHMENT AND COUNTERBOND Q: How is attachment discharged? A: 1.

If the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment. Note: This motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movant makes a cash deposit or files a counter- bond executed to the attaching party with the clerk of court where the application is made in an amount equal to that fixed by the court in the order of attachment exclusive of costs (Sec. 12, Rule 57).

2.

Attachment may likewise be discharged without the need for filing of a counterbond. This is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion he proves that: a. The attachment was improperly or irregularly issued or enforced (Sec. 13, Rule 57); b. That the bond of the attaching creditor is insufficient or that the attachment is excessive and must be discharged as to the excess (Sec. 13, Rule 57); c. That the property is exempt from execution, and as such is also exempt from preliminary attachment (Sec. 2, Rule 57).

Q: What are the grounds for the discharge of a preliminary attachment?

2. 3.

It must be based on the following grounds: a. Writ was improperly or irregularly issued or enforced (Sec. 13, Rule 57) b. Insufficiency of bond (Sec. 13, Rule 57) c. Excessive attachment (Sec. 13, Rule 57) o Effect: Partial discharge (Regalado, Remedial Law Compendium, Vol. I, p. 683, 2005 ed.) d. No ground for attachment (Sec. 1, Rule 57) e. Property is exempt from execution (Secs 2 and 5, Rule 57) f. Judgment is rendered against the attaching creditor (Sec. 19, Rule 57) g. Dissolution of attachment 1 month next preceding the commencement of insolvency proceedings (Insolvency Law) (Feria, Civil Procedure Annotated, Vol. II, p. 305, 2001 ed.) Filing of a cash deposit or counterbond (Sec. 12, Rule 57) Notice and Hearing (Sec. 12, Rule 57)

Q: May an ex parte discharge of attachment be allowed? A: No. A discharge of attachment must be made only after hearing. Q: What is a counterbond? A: Counterbonds are replacements of the property formerly attached, and just as the latter, may be levied upon after final judgment (Security Pacific Assurance Corporation v. Tria- Infante, 468 SSCRA 526). Q: After Defendant AAA’s properties were attached, AAA filed a sufficient counterbond and the trial court discharged the attachment. For having suffered substantial prejudice due to the unwarranted attachment, the trial court rendered a judgment ordering plaintiff to pay damages since the latter was not entitled to the attachment. AAA moved to charge plaintiff’s attachment bond and such was objected to by the plaintiff and his sureties on the ground that the counter-bond lifted plaintiff’s attachment bond from all liability. Rule on AAA’s motion. A: AAA’s motion should be granted since the filing of a counterbond does not constitute a waiver of

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

121

UST GOLDEN NOTES 2011 his right to proceed against the attachment bond. Furthermore, it is a condition in an attachment bond that applicant will pay all the costs and damages which may be adjudged to the adverse party. (DM Wenceslao and Associates, Inc. v Readycon Trading and Construction Corp., G.R. No. 154106, June 29, 2004) g. SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED Q: How can the judgment be satisfied out of the attached property? A: (Sec. 15, Rule 57) 1. Payment to judgment creditor of all sales of perishable or other property 2. If any balance remains, selling property as may be necessary to satisfy the judgment 3. Collecting from all persons having possession of credits belonging to the judgment debtor and paying the proceeds to judgment creditor Note: If it remains unsatisfied, recovery may be had on the counterbond upon demand and notice and hearing to surety (Sec. 17, Rule 57).

Q: What is the order of satisfaction of judgment of attached property? A: Order of satisfaction of judgment of attached property: 1. Perishable or other property sold in pursuance of the order of the court; 2. Property, real or personal, as may be necessary to satisfy the balance; 3. collecting from debtors of the judgment obligor;

4.

Ordinary execution. 4. PRELIMINARY INJUNCTION

a. DEFINITION AND DIFFERENCES: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER Q: What is an injunction? A: It is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of an action. (Riano, Civil Procedure: A Restatement for the Bar, p. 564, 2009 ed.) Q: Distinguish a main action for injunction from a preliminary injunction (2006 Bar Question). A: INJUNCTION AS AN ANCILLARY REMEDY Exist as an incident to a principal action Seeks to preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action (CortezEstrada v. Heirs of Domingo Samut, 451 SCRA 275, February 14, 2005).

INJUNCTION AS A MAIN ACTION Independent action Seeks a judgment embodying a final injunction, to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act in violation of the rights of the applicant (Almeida v. CA, 448 SSCRA 681, January 17, 2005).

Q: What are the distinctions among a preliminary injunction, prohibition and status quo order? A: Injunction Directed against a party in an action

Prohibition Directed against a court, tribunal or person exercising judicial powers

Does not involve the jurisdiction of the court

Issued on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction

May be the main action (final injunction) or provisional remedy

Special Civil Action / Main action

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Status Quo Order Directed against the adverse party and is issued by the court motu propio(Regalado, Remedial Law Compendium, Vol. I, p. 721, 2005 ed.) Cease and Desist Order intended to maintain the last, actual, peaceable and uncontested state of things preceding the controversy without requiring the doing or undoing of an act (Regalado, Remedial Law Compendium, Vol. I, p. 722, 2005 ed.)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: Distinguish a preliminary injunction from a temporary restraining order.

Q: What are the requisites for the grant of a writ of preliminary injunction?

A: Preliminary Injunction

b. REQUISITES

Temporary Restraining Order Specie of preliminary injunction to maintain status quo before the resolution of the writ of preliminary injunction on the ground of irreparable injury

A: 1. 2.

3.

Note: Injury is irreparable if it is not susceptible to mathematical computation (DFA and BSP v. Falcon and BCA Int’l Corp., G.R. No. 176657, September 1, 2010)

Effective during the pendency of the action unless earlier dissolved Note: The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasijudicial agency shall decide the main case or petition within six (6) months from the issuance of the writ. (Sec. 5, Rule 58 as amended by A.M. No. 07-7-12-SC)

Duration (non-extendible): (Sec. 5, Rule 58) 1. If issued by RTC/MTC – 20days from notice to person restrained 2. If issued by CA – 60 days from notice 3. If issued by SC – until lifted Note: Prohibition against the renewal applies only if the same is sought under and by reason of the same ground for which it was originally issued (Regalado, Remedial Law Compendium, Vol. I, p. 725, 2005 ed.) Note: TRO is deemed automatically lifted after the expiration of the effectivity period

Notice and hearing always required (Sec. 5, Rule 58)

Can be issued to compel the performance of an act

GR: Notice and hearing required XPN: To prevent urgent / irreparable injury, TRO may be issued by an Executive Judge or Presiding Judge for 72hours and a summary hearing be subsequently conducted within such period Cannot be issued to compel the performance of an act

4.

5.

Verified application stating the grounds for its issuance Applicant must establish that he has a right to relief, a right in esse or a right to be protected and the act against which the injunction is directed is violative of such right Bond executed in favor of the person enjoined to answer for all damages Service of summons XPNs: a. Summons could not be served personally or by substituted service b. Adverse party is a resident but is temporarily absent from the Philippines c. Adverse party is a non-resident Notice and hearing (Sec. 5, Rule 58) c. KINDS OF INJUNCTION

Q: What are the classes of injunction? A: Preliminary Injunction (Ancillary Remedy) Order granted at any stage of the action or proceeding prior to the judgment or final order, requiring a party or a court, agency, or a person to refrain from or to perform particular act or acts (Sec. 1, Rule 58) GR: Bond is required XPN: Exempted by court (Sec. 4, Rule 58)

Final Injunction (Injunction as main action) Issued after final judgment of the case permanently restraining the defendant or making the preliminary injunction permanent (Sec. 9, Rule 58) No bond is required

Q: What are the kinds of preliminary injunction? A: Preventive / Prohibitory Injunction Requires a person to refrain from doing an act To preserve status quo

Mandatory Injunction Requires the performance of a particular act To restore status quo

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 d. WHEN MAY WRIT BE ISSUED Q: When may a writ for preliminary injunction be issued?

Q: In what actions will a preliminary injunction not lie? A: 1.

A: 1.

In petitions for relief from judgment entered through FAME; 2. In petitions for certiorari, prohibition, and mandamus; 3. In actions for annulment of judgments obtained through fraud; 4. In actions for annulment of judgment which are not patent nullities ( want of jurisdiction, lack of due process of law) (BancoEspanol v. Palanca, 37 Phil. 921); 5. To restrain continued breach of valid negative obligation; 6. To enjoin repeated trespass on land; 7. To restrain city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such; 8. To restrain voting of disputed shares of stocks; 9. To restrain sheriff from selling property on execution not belonging to judgment debtor; 10. To restrain criminal prosecutions as an exception, in the following cases: a. To afford adequate protection to constitutional rights of accused; b. When there is a prejudicial question which is sub judice; c. Prosecution under an invalid law; d. Double jeopardy is clearly apparent; e. Court wthout jurisdiction over the offense; f. Case of persecution rather than prosection; g. Charges manifestly false and motivated by lust for vengeance; h. There is clearly no prima facie case against accused and motion to quash on said ground is denied; and i. Preliminary injunction issued by SC to prevent threatened unlawful arrest of petitioners.

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Against Department of Public Works and Highways to stop government infrastructure projects (Secs. 3 & 4, RA8975) XPNs: a. Extreme urgency b. Matter involves a constitutional issue c. Grave injustice and irreparable injury will arise d. Supreme Court may issue the writ of preliminary injunction Note: Injunctive writs cannot be issued against any person or entity involved in the execution, implementation and operation of government infrastructure projects (P.D. 1818).

2. 3. 4.

5. 6.

7.

8.

9.

Act/s perpetrated outside the inferior courts’ territorial jurisdiction Against judgments of coordinate courts and quasi judicial bodies of equal rank Issuance will effectively dispose of the main case without trial and/or due process (Boncodin v. Nat’l Power Corporation Employees Consolidated Union, G.R. No. 162716, September 27, 2006) Labor disputes In issuance of licenses, concessions as to disposition, exploitation, utilization, exploration and/or development of natural resources (Sec. 1, PD605) Implementation of Comprehensive Agrarian Reform Program, collection of taxes, criminal prosecutions Mandatory foreclosure of a mortgage by a government financial institution (Sec. 2, P.D. 385) XPN: After hearing, it is established that 20% of outstanding arrearages is paid after the filing of the foreclosure proceedings Act/s sought to be enjoined already consummated XPN: Preliminary mandatory injunction may be availed of such that the dispossessor in forcible entry can be compelled to restore possession to the original possessor and an electric company can be compelled to provisionally reconnect the service it had disconnected. (Regalado, Remedial Law Compendium, Vol. I, p. 718, 2005 ed.)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 10. To transfer the property in litigation from the possession of one party to another where the legal title is in dispute and the party having possession asserts ownership thereto (Almeida v. CA and Sy, G.R. No. 159124, January 17, 2005) XPN: a. Forcible entry and unlawful detainer cases – preliminary mandatory injunction may be issued (Sec. 15, Rule 70) 11. Generally, injunction will not be granted to take property out of the possession of one party and place it in another whose title not clearly established; 12. When action for damages would adequately compensate injuries caused (Golding v. Balatbat, 36 Phil.941); 13. To prevent directors from discharging their offices and restoring former directors; 14. To restrain criminal prosecution where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction. Note: Only the SC may issue injunction against the government, officials or any person or entity whether public or private acting under the government direction, to restrain, prohibit, or compel acts pursuant to the implementation and completion of infrastructure projects. (Sec 3, RA 8975)

e. GROUNDS FOR ISSUANCE Q: What are the grounds for the issuance of a preliminary injunction? A: (Sec. 3, Rule 58) 1. Clear legal right of the applicant 2. The commission, continuance or nonperformance of the act or acts complained of will cause injustice to the applicant 3. Person against whom injunction is sought is doing, threatening, attempting, procuring or suffering to do some act or acts in violation of applicant’s rights tending to render the judgment ineffectual. f. GROUNDS FOR OBJECTION, DISOLUTION OF INJUNCTION OR RESTRAINING ORDER

1. 2.

3.

4.

Insufficiency of application for injunction or restraining order Issuance or continuance of injunction or restraining order causes irreparable injury while applicant may be fully compensated for damages by bond Extent of injunction or restraining order is too great Effect: modification Insufficiency or defective bond (Sec. 7, Rule 58).

Note: Filing of verified motion and bond as well as hearing is required

g. DURATION OF TRO Q: What is the duration of a TRO? A: 1.

2.

20 days from notice : if great or irreparable injury would result to the applicant before the matter can be heard on notice. 72 hours from issuance (issued ex parte) : if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury.

Note: after conducting a summary hearing within the 72 hours period until the application for Preliminary injunction can be heard, an extension of the 72-hour TRo may be asked. The total period of effectivity of the TRO shall not exceed 20 days including the 72 hours. While the efficacy of the TRO is ordinarily nonextendible, and the trial courts have no discretion to extend it considering the mandatory tenor of Rule 58, there is no reason to prevent a court from extending the 20-day period when it is the parties themselves who ask for such extension or for the maintenance of the status quo. (Federation of Land Reform Farmers of the Philippines v. CA, 246 SCRA 175 (1995)). Note: a TRO issued by the trial court or CA expires automatically upon the lapse of the 20 day period and 60 day period respectively. There is no need for any judicial declaration of dissolution (Paras v. Roura, 163 SCRA 1 (1988))

Q: What happens to the TRO if before the expiration of the 20-day period, the application for preliminary injunction is denied? A: It will be automatically vacated. (Bacolod City Water District v. Labayan, G.R. No. 157494, December 10, 2004)

Q: What are the grounds for objections or dissolution of injunction or restraining order? A: (Sec. 6, Rule 58) ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: Is a second application for preliminary injunction allowed? A: A second application for injunction, which rests in the sound discretion of the court, will ordinarily be denied unless it is based on facts unknown at the time of the first application. (Reyes v. Court of Appeals and Sun Life Insurance Office, Ltd., G.R. No. 87647, May 21, 1990). h. IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT INFRASTRUCTURE Q: During the Marcos regime, a reclamation contract was signed between the City of Mandaue and MALAYAN. However, that transaction appeared to be unauthorized. After sometime a confirmatory agreement was entered by the parties whereby MALAYAN bound itself to undertake the project at its own expense. After the People power, the plan was resubmitted to the President for approval, the City of Mandaue however started negotiated and contracted with FF Cruz & Co. for the reclamation project. MALAYAN filed a protest with the OP. The Executive Secretaery disapproved the project with MALAYAN, this prompted MALAYAN to file with the RTC a petition for prohibitory and mandatory preliminary injunction. RTC issued a TRO. Upon posting a bond, injunction was issued. Whether or not a writ of preliminary injunction may be issued against the government? A: Under PD 1818 and RA 8735, injunction is not available to stop infrastructure projects of the government (Malayan Integrated Industries vs. CA, GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre and Stevedoring Services, 475 SCRA 426). This includes arrestre and stevedoring services. Note: Section 1 of PD 1818 provides that:No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation.

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i. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO ATTACHMENT Q: What is the rule on prior or contemporaneous service of summons in relation to attachment? A: No levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by theservice of summons, together with a copy of the complaint, the application forattachment, the applicant’s affidavit and bond, and the order and writ ofattachment, on the defendant within the Philippines. The requirement of prior or contemporaneous service of summons shall not apply in the following instances: 1. Where the summons could not be served personally or by substituted servicedespite diligent efforts; 2. The defendant is a resident of the Philippines who is temporarily out of the country; 3. The defendant is a non-resident; or 4. The action is one in rem or quasi in rem (Sec. 5). 5. RECEIVERSHIP Q: What is Receivership? A: Receivership is a provisional remedy wherein the court appoints a representative to preserve, administer, dispose of and prevent the loss or dissipation of the real or personal property during the pendency of an action. It may be the principal action itself or a mere provisional remedy; it can be availed of even after the judgment has become final and executory as it may be applied for to aid execution or carry judgment into effect. Q: Who is a receiver? A: Person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the discretion of the court. Q: Can a party to the action be appointed as a receiver? A: GR: Cannot be appointed

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE XPN: Consented to by all parties Note: A clerk of court cannot be appointed as a receiver (Abrigo v. Kayanan, G.R. No. L-28601, March 28, 1983)

b. REQUISITES Q: What are the requisites in the application for receivership? A:

Q: Which court may appoint a receiver?

1.

A: (Sec. 1, Rule 59) 1. Court where action is pending 2. Court of Appeals or Supreme Court or a member thereof

2.

Note: During pendency of appeal, appellate court may allow receiver to be appointed by court of origin

Q: What is the effect of a contract executed by a receiver without court approval?

3. 4. 5.

Party applying for receivership has an existing interest in the property in litigation Verified application filed at any stage of the proceedings even after final judgment, prior to the satisfaction of judgment (Sec. 1, Rule 59) Posting of bond (Sec. 2, Rule 59) Grounds stated in Sec. 1, Rule 59 Receiver must be sworn to perform his duties faithfully

c. REQUIREMENTS BEFORE ISSUANCE OF AN ORDER

A: Such contract will constitute his personal undertakings and obligations (Pacific Merchandising Corp. v. Consolacion Insurance & Surety Co., G.R. No. L-30204, October 29, 1976)

Q: What is the requirement before an order of appointment may be issued?

Note: Receivership cannot be effected on a property in custodialegis (LizarragaHnos. V. Abada, 40phil124). But a receiver can be appointed where a property in custody of an administrator or executor is in danger of imminent loss or injury. (Dolor v. Sindian, G.R. No. L27631, April 30, 1971)

A: The applicant must file a bond executed in favor of the party against whom the application is presented, in an amount fixed by court, to pay damages in case receivership is procured without sufficient cause. (Sec. 2, Rule 59)

a. CASES WHEN A RECEIVER MAY BE APPOINTED

Note: The court may require an additional bond for further security. (Sec. 2, Rule 59)

Q: In what cases may a receiver be appointed? A: (Sec. 1, Rule 59) 1. Applicant has an interest in the property or fund subject of the action is in danger of being lost, removed, or materially injured 2. Mortgaged property is in danger of being dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or 3. Stipulation in the contract of mortgage 4. To preserve the property after judgment during the pendency of the appeal or to dispose it according to judgment 5. To aid execution when execution has been returned unsatisfied 6. Judgment debtor refuses to apply his property in satisfaction of the judgment or to carry on the judgment 7. Appointment of receiver is most convenient and feasible means of preserving, administering or disposing of the property in litigation

d. POWERS OF A RECEIVER Q: What are the powers of a receiver? A: (Sec. 6, Rule 59) 1. Power to bring and defend actions in his own name Note: No action may be filed by or against a receiver without leave of court which appointed him

2. 3. 4.

5. 6. 7. 8.

9.

Take and keep possession of the property in controversy Receive rents Collect debts due to himself as receiver or to the fund, property, estate, person or corporation of which he is a receiver Compound for and compromise debts collected Make Transfers Pay outstanding debts Divide money and other property that shall remain among the persons legally entitled to receive the same Invest funds in his hands only by order of the court upon written consent of all the parties to action;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 10. Other acts which the court may authorize Note: Funds in the hands of a receiver may be invested only by court order and written consent of all parties to an action.

e. TWO KINDS OF BONDS Q: What is the 2-bond requirement in receivership? A: 1. 2.

Bond posted by the applicant (Sec. 2, Rule 59) Bond posted by receiver appointed (Sec. 4, Rule 59) f. TERMIINATION OF RECEIVERSHIP

Q: What are the grounds for the discharge of receiver? A: 1.

Posting of counterbond by adverse party (Sec. 3, Rule 59) Note: Where counterbond is insufficient or defective, receiver may be re-appointed (Sec. 5, Rule 59)

2.

3. 4. 5.

Appointment of receiver was made without sufficient cause (Sec. 3, Rule 59) Insufficient or defective applicant’s bond (Sec. 5, Rule 59) Insufficient or defective receiver’s bond (Sec. 5, Rule 59) Receiver no longer necessary (Sec. 8, Rule 59)

Q: How is receivership terminated? A: (Sec. 8, Rule 59) 1. By court motupropio or on motion by either party 2. Based on the following grounds: a. Necessity for receiver no longer exists b. Receiver asserts ownership over the property (Martinez v. Graño, G.R. No. L-25437, August 14, 1926) 3. After due notice and hearing to all interested party 6. REPLEVIN Q: What is replevin? A: Replevin is a proceeding by which the owner or one who has a general or special property in the thing taken or detained seeks to recover possession

128

in specie, the recovery of damages being only incidental (Am. Jur. 6). Replevin may be a main action or a provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. The main action for replevin is primarily possessory in nature and generally determines nothing more than the right of possession. Note: A writ of replevin may be served anywhere in the Philippines (Regalado, Remedial Law Compendium, Vol. I, p. 749, 2005 ed.)

Q: Distinguish attachment.

replevin

from

preliminary

A: Replevin Recovery of possession of personal property is the principal relief and damages are incidental This is available before defendant files an answer

Available only where defendant is in actual or constructive possession of personal property involved Extends only to personal property capable of manual delivery Used to recover personal property even if not being concealed, removed or disposed Cannot be availed of when property is in custodialegis(under attachment) or seized under search warrant Property of GOCCs cannot be reached

Sheriff takes possession of the property subject of the replevin and hold the same for a period of 5 days after which said property will be delivered to the party who obtained the writ. Bond to be posted is double the value of the property sought to be recovered

Preliminary Attachment Available even if recovery of personal property is only an incidental relief Available from commencement but before entry of judgment May be resorted to even if personal property is in the custody of a third person Extends to all kinds of property whether real, personal or incorporeal Recover property being concealed, removed or disposed Can be resorted to even if property is in custodialegis

Properties of GOCCs may be reached if utilized in its proprietary function. Sheriff does not take possession of the property attached except contructively placing it under custodia legis.

Bond amount is fixed by court and does not exceed the claim or value of the property to be attached

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Note: These remedies cannot be availed of in the same case.

1.

Q: To be able to secure financial accommodations from Makati Leasing, Wearever discounted and assigned several receivables under a Receivable Purchase Agreement. To secure the collection of the receivables assigned, private respondent executed a chattel mortgage over certain machineries which were bolted to the ground. Upon default Makati Leasing move for extrajudicial foreclosure of the mortgage properties and filed an action for replevin which was granted by the court. Can the machineries bolted to the ground be a subject of replevin?

2.

3.

4.

Applicant is the owner of the property claimed, particular description of such, entitlement to possession Property is wrongfully detained, alleging cause of detention according to applicant’s knowledge, information and belief Property has not been taken for tax assessment or fine, or seized by writ of execution, preliminary attachment, in custodialegis, if so seized, that it is exempt or should be released from custody Actual market value of the property

c. AFFIDAVIT AND BOND; REDELIVERY BOND A: Machineries bolted to the ground are real properties that may not be the subject to replevin (Makati Leasing and Finance Corporation v. Wearever Textile Mills Inc. GR No L- 58469, May 16, 1983). a. WHEN MAY WRIT BE ISSUED Q: When may a writ of replevin be issued? A: This may only be obtained when the defendant in the action has not yet filed his answer to the complaint where it is necessary to: 1. Protect plaintiff’s right of possession to property 2. Prevent defendant from destroying, damaging or disposing of the property Q: Can a writ of replevin be issued anywhere in the Philippines? A: Under the Resolution of the Supreme Court enbanc dated January 11, 1983, providing for the interim rules and guidelines relative to the implementation of BP 129, a writ of replevin like the one issued in the present case may be served anywhere in the Philippines (Fernandez v. International Corporate Bank now Union Bank of the Philippines, GR No 131283, October 7, 1999). b. REQUISITES

Q: What are the contents of the affidavit? A: Affidavit, alleging: 1. That the applicant is the owner of property claimed, describing it or entitled to its possession; 2. That the property is wrongfully detained by the adverse party, alleging cause of its detention; 3. That the property has not been distrained or taken for tax assessment or fine or under writ of execution/attachment or placed under custodialegis or if seized, that it is exempt or should be released; and 4. The actual market value of the property. Q: What is redelivery bond? A: Bond, which must be double the value of property, to answer for the return of property if adjudged and pay for such sum as he may recover from the applicant (Sec. 2). Q: When is it required? A: It is required that the redelivery bond be filed within the period of 5 days after the taking of the property. The rule is mandatory (Yang vs. Valdez, 177 SCRA 141).

Q: What are the requisites in applying for replevin?

d. SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD PARTY

A:

Q: What are the duties of the sheriff?

1. 2.

Filing of Affidavit by any party before an answer is filed Posting of bond double the value of the property

Q: What are the contents of the affidavit? A: (Sec. 2, Rule 60)

A: 1.

2.

Serve a copy of the court order, application, affidavit and bond upon the adverse party Take the property and retain it in his custody

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 3. 4.

5.

If property is concealed, make a public demand for the delivery of the property If property is not delivered, sheriff must cause the building or enclosure to be broken and take property and keep such in his custody Deliver the property to the party entitled to such upon receiving his fees.

Q: When may a property subject of replevin be returned? A: 1. 2. 3.

Filing of a redelivery bond double the value of the property Plaintiff’s bond is insufficient or defective and is not replaced with a proper bond Property is not delivered to the plaintiff for any reason

rules that are applicable only to specific special civil actions (sec. 3) The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil action special.

2. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL ACTIONS Q: Distinguish ordinary civil action from special civil action. A: Ordinary Civil Action Must be based on a cause of action – act or omission in violation of the rights of another

Q: What are the remedies of a third person whose property is taken by virtue of a replevin? A: 1.

2.

3.

Third party shall file and serve affidavit upon sheriff and applicant stating his entitlement to possession Sheriff shall return the property to third person unless applicant files a bond (same amount as the value of the property) approved by court to indemnify the third person Claim for damages upon said bond must be filed within 120days from date of filing of the bond

Q: Is the Rule on Prior or Contemporaneous Service of Summons observed in Replevin? A: Yes. Although the writ of replevin may be issued ex-parte, it cannot be implemented or enforced if not preceded or accompanied by a service of summons. S. SPECIAL CIVIL ACTIONS 1. NATURE OF SPECIAL CIVIL ACTIONS Q: What are Special Civil Actions? A: Since a civil action in general is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong (Sec. 3 [a], Rule 1, Rules of Court), a special civil action is generally brought or filed for the same purpose. Note: although both types of actions are governed by the rules for ordinary civil actions, there are certain

130

Venue is determined either by the residences of the parties where the action is personal or by the location of the property where the action is real May be filed in Municipal Trial Court or the Regional Trial Court depending upon the jurisdictional amount or nature of the action May be commenced only by the filing of complaint

Special Civil Action Cause of action not necessarily needed Examples: 1. Declaratory relief – action is brought before there is any breach 2. Interpleader – plaintiff files a complaint even if he has not sustained actual transgression of his rights Not necessarily true as in quo warranto, the venue is where the Supreme Court or Court of Appeals if the petition is commenced in any of these courts without taking into consideration the residences of the parties Some actions may be filed only in the Municipal Trial Court, some cannot be commenced therein

May be commenced by the filing of a complaint or petition

Q: What are the special civil actions under the Rules of Court? A: 1. 2. 3.

4. 5. 6. 7.

Interpleader (Rule 62) Declaratory relief and similar remedies (Rule 63) Review of judgments and final orders of the COMELEC and the Commission on Audit (Rule 64) Certiorari, prohibition and mandamus (Rule 65) Quo warranto(Rule 66) Expropriation (Rule 67) Foreclosure of real estate mortgage(Rule 68)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 8. 9.

Partition (Rule 69) Forcible entry and unlawful detainer (Rule 70) 10. Contempt (Rule 71) Q: What are the three special civil actions which are within the jurisdiction of inferior courts? A: 1.

2. 3.

Interpleader, provided that the amount is within the jurisdiction of such inferior court Ejectment suits Contempt

Q: What special civil actions are initiated by complaints and initiated by petitions? A: 1.

2.

by complaint a. interpleader b. expropriation c. foreclosure of real estate mortgage d. partition e. forcible entry and unlawful detainer by petition a. declaratory relief b. review of judgments and final orders or resolutions of the COMELEC / COA c. Certiorari d. Prohibition e. Mandamus f. Quo Warranto g. Contempt 3. JURISDICTION AND VENUE

Q: Who has jurisdiction over special civil actions and where should it be filed? A: Jurisdiction

Venue Interpleader MTC – where the value of Where the plaintiff or the claim or the personal any of the principal property does not exceed plaintiff resides or where P300,000 or P400,000 in Metro Manila or where the the defendant or any of value of the real property the principal defendants resides does not exceed P20,000 or P50,000 in Metro Manila. RTC – if the value exceeds the above amounts or if the subject matter is exclusively within the jurisdiction of the RTC

Note: The venue of special civil actions is governed by the general rules on venue, except as otherwise indicated in the particular rule for said special civil action.

Declaratory Relief RTC Note: It would be error to file the petition with the SC which has no original jurisdiction to entertain a petition for declaratory relief (Tano v. Socrates, G.R. No. 110249, Aug. 14, 1997)

Where the petitioner or the respondent resides

Expropriation Land: where the RTC (incapable of property is located pecuniary estimation) (Barangay San Roque v. Personal property: the Heirs of Pastor, G.R. No. place where the plaintiff 138896, June 20, 2000) or defendant resides Certiorari, Prohibition, Mandamus RTC: if it is directed against a municipal trial court, a corporation, a board, an officer or a person. CA or with the SB, whether or not the same is in aid of the court’s appellate jurisdiction. RTC, CA, SC, Sandiganbayan COMELEC in aid of its appellate jurisdiction (A.M. No. 077-12-SC)

If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or the Rules, the petition shall be filed with and be cognizable only by the Court of Appeals.

In election cases involving an act or omission of MTC /RTC, it shall be filed exclusively with the COMELEC, in aid of its appellate jurisdiction (Sec. 4, Rule 65) Quo Warranto With the SC, CA, or in the RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents RTC, CA, SC, SB in aid of its resides. When the appellate jurisdiction Solicitor General commences the action, it may be brought in a RTC in the City of Manila, in the CA, or in the SC (Sec. 7, Rule 66)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Contempt Where the charge for indirect contempt has been committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. Where such contempt has been committed against a lower court, the charge may be filed with the RTC of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the RTC of such place (Sec. 5, Rule 70) Forcible Entry Metropolitan Trial Courts; Where the property is covered by Rule on located Summary Procedure Unlawful Detainer Metropolitan Trial Courts; Where the property is covered by Rule on located Summary Procedure. Partition 1. Real property – where the property RTC is located (incapable of pecuniary 2. Personal property estimation) – the place where the plaintiff or defendant resides (Sec. 13, Rule 69) Foreclure of REM RTC (incapable of pecuniary estimation) Where the land or any (Barangay San Roque v. part thereof is located Heirs of Pastor, G.R. No. 138896, June 20, 2000)

Q: Distinguish intervention.

between

INTERPLEADER Special civil action, independent and original

Commenced by the filing of a complaint.

Filed by a person who has no interest in the subject matter of the action or if he has an interest, the same is not disputed by the claimants.

The defendants are brought into the action only because they are impleaded as such in the complaint.

INTERVENTION Not an original action but mere ancillary and depends upon the existence of a precious pending action. Commenced by a motion to intervention filed in a pending case attaching thereto the pleading- inintervention. Filed by a person who has a legal interest in any of the following: a. The subject matter of the litigation; b. The success of either of the parties; or c. The success of both of the parties; or d. He may be adversely affected by the disposition or distribution of property in the judgment. If a complaintinintervention is filed, the defendants are already parties to an existing suit not because of the intervention but because of the original suit.

a. REQUISITES FOR INTERPLEADER Q: What are the requisites in order that the remedy of interpleader may be availed of? A: 1. 2. 3.

4. INTERPLEADER 4. Q: What is an interpleader? 5.

132

and

A:

MTC, RTC, CA, SC

A: It is a special civil action filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claims no interest, to compel the claimants to interplead and to litigate their conflicting claims among themselves. (Sec. 1, Rule 62).

interpleader

6.

Plaintiff claims no interest in the subject matter or his claim is not disputed Two or more claimants asserting conflicting claims The subject matter must be one and the same Person in possession or obliged files a complaint. The parties to be interpleaded must make effective claims. Payment of docket and other lawful fees.

Note: Upon filing of complaint, the court shall issue an order requiring conflicting claimants to interplead. (Sec. 2, Rule 62)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE b. WHEN TO FILE

2. 3. 4.

Q: When must an action for interpleader be filed? A: Within a reasonable time after a dispute has arisen without waiting to be sued by claimants and before such is barred from laches. (Feria, Civil Procedure Annotated, Vol. II, p. 425, 2001 ed.) Q: Which court interpleader?

has

jurisdiction

over

an

A: Inferior courts have jurisdiction so long as the amount involved is within their jurisdiction

Cross-claim Third-party complaints Responsive pleadings

Q: May an interpleader be availed of the resolve breach of undertaking? A: No. Such issue should be resolved in an ordinary civil action for specific performance or other relief (Beltran v. PHHC, G.R. No. L-25138, August 28, 1969) 5. DECLARATORY RELIEF AND SIMILAR REMEDIES Q: What is a declaratory relief?

Q: Should there be service of summons in interpleader?

Note: Claimants shall have 15days to file an answer and such answer must be served upon the plaintiff and co-defendants. (Sec. 5, Rule 62).

A: A special civil action brought by a person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation, before breach or violation thereof, asking the court to determine any question of construction or validity arising, and for a declaration of his rights or duties thereunder.

Q: What is the effect of failure of a claimant to file an Answer?

Q: What is the purpose of an action for declaratory relief?

A: Upon motion, the court may declare such claimant in default and render a judgment barring him from any claim in respect to the subject matter. (Sec. 5, Rule 62)

A:

A: Summons and copies of the complaint and order shall be served upon conflicting claimants. (Sec. 3, Rule 62)

1.

Q: May a motion to dismiss be filed? 2. A: Yes. It may be filed by any of the claimant within the time for filing an answer. (Sec. 4, Rule 62) Q: What are the grounds for filing a motion to dismiss?

To determine any question of construction or validity or constitutionality of an instrument, ordinance or regulation Declaration of rights and duties thereunder

Q: Distinguish declaratory judgment from ordinary judgment. A:

A: (Sec. 4, Rule 62) 1. Impropriety of the interpleader action 2. Grounds specified under Rule 16 of the Rules of Court Q: What is the effect of filing a motion to dismiss? A: Period to file an answer is tolled and if the motion is denied, the answer may be filed within the remaining period which shall not be less than 5days from notice of denial. (Sec. 4, Rule 62) Q: What are the other allowed pleadings in an interpleader? A: (Sec. 5, Rule 62) 1. Counterclaim

DECLARATORY JUDGMENT Declaratory judgment stands by itself and no executory process follows Intended to determine any question of construction or validity prior to breach or violation

ORDINARY JUDGMENT Ordinary judgment involves executor or coercive relief Intended to remedy or compensate injuries already suffered

a. WHO MAY FILE THE ACTION Q: Who may file an action for declaratory relief? A: Any person:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Interested under a deed, will, contract or other written instrument Whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation

b. REQUISITES OF ACTION FOR DECLARATORY RELIEF Q: What are the requisites of an action for declaratory relief? A: 1. 2.

Filing of Petition before there is a breach or violation Subject matter is a deed, will, contract, written instrument, statute, executive order, regulation or ordinance

A: Court may motupropio or upon motion refuse based on the following grounds: 1. A decision will not terminate the uncertainty or controversy which gave rise to the action 2. Declaration or construction is not necessary and proper under the circumstances Note: Discretion to refuse does not extend to actions for reformation of an instrument quiet title or remove clouds or to consolidated ownership in a pacto de retro sale. (Regalado, Remedial Law Compendium, Vol. I, p. 769, 2005 ed.)

Q: Can the court exercise discretion in application for declaratory relief? A: 1.

Note: The enumeration of the subject matter is exclusive, hence, an action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief. (Riano, Civil Procedure: A Restatement for the Bar, p. 613, 2009 ed.)

3. 4.

5.

6.

There is justiciable controversy Issue is ripe for judicial determination (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005), i.e. litigation is imminent and inevitable (Tolentino v. Board of Accountancy, G.R. No. L-3062, September 28, 1951) Adequate relief is not available through other means or other forms of action or proceedings (Ollada v. Central Bank, G.R. No. L-11357, May 31, 1962) The controversy is between persons whose interests are adverse;

Q: To whom shall notices be given? A: 1.

2.

Solicitor general if subject matter involves: a. Validity of statute, executive order, regulation or governmental regulation b. Constitutionality of local government ordinance Prosecutor or attorney of the local government unit if subject matter involves validity of local government unit

c. WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION Q: When may a court refuse to make a judicial declaration?

134

2.

In declaratory relief, the court is given the discretion to act or not to act on the petition. It may therefore choose not to construe the instrument sought to be construed or could refrain from declaring the rights of the petitioner under the deed or the law. A refusal of the court to declare rights or construe an instrument is actually the functional equivalent of the dismissal of the petition. On the other hand, the court does not have the discretion to refuse to act with respect to actions described as similar remedies. Thus, in an action for reformation of an instrument, to quiet or to consolidate ownership, the court cannot refuse to render a judgment (Sec. 5, Rule 63).

d. CONVERSION TO ORDINARY ACTION Q: When may an action for declaratory relief be converted into an ordinary action? A: After filing of petition for declaratory relief but before the final termination of the case or rendition of judgment, a breach or violation of an instrument, statute, executive order, regulation or ordinance takes place. (Sec. 6, Rule 63) Q: Distinguish Ordinary Civil Action from Special Civil Action for Declaratory Relief. A: 1. Ordinary civil action – plaintiff alleges that his right has been violated by the defendant; judgment rendered is coercive in character; a writ of execution may be executed against the defeated party.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 2. Special civil action of declaratory relief – an impending violation is sufficient to file a declaratory relief; no execution may be issued; the court merely makes a declaration. Q: Is a third-party complaint proper in an action for declaratory relief? A: No. Because in a third-party complaint, such person seeks to obtain contribution, indemnity, subrogation or other reliefs and a declaratory relief is confined merely to the interpretation of the terms of a contract. (Commission of Customs v. Cloribel, G.R. No. 21036, June 30, 1977). Q: What are the instances wherein a declaratory relief is unavailable? A: 1.

To obtain judicial declaration of citizenship; 2. To establish illegitimate filiation and determine hereditary rights; 3. The subject of the action is a court decision; 4. Actions to resolve political questions; 5. Those determinative of the issues rather than a construction of definite status, rights and relations; 6. Terms of assailed ordinances are not ambiguous or of doubtful meaning; 7. In a petition to seek relief from a moot and academic question; 8. Where the contract or statute on which action is based has been breached; 9. When the petition is based on the happening of a contingent event; 10. When the petitioner is not the real party in interest; and 11. Where the administrative remedies have not yet been exhausted. e. PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES Q: What are the similar reliefs referred to under Rule 63? A: 1. 2. 3.

Reformation of an instrument Quiet title to real property or to remove clouds Consolidation of ownership (Art. 1607, Civil Code)

(1) REFORMATION OF AN INSTRUMENT Q: What is meant by reformation of instrument?

A: It is not an action brought to reform a contract but to reform the instrument evidencing the contract. It presupposes that there is nothing wrong with the contract itself because there is a meeting of minds between the parties. The contract is to be reformed because despite the meeting of minds of the parties as to the object and cause of the contract, the instrument which is supposed to embody the agreement of the parties does not reflect their true agreement by reason of mistake, inequitable conduct or accident. The action is brought so the true intention of the parties may be expressed in the instrument (Art. 1359, CC). Q: When may an instrument be reformed? A: The instrument may be reformed if it does not express the true intention of the parties because of lack of skill of the person drafting the instrument (Art. 1363, CC). If the parties agree upon the mortgage or pledge of property, but the instrument states that the property is sold absolutely or with a right of repurchase, reformation of the instrument is proper (Art. 1365, CC). Q: What is the remedy if the consent of a party to a contract has been procured by fraud, inequitable conduct, or accident? A: Where the consent of a party to a contract has been procured by fraud, inequitable conduct or accident, and an instrument was executed by the parties in accordance with the contract, what is defective is the contract itself because of vitiation of consent. The remedy is not to bring an action for reformation of the instrument but to file an action for annulment of the contract (Art. 1359, CC). Note: Reformation of the instrument cannot be brought to reform any of the following: 1. Simple donation inter vivos wherein no condition is imposed; 2. Wills; or 3. When the agreement is void (Art. 1666, CC).

(2) CONSOLIDATION OF OWNERSHIP Q: What is the purpose of an action brought to consolidate ownership? A: The action brought to consolidate ownership is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer but for the registration of the property. The lapse of the redemption period without the seller a retro exercising his right of redemption,

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

135

UST GOLDEN NOTES 2011 consolidates ownership or title upon the person of the vendee by operation of law. Art. 1607 requires the filing of the petition to consolidate ownership because the law precludes the registration of the consolidated title without judicial order (Cruz vs. Leis, 327 SCRA 570). Note: The concept of consolidation of ownership under Art. 1607, Civil Code, has its origin in the substantive provisions of the law on sales. Under the law, a contract of sale may be extinguished either by legal redemption (Art. 1619) or conventional redemption (Art. 1601). Legal redemption (retracto legal) is a statutory mandated redemption of a property previously sold. For instance, a co-owner of a property may exercise the right of redemption in case the shares of all the other co-owners or any of them are sold to a third person (Art. 1620). The owners of adjoining lands shall have the right of redemption when a piece of rural land with a size of one hectare or less is alienated (Art. 1621). Conventional redemption (pacto de retro) sale is one that is not mandated by the statute but one which takes place because of the stipulation of the parties to the sale. The period of redemption may be fixed by the parties in which case the period cannot exceed ten (10) years from the date of the contract. In the absence of any agreement, the redemption period shall be four (4) years from the date of the contract (Art. 1606). When the redemption is not made within the period agreed upon, in case the subject matter of the sale is a real property, Art. 1607 provides that the consolidation of ownership in the vendee shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard.

(3) QUIETING OF TITLE TO REAL PROPERTY Q: What is an action for quieting title to real property?

136

A: The plaintiff need not be in possession of the real property before he may bring the action as long as he can show that he has a legal or an equitable title to the property which is the subject matter of the action (Art. 477, Civil Code). 6. REVIEW OF JUDGMENT AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA Q: What is the constitutional basis for the application of Rule 65 under Rule 64? A: Sec. 7, Art. IX-A of the Constitution reads, “unless otherwise provided by the Constitution or by law, any decision, order or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.” The provision was interpreted by the Supreme Court to refer to certiorari under Rule 65 and not appeal by certiorari under Rule 45 (Aratuc vs. COMELEC, 88 SCRA 251; Dario vs. Mison, 176 SCRA 84). To implement the above constitutional provision, the SC promulgated Rule 64. Q: What is the mode of review for judgments and final orders of the COMELEC and COA? A: The petition may be brought by the aggrieved party to the Supreme Court on Certiorari under Rule 65, except otherwise provided. Note: Rule 65 applies to the mode of review under Rule 64.Said mode of review is based on Article IX-A of the 1987 Constitution providing that the proper mode of review is certiorari under Rule 65 to be filed before the Supreme Court.Under R.A. 7902 the Court of Appeals has jurisdiction over all adjudications of the Civil Service Commission.

A: This action is brought to remove a cloud on title to real property or any interest therein. The action contemplates a situation where the instrument or a record is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title to real property. This action is then brought to remove a cloud on title to real property or any interest therein. It may also be brought as a preventive remedy to prevent a cloud from being cast upon title to real property or any interest therein (Art. 476, Civil Code).

Note: The order to comment under Sec. 6, Rule 64 in case the Supreme Court finds the petition sufficient in form and substance is equivalent to summons in ordinary civil action.

Q: Is it required that the plaintiff be in the possession of the property before an action is brought?

Note: While Rule 64 makes reference to the certiorari under Rule 65, the period for the filing of the petition for certiorari assailing the judgment of the COMELEC and COA is shorter than that provided under Rule 65

Q: What is the period for filing certiorari as referred to in Rule 64? A: The petition for certiorari referred to in Rule 64 shall be filed within 30 days from notice of the judgment, final order or resolution of the COMELEC and the COA sought to be reviewed (Sec. 3, Rule 64).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: When may the court issue an order to comment? A: If the SC finds the petition sufficient, respondents will be ordered to file a verified comment within 10days from notice of such order. (Sec. 6, Rule 64) Q: What are basic requirements for the petition? A: The following basic requirements must be complied with: 1. The petition shall be verified and filed in 18 copies; 2. Accompanied by clearly legible duplicate original or certified true copy of the judgment, final order or resolution subject thereof, together with certified true copies of documents relevant and pertinent to the petition; 3. The aggrieved party is named as the petitioner and shall join as respondent the commission concerned and all the persons interested in sustaining the judgment, final order or resolution. 4. The petition shall state the facts with certainty, present clearly the issues involved, set forth the grounds and brief arguments relied upon for review; 5. Petition shall state the specific material dates showing that it was filed within the period fixed by the Rules. 6. The petition shall be accompanied by proof of service of a copy thereof on the commission involved and on the adverse party, and of the timely payment of docket and other lawful fees (Sec. 5, Rule 64) 7. Certification against non forum shopping 8. Petition shall pray for a judgment annulling or modifying the questioned judgment, final order or resolution. Note: The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition (Sec. 5, Rule 64).

a. APPLICATION OF RULE 65 UNDER RULE 64

aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days.

b. DISTINCTION IN THE APPLICATION OF RULE 65 TO JUDGMENTS OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS AND OFFICERS Q: Distinguish the mode of review of judgment, final orders or resolutions of COMELEC and COA from other tribunals, persons and officers. A: Rule 64 for COMELEC and COA Petition is based on questions of law It is a mode of appeal but the petition used is Rule 65 Involves review of judgments, final orders or resolutions of COMELEC and COA Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just The COMELEC and COA shall be public respondents who are impleaded in the action

Q: Distinguish Rule 64 from Rule 65. A: Rule 64 Directed only to the judgments, final orders or resolutions of the COMELEC and COA; Must be filed within 30 days from notice of judgment or resolution If MR is denied, the

Rule 65 Directed to any tribunal, board or officers exercising judicial or quasi-judicial functions; Must be filed within 60 days from notice of judgment or resolution If MR is denied, the

aggrieved party will have another 60 days within which to file the petition counted from the notice of denial.

The filing of MNT or MR, if allowed under the procedural rules of the Commission, shall interrupt period fixed The court is in the exercise of its appellate jurisdiction and power of review

Review of judgment, final orders or resolutions of other tribunals, persons and officer Petition is based on questions of law It is a mode of appeal Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts Filed within 15 days from notice of judgment, final order or resolution appealed from

Stays the judgment or order appealed from

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded

Motion for reconsideration is not required

The court is in the exercise of its appellate jurisdiction and power of review

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Petition for certiorari is to be filed before the SC

Petition for certiorari is to be filed only with the Court of Appeals

Q: What are the requisites for a review under Rule 64?

b. 4. 5. 6.

Certified true copy of material records of the case Statement of material dates Sworn certification against forum shopping Proof of service

A: 1.

Filing of verified petition within 30days from notice of the judgment, final orders or resolutions (Sec. 3, Rule 64)

Q: What are the grounds for the outright dismissal of the petition?

Note: Interlocutory orders must be assailed under Rule 65, not Rule 64

A: (Sec. 6, Rule 64) 1. Petition is not sufficient in form and substance (Sec. 5, Rule 64) 2. Petition was filed for purpose of delay 3. Issue is unsubstantial

2.

Payment of docket and other lawful fees (Sec. 4, Rule 64)

Note: The filing of the petition for certiorari does not stay the execution of the assailed judgment, final order or resolution of the Commission unless SC directs otherwise by the issuance of a temporary restraining order or preliminary injunction. (Sec. 8, Rule 64)

Q: What are the contents of the petition? A: (Sec. 5, Rule 64) 1. Verified petition filed in 18copies joining as respondents the Commission concerned and person/s interested in sustaining the judgment, final order or resolution a quo 2. Statement of facts, issues, grounds for review, arguments and relief prayed for 3. Attachment of: a. Duplicate original or certified true copy of assailed judgment, final order or resolution

Q: Are findings of fact reviewable under Rule 64 using Rule 65? A: The petition under Rule 64 using Rule 65, cannot question the findings of fact of the commission involved where such findings are supported by substantial evidence. Such findings when so supported by the requisite quantum of evidence are final and non- reviewable (Sec 5, Rule 64). Q: What is the effect of filing of a motion for new trial or reconsideration if allowed under the procedural rules of the commission concerned? A: It will interrupt the period for filing the petition and if motion is denied, the petition may be filed within the remaining period which shall not be less than 5days. (Sec. 3, Rule 64)

7. CERTIORARI, PROHIBITION AND MANDAMUS GENERAL MATTERS a. DEFINITIONS AND DICTINCTIONS CERTIORARI PROHIBITION MANDAMUS Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ annulling or modifying the commanding a tribunal, commanding a tribunal, corporation, board proceedings of a tribunal, board or corporation, board or person, or person, to do an act required to be done: officer exercising judicial or quasi- whether exercising judicial, quasi- (a) When he unlawfully neglects the judicial functions when such tribunal, judicial or ministerial functions, to performance of an act which the law board or officer has acted without or desist from further proceedings specifically enjoins as a duty, and there is no in excess of its or his jurisdiction, or when said proceedings are without other plain, speedy and adequate remedy in with grave abuse of discretion or in excess of its jurisdiction, or the ordinary course of law; or amounting to lack or excess of with abuse of its discretion, there (b) When one unlawfully excludes another jurisdiction, there being no appeal or being no appeal or any other plain, from the use and enjoyment of a right or any other plain, speedy and adequate speedy and adequate remedy in the office to which the other is entitled (Sec. 3, remedy in the ordinary course of law ordinary course of law (Sec. 2, Rule Rule 65). (Sec. 1, Rule 65). 65). Directed against a person exercising to Directed against a person exercising Directed against a person exercising judicial or quasi-judicial functions judicial or quasi-judicial functions, ministerial duties or ministerial functions

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE To correct an act performed by respondent Purpose is to annul or modify the proceedings Person or entity must have acted without or in excess of jurisdiction, or with grave abuse of discretion

To prevent the commission of an To compel performance of an act act Purpose is to stop the proceedings Purpose is to compel performance of the act required and to collect damages Person or entity must have acted Person must have neglected a ministerial without or in excess of jurisdiction, duty or excluded another from a right or or with grave abuse of discretion office

Extends to discretionary acts

Extends to discretionary and ministerial acts

Only against a respondent exercising judicial or quasi-judicial functions

Only for ministerial acts

Against respondents who exercise judicial and/or non-judicial functions

Q: When does the court acquire jurisdiction over the person of the respondent in original actions for certiorari, prohibition and mandamus? A:

2. 1.

2.

If the action is filed with the RTC – Follow the rules on ordinary civil actions. Jurisdiction is acquired by the service of summons to the respondent or by his voluntary appearance in court. If the action is filed with the CA or the SC – The court acquires jurisdiction over the respondents with the service on them of its orders indicating its initial action on the petition or by voluntary submission to such jurisdiction.

3.

4.

CERTIORARI Q: What is certiorari? A: A writ issued by a superior court to an inferior court, board or officer exercising judicial or quasijudicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law. Note: An original action for certiorari, prohibition, and mandamus is an independent action. As such, it does not interrupt the course of the principal. Note: A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected by appeal (Microsoft Corp. vs. Best Deal Computer Center Corp., GR 148029, Sept. 24, 2002; Estrera vs. CA, GR 154235, Aug. 16, 2006).

Q: Define the following. A: 1.

Judicial function – is where the tribunal or person has the power to determine what

5.

the law is, what the rights of the parties are, and undertakes to determine these questions and adjudicate upon the rights of the parties. Without jurisdiction – is where the respondent does not have the legal power to determine the case. Excess of jurisdiction – is where the respondent, being clothed with the power to determine the case, oversteps his authority as determined by law. Grave abuse of discretion – is where the respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. Plain, speedy and adequate remedy – is one which promptly relieves the petitioner from the injurious effects of the judgment and the acts of the lower court or agency.

Q: Which court has jurisdiction over petitions for certiorari? A: The courts have concurrent jurisdiction, however, petitions are subject to the rule on hierarchy of courts.

Q: Does the filing of a petition for certiorari interrupt the running of the reglamentary period? A: No. The rule is the same for prohibition and mandamus since the remedies under Rule 65 are independent actions.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: Distinguish certiorari under Rule 65 and certiorari under Rule 45.

Rule 45 GR: Findings of fact of CA are conclusive

principal case. It is necessary therefore, to avail of either a temporary restraining order or a writ of preliminary injunction to be issued by a higher court against the public respondent so the latter may, during the pendency of the petition, be enjoined from further proceeding with the case (sec 7, Rule 65).

Involves question of law

Q: Are the remedies of appeal and certiorari exclusive?

A: Rule 65 Findings of fact of Court of Appeals are not conclusive or binding upon SC Involves question of jurisdiction Mode of appeal Directed against an interlocutory order of a court or where there is no appeal or any other plain, speedy or adequate remedy Filed not later than 60 days from notice of judgment, order or resolution appealed from Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding The judge, court, quasijudicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action Motion for reconsideration or for new trial is required. If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 0203-SC) Court exercises original jurisdiction

Filed with the RTC, CA, Sandiganbayan or COMELEC

Mode of review Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts Filed within 15 days from notice of judgment, final order or resolution appealed from Stays the judgment or order appealed from

The appellant and the appellee are the original parties to the action, and the lower court or quasijudicial agency is not impleaded Motion reconsideration required

is

for not

GR: Where the proper remedy is appeal, the action for certiorari will not be entertained. Certiorari is not a remedy for errors of judgment. Errors of judgment are correctible by appeal; errors of jurisdiction are reviewable by certiorari. XPN: A petition for certiorari may be allowed despite the availability of the remedy of appeal when: 1. Appeal does not constitute a speedy and adequate remedy; 2. Orders were issued either in excess of or without jurisdiction; 3. For certain special considerations as for public policy or public welfare; 4. Order is a patent nullity; 5. Decision in the certiorari case will avoid future litigation; or 6. In criminal actions, the court rejects rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy (Regalado, Remedial Law Compendium, Vol. I, p. 783, 2007 ed.). Note: When the remedy by appeal had already been lost due to petitioner’s own neglect or error in the choice of remedies, certiorari cannot lie. The two remedies are mutually exclusive (Meralco v. CA, G.R. No. 88396, July 4, 1990).

PROHIBITION The court is in the exercise of its appellate jurisdiction and power of review. Filed with the SC

Q: Will the filing of a petition for certiorari interrupt the course of the principal case? Or is an injunctive relief necessary? A: The filing of a petition for certiorari against the lower court or tribunal or any other public respondent does not interrupt the course of the

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A:

Q: What is prohibition? A: A remedy to prevent inferior courts, corporations, boards or persons from usurping or exercising a jurisdiction or power which they have not been vested by law. Note: It is commenced by a verified petition accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping (Sec. 2, Rule 65).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: Distinction between Prohibition and injunction To perform a positive legal duty and not to undo what has been done

A: INJUNCTION Directed only to the party litigants, without in any manner interfering with the court.

PROHIBITION Directed to court commanding it to from the exercise jurisdiction to which no legal claim.

itself, cease of a it has

Q: What is the function of writ of prohibition? A: It is a preventive remedy. Its function is to restrain the doing of some act about to be done. It is not intended to provide a remedy for acts already accomplished. If the thing be already done, the writ of prohibition cannot undo it (Agustin v. De la Fuente, G.R. No. L-2345, Aug. 31, 1949). MANDAMUS Q: What is mandamus? A: A writ issued in the name of the State, to an inferior tribunal, corporation, board or person, commanding the performance of an act which the law enjoins as a duty resulting from an office, trust or station. Note: It is commenced by the filing of a verified petition accompanied by certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto and a sworn certification of non-forum shopping (Sec. 3, Rule 65).

Q: Distinguish mandamus from quo warranto. A: Mandamus Available when one is unlawfully excluded from the use or enjoyment of an office against a person who is responsible for excluding the petitioner

Quo Warranto Available against the holder of an office, who is the person claiming the office as against petitioner, not necessarily the one who excludes the petitioner

Q: Distinguish mandamus from injunction. A: Mandamus Special civil action Directed against a tribunal, corporation board, or officer Purpose is for tribunal, corporation, board or officer to perform ministerial and legal duty

injunction Ordinary civil action Directed against a litigant

For the defendant either to refrain from an act or to perform not necessarily a legal and

ministerial duty To prevent an act to maintain the status quo between the parties

b. REQUISITES CERTIORARI That the petition is directed against a tribunal, board or officer exercising judicial or quasijudicial functions;

PROHIBITION MANDAMUS The petition is The plaintiff has a directed against a clear legal right to tribunal, the act corporation, demanded; board or person exercising judicial, quasijudicial, or ministerial functions; The tribunal, The tribunal, It must be the board or officer corporation, duty of the has acted board or person defendant to without, or in must have acted perform the act, excess of without or in which is jurisdiction or excess of ministerial and with abuse of jurisdiction or not discretionary, discretion with grave abuse because the same amounting to of discretion is mandated by lack or excess or amounting to lack law; jurisdiction of jurisdiction; There is no There is no The defendant appeal or any appeal or any unlawfully plain, speedy and plain, speedy and neglects the adequate adequate remedy performance of remedy in the in the ordinary the duty enjoined ordinary course course of law. by law; of law. Accompanied by Accompanied by There is no appeal a certified true a certified true or any plain, copy of the copy of the speedy and judgment or judgment or adequate remedy order subject of order subject of in the ordinary the petition, the petition, course of law. copies of all copies of all pleadings and pleadings and documents documents relevant and relevant and pertinent pertinent thereto, thereto, and and sworn sworn certification of certification of non-forum non-forum shopping under shopping under Rule 46. Rule 46.

Q: What are the requisites of a valid certiorari? A: 1. 2.

There must be a controversy; Respondent is exercising judicial or quasijudicial functions;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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4.

Respondents acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; and There must be no appeal or other plain, speedy and adequate remedy. (Sec. 1, Rule 65)

1. 2. 3. 4.

Summary procedure Writ of Amparo Writ of Habeas Data Small claims cases (Riano, Civil Procedure: A Restatement for the Bar, p. 629, 2009 ed.)

Note: Certiorari is not the remedy for a loss appeal.

Q: When is prohibition issued?

Q: What are the requisites of a valid prohibition?

A:

A: Sec. 2, Rule 65 1. There must be a controversy 2. Respondent is exercising judicial, quasijudicial functions or ministerial functions 3. Respondents acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction 4. There must be no appeal or other plain, speedy and adequate remedy Q: What are the requisites of a valid mandamus? A: Sec. 3, Rule 65 1. There must be a clear legal right or duty 2. The act to be performed must be within the powers of the respondent to perform; 3. The respondent must be exercising a ministerial duty 4. The duty or act to be performed must be existing (a correlative right will be denied if not performed by the respondent) 5. There is no appeal or other plain, speedy and adequate remedy in the ordinary course of law c. WHEN PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS IS PROPER Q: What are the grounds for the filing of a petition for certiorari? A: That a tribunal, board or officer exercising judicial or quasi-judicial functions acted: 1. Without or in excess of jurisdiction 2. In grave abuse of discretion amounting to lack or excess of jurisdiction Note: It is commenced by the filing of a verified petition accompanied by certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto and a sworn certification of non-forum shopping. (Sec. 1, Rule 65).

Q: When is certiorari under Rule 65 unavailable?

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A:

GR: Prohibition does not ordinarily lie to restrain an act which is already fait accompli. XPN: It will lie to prevent the creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the commission of such illegality. (Tan v. COMELEC, G.R. No. 73155, July 11, 1986) Note: Prohibition and not mandamus, is the remedy where a motion to dismiss is wrongfully denied (Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30, 1949)

Q: What are the grounds for mandamus? A: 1.

2.

When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; or When any tribunal, corporation, board, officer or person unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled (Sec. 3)

Q: Will mandamus issue despite the availability of administrative remedies? A: GR: Mandamus will not issue when administrative remedies are still available.

XPN: 1. If the party is in estoppel (Vda. de Tan v. Veterans Backpay Commission, G.R. No. L12944, Mar. 30, 1959); or 2. Only questions of law are raised. (Madrigal v. Lecaroz, G.R. No. L-46218, Oct. 23, 1990) Q: May mandamus be used to compel a discretionary duty?

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE A: Mandamus is only applicable to a ministerial duty. However, mandamus can be used to the extent of requiring the performance of a discretionary duty to act but not to require performance of such duty in a particular manner. Q: May the CA award damages in mandamus proceedings? A: Yes. The CA in resolving a petition for mandamus is authorized to award civil damages in the same petition (Vital-Gozon v. CA, G.R. No. 101428, Aug. 3 1992) d. INJUNCTIVE RELIEF Q: When is injunctive relief proper? A: The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case (Sec. 7, Rule 65). The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a Temporary Restraining Order (TRO) or a Writ of Preliminary Injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge (AM 07-7-12-SC, Dec. 12, 2007). e. CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI; PROHIBITION AND MANDAMUS DISTINGUISHED FROM INJUNCTION; WHEN AND WHERE TO FILE PETITION Q: Distinguish certiorari from appeal by certiorari. Certiorari as a Mode of Appeal (Rule 45) Called petition for review on certiorari, is a mode of appeal, which is but a continuation of the appellate process over the original case; Seeks to review final judgments or final orders;

Certiorari as a Special Civil Action (Rule 65) A special civil action that is an original action and not a mode of appeal, and not a part of the appellate process but an independent action. May be directed against an interlocutory order of the court or where not appeal or plain or speedy remedy available in the ordinary course of law

Raises only questions of law;

Raises questions of jurisdiction because a tribunal, board or officer exercising judicial or quasijudicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; Filed within 15 days from Filed not later than 60 days notice of judgment or final from notice of judgment, order appealed from, or of order or resolution sought the denial of petitioner’s to be assailed and in case a motion for reconsideration motion for reconsideration or new trial; or new trial is timely filed, whether such motion is required or not, the 60 day period is counted from notice of denial of said motion; Extension of 30 days may Extension no longer be granted for justifiable allowed; reasons Does not require a prior Motion for motion for Reconsideration is a reconsideration; condition precedent, subject to exceptions Stays the judgment Does not stay the appealed from; judgment or order subject of the petition unless enjoined or restrained; Parties are the original The tribunal, board, officer parties with the appealing exercising judicial or quasiparty as the petitioner and judicial functions is the adverse party as the impleaded as respondent respondent without impleading the lower court or its judge; Filed with only the May be filed with the Supreme Court Supreme Court, Court of Appeals, Sandiganbayan, or Regional Trial Court SC may deny the decision motupropio on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. Note: The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. The antithetic character of appeal and certiorari has been generally recognized and observed save only on those rare instances when appeal is satisfactorily shown to be an inadequate remedy. Thus, a petitioner must show valid reasons why the issues raised in his petition for certiorari could not have been raised on

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 appeal (Banco Filipino Savings and Mortgage Bank vs.

CA, 334 SCRA 305).

Q: Distinguish prohibition and mandamus from injunction. A: Prohibition Mandamus Injunction Prohibition is an extraordinary writ Mandamus is an extraordinary writ Main action for injunction seeks to commanding a tribunal, corporation, commanding a tribunal, corporation, enjoin the defendant from the board or person, whether exercising board or person, to do an act required to commission or continuance of a judicial, quasi-judicial or ministerial be done: specific act, or to compel a particular functions, to desist from further (a) When he unlawfully neglects the act in violation of the rights of the proceedings when said proceedings are performance of an act which the law applicant. Preliminary injunction is a without or in excess of its jurisdiction, or specifically enjoins as a duty, and there is provisional remedy to preserve the with abuse of its discretion, there being no other plain, speedy and adequate status quo and prevent future wrongs no appeal or any other plain, speedy and remedy in the ordinary course of law; or in order to preserve and protect adequate remedy in the ordinary course (b) When one unlawfully excludes certain interests or rights during the of law (Sec. 2, Rule 65). another from the use and enjoyment of pendency of an action. a right or office to which the other is entitled (Sec. 3, Rule 65). Special civil action Special civil action Ordinary civil action To prevent an encroachment, excess, To compel the performance of a For the defendant either to refrain usurpation or assumption of jurisdiction; ministerial and legal duty; from an act or to perform not necessarily a legal and ministerial duty; May be directed against entities May be directed against judicial and non- Directed against a party exercising judicial or quasi-judicial, or judicial entities ministerial functions Extends to discretionary functions Extends only to ministerial functions Does not necessarily extend to ministerial, discretionary or legal functions; Always the main action Always the main action May be the main action or just a provisional remedy May be brought in the Supreme Court, May be brought in the Supreme Court, May be brought in the Regional Trial Court of Appeals, Sandiganbayan, or in Court of Appeals, Sandiganbayan, or in Court which has jurisdiction over the the Regional Trial Court which has the Regional Trial Court which has territorial area where respondent jurisdiction over the territorial area jurisdiction over the territorial area resides. where respondent resides. where respondent resides.

f. EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION BEFORE FILING PETITION Q: Is it an absolute rule that before recourse to certiorari is taken a motion for reconsideration must be filed?

3.

A: GR: Petition for certiorari will not be entertained unless the public respondent has been given first the opportunity through a motion for reconsideration to correct the error being imputed to him. XPNs: A prior motion for reconsideration is not necessary to entertain a petition for certiorari where: 1. Order is a patent nullity, as where the court a quo has no jurisdiction; 2. Questions raised in the certiorari proceedings have been duly raised and

144

4. 5. 6.

7. 8.

passed upon by the lower court, or are the same as those raised and passed upon in the lower court; Urgent necessity for the resolution of the question, and any further delay would prejudice the interests of the Government or of the petitioner, or the subject matter of the action is perishable; Under the circumstances, a motion for reconsideration would be useless; Petitioner was deprived of due process and there is extreme urgency for relief; In a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; Proceedings in the lower court are a nullity for lack of due process; Proceedings were ex parte or in which the petitioner had no opportunity to object; and

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE 9.

Issue raised is one purely of law or where public interest is involved.

without merit, prosecuted manifestly for delay, or raises questions which are too unsubstantial to require consideration?

g. RELIEFS PETITIONER IS ENTITLED TO Q: What are the reliefs a petitioner is entitled to with this action? A: The primary relief will be the annulment or modification of the judgment, order, or resolution or proceeding subject of the petition. It may also include such other Incidental reliefs as law and justice may require (sec 1, Rule 65) The court may also award damages in its judgment and the execution of the award for damages or costs shall follow the procedure in sec 1 of rule 39 (sec 9, rule 65). h. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES Q: What is the rule on acts or omissions of the MTC or RTC regarding election cases? A: In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction. (Sec.4, Rule 65, As amended by AM No. 07-7-12-SC, Dec. 12, 2007) i. WHERE TO FILE PETITION Q: When and where to file petition? A: 1. Supreme Court- Subject to the doctrine of hierarchy of courts and only when compelling reasons exist for not filing the same with the lower courts. 2. Court of Appeals only- If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or rules. 3. Court of Appeals and Sandiganbayan- Whether or not in aid of appellate jurisdiction. 4. Regional Trial Court- If the petition relates to an act or an omission of an MTC, corporation, board, officer or person. 5. COMELEC- In election cases involving an act or an omission of an MTC or RTC As amended by AM No. 07-7-12-SC, Dec. 12, 2007. j. EFFECTS OF FILING OF AN UNMERITORIOUS PETITION Q: What is the effect of a petition for certiorari, prohibition or mandamus which is patently

A: The court may dismiss the petition. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B. The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari (Sec. 8, as amended by A.M. No. 07-7-12-SC). 8. QUO WARRANTO Q: What is quo warranto? A: A proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position, office or franchise. Note: It is commenced by a verified petition brought in the name of the Republic of the Philippines or in the name of the person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another. (Sec. 1)

Q: What are the classifications of quo warranto proceedings? A: 1.

Mandatory – brought by the Solicitor General or Public prosecutor when: a. directed by the President; b. upon complaint or when he has reason to believe that the cases for quo warranto can be established by proof (Sec. 2) c. at the request and upon the relation if another person (ex relatione), but leave of court must first be obtained. (Sec. 3)

2.

Discretionary – brought by the Solicitor General or a public prosecutor at the request and upon the relation of another person, provided there must be: a. leave of court b. at the request and upon the relation of another person c. indemnity bond (Sec. 3)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Distinguish quo warranto in elective office from an appointive office. A: Elective Office Issue: eligibility of the respondent Occupant declared ineligible/disloyal will be unseated but petitioner will not be declared the rightful occupant of the office.

Appointive Office Issue: validity of the appointment Court will oust the person illegally appointed and will order the seating of the person who was legally appointed and entitled to the office.

a. DISTINCTION FROM QUO WARRANTO UNDER OMNIBUS ELECTION CODE

protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25, 1929).

b. WHEN GOVERNMENT COMMENCE AN ACTION AGAINST INDIVIDUALS c. WHEN INDIVIDUAL MAY COMMENCE AN ACTION Q: Who commences the action? A: 1.

2.

Q: Distinguish quo warranto under Rule 66 from quo warranto under Omnibus Election Code. A: Quo Warranto Under Rule 66 Prerogative writ by which the government can call upon any person to show by what title he holds a public office or exercises a public franchise. Grounds: 1. usurpation 2. forfeiture 3. illegal association Presupposes that the respondent is already actually holding office and action must be commenced within 1 year from cause of ouster or from the time the right of petitioner to hold office arose. The petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds. Person adjudged entitled to the office may bring a separate action against the respondent to recover damages.

Quo Warranto In Electoral Proceedings To contest the right of an elected public officer to hold public office. Grounds: ineligibility or disqualification to hold the office

Petition must be filed within 10 days from the proclamation of the candidate.

May be filed by any voter even if he is not entitled to the office. Actual or compensatory damages are recoverable in quo warranto proceedings under the Omnibus Election Code.

Note: If the dispute is as to the counting of votes or on matters connected with the conduct of the election, quo warranto is not the proper remedy but an election

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3.

The solicitor general or public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the proceding section can be established by proof. (mandatory quo warranto) The Solicitor General or a public prosecutor may, with the permission of court, bring an action at the request and upo n the relation of another person. (discretionary quo warranto) A person claiming to be entitled to a public office or position or unlawfully held or exercised by anoher may also bring action, in his own name.

Q: Against whom a quo warranto may be filed? A: The action must be filed against: 1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; 2. A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; and 3. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act (Sec. 1, Rule 66). Note: Actions of quo warranto against corporations now fall under the jurisdiction of the RTC (Sec. 5.2, Securities Regulations Code).

Q: A group of businessmen formed an association in Cebu City calling itself Cars Co. to distribute/sell cars in said city. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. The Solicitor General filed before the RTC in Manila a verified petition for quo warranto questioning and seeking to stop the operations of Cars Co. The latter filed a motion to dismiss the petition on the ground of improper venue claiming that its main office and operations are in Cebu City and not in

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Manila. Is the contention of Cars Co. correct? Why?

Q: What are expropriation?

A: No. As expressly provided in the Rules, when the Solicitor General commences the action for quo warranto, it may be brought in a Regional Trial Court in the City of Manila, as in the case, in the CA or in the SC (Sec. 7, Rule 66). (2001 Bar Question)

A: 1. 2. 3.

the

requisites

of

a

valid

Due process of law Payment of just compensation Taking must be for public use

Q: What is the power of eminent domain? d. JUDGMENT IN QUO WARRANTO ACTION Q: What is the effect of a judgment in Quo Warranto case? A; When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of the parties to the action as justice requires (Sec. 9, Rule 66). e. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE Q: What are the rights of persons adjudged to be entitled to the office? A: if judgment be rendered in favor of the person averred in the complaint to be entitled to the public office, he may, after taking the oath of office and executing any official bond required by law: 1. take upon himself the execution of the office; 2. may immediately thereafter demand all the books and papers in the respondent’s custody or control appertaining to the office to which the judgment relates; and 3. may bring an action against the respondent to recover damages sustained by such persons by reason of usurpation. Note: when there is a judgment in a quo warranto action finding usurpation to be existent, respondent must be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his cost. Such further judgment may be rendered determining the respective rights in the public office, position, or franchise of all the parties to the action, as justice requires.

9. EXPROPRIATION Q: What is expropriation? A: The procedure for enforcing the right of eminent domain.

A: It is the right of the State to acquire private property for public use upon the payment of just compensation. Q: When is expropriation proper? A: It is proper only when the owner refuses to sell or, if the latter agrees, agreement as to the price cannot be reached. a. MATTERS TO BE ALLEGED IN COMPLAINT FOR EXPROPRIATION Q: Matters to be allege in a complaint for expropriation. A: right and purpose of expropriation, describing the property sought to be expropriated, and joining as defendants all persons owning or claiming to own any part thereof or interest therein (Sec. 1). b. TWO STAGES IN EVERY ACTION FOR EXPROPRIATION Q: What are the two (2) stages in expropriation proceedings? A: 1.

2.

Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the exercise in the context of the facts involved. Determination of just compensation.

Q: City of Iloilo (petitioner) represented by Mayor Treñas filed a complaint for eminent domain against Javellana seeking to expropriate two parcels of land. Mayor Treñas filed a motion for issuance of writ of possession alleging that it had deposited 10% of the amount of compensation of which the court issued. A writ of possession was subsequently issued, and petitioner was able to take physical possession of the properties. After which, the expropriation proceedings remained dormant. 16 years later, Javellana filed an ex parte motion/manifestation, where he alleged that when he sought to withdraw the money, he discovered that no deposit was made. Thus, Javellana filed a complaint for recovery of

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

147

UST GOLDEN NOTES 2011 possession, fixing and recovery of rental and damages. The City of Iloilo argues that Javellana could no longer bring an action for recovery since the subject property was already taken for public use. The trial court in its orders and amended orders maintained that the assailed orders issued by it were interlocutory in character and as such are always subject to modification and revision by the court anytime. Is the order of expropriation final? A: Expropriation proceedings have two stages. The first phase ends with an order of dismissal, or a determination that the property is to be acquired for a public purpose. The second phase consists of the determination of just compensation. Both orders, being final, are appealable. An order of condemnation or dismissal is final, resolving the question of whether or not the plaintiff has properly and legally exercised its power of eminent domain. Once the first order becomes final and no appeal thereto is taken, the authority to expropriate and its public use can no longer be questioned. Thus, it has become final, and the petitioner’s right to expropriate the property for a public use is no longer subject to review. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010). Q: May Congress enact a law providing that a 5,000 square meter lot, a part of the UST compound in Sampaloc, Manila, be expropriated for the construction of a park in honor of former City Mayor ArsenioLacson? As compensation to UST, the City of Manila shall deliver its 5-hectare lot in Sta. Rosa, Laguna originally intended as a residential subdivision for the Manila City Hall employees. Explain. A: Yes, Congress may enact a law to expropriate property but it cannot limit just compensation. The determination of just compensation is a judicial function and Congress may not supplant or prevent the exercise of judicial discretion to determine just compensation. Under Sec. 5, Rule 67 of the Rules of Court, the ascertainment of just compensation requires the evaluation of 3 commissioners. (2006 Bar Question) c. WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY Q: What is the new system of immediate payment of initial compensation? A: RA 8974 provides a modification of sec 2, Rule 67 where the Government is required to make immediate and direct payment to the property

148

owner upon the filing of the complaint to be entitled to a writ of possession. As a relevant standard for initial compensation, the market value for the property as stated in the tax declaration or the current relevant zonal valuation of the Bureau of internal Revenue (BIR), whichever is higher and the value of the improvements and/or structures using the replacement cost method. Note: RA 8974 applies in instances when the national government expropriates property for national government infrastructure projects. Thus, if expropriation is engaged by the national government for purposes other that national infrastructure projects, the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply. The intent of RA 8974 to supersede the system of deposit under Rule 67 with the scheme of immediate payment in cases involving national government infrastructure projects is indeed very clear (MCWD v. J. King and Sons, GR 175983, April 16, 2009)

d. NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION Q: What is the new system of immediate payment of initial just compensation? A: For the acquisition of right-of-way, site or location for any national government infrastructure project through expropriation, upon the filing of the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) 100 percent of the value of the property based on the current relevant zonal valuation of the BIR; and (2) the value of the improvements and/or structures as determined under Sec. 7 of RA 8974 (Sec. 4, RA 8974). e. DEFENSES AND OBJECTIONS Q: What must be filed when defendant has an objection? A: If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Note: if there are no objections, he must file and serve a notice of appearance and manifestation to that effect. And thereafter, shall be entitled to notice of all proceedings.

Q: What is the duty of the court if the defendant waives his defenses or objections? A: If a defendant waives all defenses and objections not so alleged, the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award (Sec. 3, Rule 67). Q: How may appeal be taken from an order of expropriation by the party aggrieved thereby? A: It may be appealed by the defendant by record on appeal. This is an instance when multiple appeals are allowed because they have separate and/or several judgments on different issues e.g. issue on the right to expropriate or issue of just compensation Note: An appeal does not delay the right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use.

overruled or when no party appears to object to or to defend against the expropriation (Sec 4, Rule 67). Note: after the rendition of the order of expropriation, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except upon such terms as the court deems just and equitable (Sec 4, Rule 67)

g. ASCERTAINMENT OF JUST COMPENSATION Q: What is just compensation? A: Just compensation is equivalent to the fair market value of the property at the time of its taking or filing of complaint whichever comes first. It is the fair and full equivalent for the loss sustained by the defendant. Q: What is the formula for the determination of just compensation? A: JC = FMV + CD – CB If CB is more than CD then, JC = FMV

JC – Just compensation FMV – Fair market value CD – Consequential damages CB – Consequential benefits Note:Sentimental value is not computed.

Q: What is the effect if the order of condemnation was reversed? A: The owner shall repossess the property with the right to be indemnified for all damages sustained due to the taking (Sec. 11, Rule 67) Note: The landowner has the option of proving damages either in the same expropriation case or in a separate action instituted for that purpose, as the judgment denying the right of expropriation is not res judicata on the issue of damages arising from such illegal expropriation (Republic v. Baylosis, G.R. No. L-6191, Jan. 31, 1955). f. ORDER OF EXPROPRIATION Q: What is an order of expropriation? A: An order of expropriation (or order of condemnation) will be issued declaring that the plaintiff has a lawful right to take the property for the public use or purpose described in the complaint upon the payment of just compensation in the event the objections of the defendant are

Q: What is the reckoning point for determining just compensation? A:The value of just compensation shall be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. (Sec. 4) GR: When the taking of the property sought to be expropriated coincides with the commencement of the expropriation proceedings, or takes place subsequent to the filing of the complaint for eminent domain, the just compensation should be determined as of the date of the filing of the complaint. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010). Note: Typically, the time of taking is contemporaneous with the time the petition is filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10, 2009)

XPNs: 1. Grave injustice to the property owner

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011

2.

3.

4.

150

Air Transportation Office cannot conveniently invoke the right of eminent domain to take advantage of the ridiculously low value of the property at the time of taking that it arbitrarily chooses to the prejudice of the land owners. (Heirs of Mateo Pidacan&RomanaEigo v. Air Transportation Office, G.R. No. 162779, June 15, 2007) The taking did not have color of legal authority To allow NAPOCOR to use the date it constructed the tunnels as the date of valuation would be grossly unfair. First, it did not enter the land under warrant or color of legal authority or with intent to expropriate the same. It did not bother to notify the owners and wrongly assumed it had the right to dig those tunnels under their property. Secondly, the “improvements” introduced by NAPOCOR, the tunnels, in no way contributed to an increase in the value of the land. The trial court rightly computed the valuation of the property as of 1992, when the owners discovered the construction of the huge underground tunnels beneath their lands and NAPOCOR confirmed the same and started negotiations for their purchase but no agreement could be reached. (NAPOCOR v. Ibrahim, G.R. No. 168732, June 29, 2007) The taking of the property was not initially for expropriation There was no taking of the property in 1985 by Public Estates Authority (PEA) for purposes of expropriation. As shown by the records, PEA filed with the RTC its petition for expropriation on Sept. 22, 2003.The trial court was correct in ordering the Republic, through PEA, upon the filing of its complaint for expropriation, to pay Tan just compensation on the basis of the BIR zonal valuation of the subject property. (Tan v. Republic, G.R. No. 170740, May 25, 2007) The owner will be given undue increment advantages because of the expropriation The value of the property in question was greatly enhanced between the time when the extension of the street was laid out and the date when the condemnation proceedings were filed. The owners of the land have no right to recover damages for this unearned increment resulting from

the construction of the public improvement for which the land was taken. To permit them to do so would be to allow them to recover more than the value of the land at the time when it was taken, which is the true measure of the damages, or just compensation, and would discourage the construction of important public improvements.(Provincial Gov’t of Rizal v. Caro de Araullo, G.R. No. L-36096, Aug. 16, 1933) h. APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT Q: May the court dispense with the assistance of commissioners in the determination of just compensation in expropriation proceedings? A: No. The appointment of commissioners in expropriation proceedings is indispensable. In such cases, trial with the aid of commissioners is a substantial right that may not be done away with capriciously or for no reason at all (MERALCO v. Pineda, G.R. No. L-59791, Feb. 13, 1992). Note: Objections to the order of appointment must be filed within 10 days from service of the order and shall be resolved within 30 days after all the commissioners received the copies of the objections (Sec. 5)

Q: When may the court appoint a commissioner in expropriation proceedings? A: Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court (Sec. 5, Rule 67). Q: When should the commissioner make a report? A: The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire (Sec. 7, Rule 67). i. RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT Q: What are the rights of the plaintiff after payment? A: After payment of just compensation, as determined in the judgment, the plaintiff shall have the right to enter upon the property expropriated and to appropriate the same for the public use or purpose defined in the judgment or to retain possession already previously made in accordance with Sec 2, Rule 67. j. EFFECT OF RECORDING OF JUDGMENT Q: What is the effect of the recording of the judgment? A: When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of he place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose (Sec 13, Rule 69). 10. FORECLOSURE OF REAL ESTATE MORTGAGE Q: What is foreclosure of Real Estate Mortgage (REM)? A: It is the remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding against the property used to secure said obligation. Note: It is commenced by a complaint setting forth the date and due execution of the mortgage; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage (Sec. 1).

a. JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE Q: What is judgment on foreclosure? A: It is the judgment of the court ordering the debtor to pay within a period not less than 90 days nor more than 120 days from the entry of judgment after ascertaining the amount due to the plaintiff (Sec. 2, Rule 68). Q: What is foreclosure sale? A: When the defendant fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under executions (Sec.3, Rule 68). Q: When is the sale of mortgaged property proper and how must it be brought about? A: if the mortgagor fails to pay the sum due within the period (90-120 days) stated by the court in its judgment, it would be good practice for the mortgagee to file a motion for the sale of the mortgaged property because under the Rules, the court shall order the sale of the property only “upon motion of the mortgagee” (sec 3, rule 68) Note: it has been held that the motion for the sale of the mortgaged property is non-litigable and may be made ex parte. After the foreclosure sale has been effected, the mortgagee should file a motion for the confirmation of the sale which requires notice and hearing.

b. SALE OF MORTGAGED PROPERTY Q: What is the effect of confirmation of the sale? A: It shall divest the rights in the property of all the parties to the action and shall vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law (Sec 3, Rule 68) Note: it is said that title vests in the purchaser upon a valid confirmation of the sale and retroacts to the date of sale.

c. DISPOSITION OF PROCEEDS OF SALE Q: How is the disposition of the proceeds of the sale done? A: The proceeds of the sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue after

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 paying off the mortgage debt due, the same shall be paid to junior encumbrances in the order of their priority. If there be any further balance after paying them or if there be no junior encumbrances, the same shall be paid to the mortgagor or any person entitled thereto (Sec. 4)

On January 10, 2003, GAP filed an ex-parte motion with the court for the issuance of a writ of possession to oust Gretchen from the land. It also filed a deficiency claim for P800,000 against Arlene and Gretchen. The deficiency claim was opposed by Arlene and Gretchen.

Q: What claims shall be satisfied from the proceeds of the public sale of the mortgaged property (in order)? A:

1. 2.

Resolve the motion for the issuance of a writ of possession. Resolve the deficiency claim of the bank.

A: 1. 2. 3. 4.

Costs incurred in the sale of property; Claim of the person foreclosing the property; Claims of junior encumbrancers in the order of their priority; Residue goes to the mortgagor or his authorized agent, or any other person entitled to it.

1. In judicial foreclosure by banks such as GAP, the mortgagor or debtor whose real property has been sold on foreclosure has the right to redeem the property within 1 year after the sale (or registration of the sale). However, under Sec. 47 of the General Banking Law of 2000, the purchaser at the auction sale has the right to obtain a writ of possession after the finality of the order confirming sale. The motion for writ of possession, however, cannot be filed ex parte. There must be a notice of hearing. 2. The deficiency claim of the bank may be enforced against the mortgage debtor Arlene, but it cannot be enforced against Gretchen, the owner of the mortgaged property, who did not assume personal liability of the loan. (2003 Bar Question)

d. DEFICIENCY JUDGMENT Q: What is deficiency judgment? A: It is the judgment rendered by the court holding the defendant liable for any unpaid balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy the entire debt. Q: What are the instances when the court cannot render deficiency judgment? A: where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and during the pendency of the proceedings was outside the Philippines, then it is not procedurally feasible. It is by nature in personam and jurisdiction over the person is mandatory. Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by the titled land of her friend Gretchen who, however, did not assume personal liability for the loan. Arlene defaulted and GAP filed an action for judicial foreclosure of the real estate mortgage impleading Arlene and Gretchen as defendants. The court rendered judgment directing Arlene to pay the outstanding account of P1.5 million (principal plus interest) to GAP. No appeal was taken by Arlene. Arlene failed to pay the judgment debt within the period specified in the decision. At the foreclosure sale, the land was sold to GAP for P1.2 million. The sale was confirmed by the court, and the confirmation of the sale was registered with the Registy of Deeds on January 5, 2002.

(1) INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT Q: What are the instances when the courts cannot render deficiency judgment? A: When the: 1. 2.

3.

4.

Case is covered by the Recto Law (Art. 1484, NCC); Mortgagor is a non-resident and is not found in the Philippines, unless there is attachment; Mortgagor dies, the mortgagee may file his claim with the probate court under Sec. 7, Rule 86; and Mortgagee is a third person but not solidarily liable with the debtor.

e. JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL FORECLOSURE Q: Distinguish judicial extrajudicial foreclosure.

from

A: Judicial Foreclosure Governed by Rule 68

152

foreclosure

Extrajudicial Foreclosure Governed by Act 3135

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE There is only an equity of redemption except when the mortgagee is a bank Requires court intervention

Right of redemption exists

No court intervention necessary Mortgagee is given a special power of attorney Mortgagee need not be in the mortgage contract given a special power of to foreclose the attorney. mortgaged property in case of default. Note: A mortgagee may bring a personal action for the amount due, instead of a foreclosure suit, in which case, he will be deemed to have waived his right to proceed against the property in a foreclosure proceeding. (Movido v. RFC, G.R. No. L-11990, May 29, 1959)

f. EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION Q: Distinguish equity of redemption from right of redemption. A: Equity of Redemption Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90-120 days after the entry of judgment or even after the foreclosure sale but prior to confirmation Governed by Rule 68

appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R. No. 73341, Aug. 21, 1987)

11. PARTITION Q: What is partition? A: It is a process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property.It presupposes the existence of a coownership over a property between two or more persons. The rule allowing partition originates from a well-known principle embodied in the Civil Code, that no co-owner shall be obliged to remain the coownership. Because of this rule, he may demand at any time the partition of the property owned in common (Art. 494). Note: It is commenced by a complaint. (Sec.1, Rule 69)

Q: What are the requisites of a valid partition? A:

Right of Redemption Right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property within 1 year from the registration of the Sheriff’s certificate of foreclosure sale Governed by Secs. 29-31, Rule 39

Note: There is no right of redemption in judicial foreclosure sale after the confirmation of sale except those granted by banks or banking institutions in favor of non-judicial persons as provided by the General Banking Act (Government Insurance System v. CFI of Iloilo, G.R. No. 45322, July 5, 1989). In extrajudicial foreclosure, the mortgagor has the right to redeem the property within one year from the registration of the deed of sale. However, Sec. 47 of the General Banking Act provides that in case of extrajudicial foreclosure, juridical persons shall have the right to redeem the property until, but not after, the registration of the certificate of foreclosure sale which in no case shall be more than 3 months after foreclosure, whichever is earlier. The pendency of the action stops the running of the right of redemption. Said right continues after perfection of an appeal until the decision of the

1. 2.

3.

Right to compel the partition; Complaint must state the nature and extent of plaintiff's title and a description of the real estate of which partition is demanded; and All other persons interested in the property must be joined as defendants (Sec. 1, Rule 69)

a. WHO MAY FILE A COMPLAINT; WHO SHOULD BE MADE DEFENDANT Q: Who may file and who should be made defendants? A: The action shall be brought by the person who has a right to compel the partition of real estate (Sec. 1, Rule 69) or of an estate composed of personal property, or both real and personal property (Sec. 13, Rule 69). The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to be partitioned. The defendants are all the co-owners. Q: What is the effect of non-inclusion of a coowner in an action for partition? A: 1.

2.

Before judgment – not a ground for a motion to dismiss. The remedy is to file a motion to include the party. After judgment – makes the judgment therein void because co-owners are indispensable parties.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Note: Creditors or assignees of co-owners may intervene and object to a partition affected without their concurrence. But they cannot impugn a partition already executed unless there has been fraud or in case it was made notwithstanding a formal opposition presented to prevent it. (Sec. 12, Rule 69)

b. MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION Q: What are the matters to be alleged in the complaint for partition? A: The plaintiff shall state in his complaint, the nature and extent of his title, an adequate description of the real estate of which partition is demanded, and shall join as defendants all other persons interested in the property (Sec. 1, Rule 69). He must also include a demand for the accounting of the rents, profits and other income from the property which he may be entitled to. These cannot be demanded in another action because they are parts of the cause of action for partition. They will be barred if not set up in the same action pursuant to the rule against splitting a single cause of action. c. TWO (2) STAGES IN EVERY ACTION FOR PARTITION Q: What are the two aspects of partition proceedings? A: 1. 2.

Existence of co-ownership; and Accounting or how to actually partition the property.

Note: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner and there is co-ownership and that partition is not legally proscribed, the court will issue an order of partition. It directs the parties to partition the property by proper instruments of conveyance, if they agree among themselves. If they do agree, the court shall then confirm the partition so agreed and such is to be recorded in the registry of deeds of the place in which the property is situated (Sec 2, Rule 69). There always exist the possibility that the parties are unable to agree on the partition. Thus, the next stage is the appointment of commissioners.

Q: What are the stages in an action for partition which could be the subject of appeal? A: 1.

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Order determining the propriety of the partition

2. 3.

Judgment as to the fruits and income of the property Judgment of partition (Riano, Civil Procedure: A Restatement for the Bar, p. 596, 2009 ed.)

d. ORDER OF PARTITION AND PARTITION BY AGREEMENT Q: What is an order of partition? A: The order of partition is one that directs the parties or co-owners to partition the property Q: When does the court issue the order of partition? A: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the property, that there is indeed a co-ownership among the parties, and that a partition is not legally proscribed thus may be allowed. If the court so finds that the facts are such that a partition would be in order, and that the plaintiff has a right to demand partition, the court will issue an order of partition. Note: The court shall order the partition of the property among all the parties in interest, if after trial it finds that the plaintiff has the right to partition (Sec. 2, Rule 69). It was held that this order of partition including an order directing an accounting is final and not interlocutory and hence, appealable; thus, revoking previous contrary rulings on the matter. A final order decreeing partition and accounting may be appealed by any party aggrieved thereby.

Q: When is partition by agreement proper? A: The parties may make the partition among themselves by proper instruments of conveyance, if they agree among themselves. If they do agree, the court shall then confirm the partition so agreed upon by all of the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated (Sec. 2, Rule 69). e. PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS, COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT Q: Can the appointment of commissioners be dispensed with in an action for partition? A: The appointment of commissioners is mandatory unless there is an extrajudicial partition between

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE the parties. They have the power to effect the partition but not to inquire into question of ownership or possession Note: if parties cannot agree, the court shall appoint not more than 3 commissioners of competent and disinterested persons to make partition. They shall make full and accurate report to the court of all their proceedings as to the partition. Upon the filing of such report, copies of which shall be served to the clerk of court upon all interested parties with notice that they are allowed 10 days within which to file objections to the findings of the report, if they so desire. The court may upon hearing accept the report and render judgment in accordance with the same, may recommit to the commissioners for further proceedings, or reject the report and render judgment that shall effectuate a fair and just partition.

A; The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable (Sec. 13, Rule 69). h. PRESCRIPTION OF ACTION Q: What is the rule on prescription in an action of partition? A: Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or coheirs as long as there is a recognition of the coownership expressly or impliedly (Art. 494). Also, the action for partition cannot be barred by prescription 12. FORCIBLE ENTRY AND UNLAWFUL DETAINER

f. JUDGMENT AND ITS EFFECTS a. DEFINITIONS AND DISTINCTION Q: What should the judgment contain and its effects? A: The judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action (Sec. 11, Rule 69). a. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. b. If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. g. PARTITION OF PERSONAL PROPERTY Q: What is the rule on partition of personal property?

Q: What is forcible entry? A: It is entry effected by force, intimidation, threat, strategy, or stealth; the action is to recover possession founded upon illegal possession from the beginning. Note: It is commenced by a verified complaint. (Sec. 1)

Q: What are the requisites of a valid forcible entry? A: 1.

2.

A person is deprived of possession of any land or building by force, intimidation, threat, strategy, or stealth; and Action is brought within 1 year from the unlawful deprivation. (Sec. 1)

Q: What are the questions to be resolved in an action for forcible entry? A: 1. 2.

3.

Who has actual possession over the real property; Was the possessor ousted therefrom within one year from the filing of the complaint by force, intimidation, strategy, threat or stealth; and Does the plaintiff ask for the restoration of his possession (Dizon v. Concina, G.R. No. 23756, Dec. 27, 1969)

Q: What is unlawful detainer? A: It is unlawful detention by a person who has acquired possession rightfully, but who detains the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 property after the right to keep possession has ended.

force, intimidation, strategy, threat or stealth.

Note: It is commenced by a verified complaint. (Sec. 1)

No previous demand for the defendant to vacate the premises is necessary.

Q: What are the requisites of a valid unlawful detainer? A: 1.

2.

3.

Possession of any land or building is unlawfully withheld from a lessor, vendor, vendee, or other person after the expiration or termination of the right to hold possession by virtue of any contract express or implied; Action is brought within 1 year after such unlawful deprivation or withholding of possession; and Demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee. (Sec. 1)

Q: Is formal contract a prerequisite in unlawful detainer? A: The existence of a formal contract is not necessary in unlawful detainer. Even if there is no formal contract between the parties, there can still be an unlawful detainer because implied contracts are covered by ejectment proceedings. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner (Peran v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983). Q: Does the amount of rents and damages prayed for in an action for forcible entry and unlawful detainer affect the jurisdiction of the courts? A: No. The amount of rents and damages claimed does not affect jurisdiction of the MTCs because the same are only incidental or accessory to the main action (Lao SengHian v. Lopez, G.R. No. L-1950, May 16, 1949). Note: If only rents or damages are claimed in an ordinary action, the action is personal and the amount claimed determines whether it falls within the jurisdiction of the RTC or the MTC.

Q: Distinguish forcible entry from unlawful detainer. A: Forcible Entry (Detentacion) Possession of the land by the defendant is unlawful from the beginning as he acquires possession by

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Unlawful Detainer (Desahucio) Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to

the possession of the property under his contract with the plaintiff. Demand is jurisdictional if the ground is nonpayment of rentals or failure to comply with the lease contract.

The plaintiff must prove that he was in prior The plaintiff need not physical possession of the have been in prior physical premises until he was possession. deprived thereof by the defendant. The 1 year period is Period is counted from the generally counted from date of last demand or last the date of actual entry on letter of demand. the land.

b. DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION REINVINDICATORIA Q: What are the possessory actions on real property? A: Accion Interdictal Summary action for the recovery of physical possession where the disposses-sion has not lasted for more than 1 year. All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC.

Accion Publiciana

Accion Reinvindicatoria

A plenary action for the recovery of the real right of possession when the dispossession has lasted for more than 1 year.

An action for the recovery of ownership, which necessarily includes the recovery of possession.

RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila.

RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila.

MTC has jurisdiction if the value of the property does not exceed the above amounts.

MTC has jurisdiction if the value of the property does not exceed the above amounts.

Note: Forcible entry and unlawful detainer actions are summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved (Sudaria v..Quiambao, GR No. 164305, November 20, 2007)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE Q: What rule should govern the proceedings of accion interdictal? A: GR: Ejectment cases are summary proceedings intended to provide an expeditious means of protecting actual possession or right to possession of property. XPN: When the decision of the MTC is appealed to the RTC, the applicable rules are those of the latter court (Refugia v. CA, G.R. No. 118284, July 5, 1996). c. JURISDICTION IN ACCION PUBLICIANA AND ACCION REINVINDICATORIA Q: In which court accion publiciana and accion reinvindicatoria filed? A: The actions of forcible entry and unlawful detainer are within the exclusive and original jurisdiction of the MTC, MeTC and MCTC (Sec. 33[2], BP 129; RA 7691) and shall be governed by the rules on summary procedure irrespective of the amount of damages or rental sought to be recovered (Sec. 3, Rule 70). d. WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM THE ACTION MAY BE MAINTAINED Q: Who may institute the action? A: Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs (Sec. 1, Rule 70). e. PLEADINGS ALLOWED Q: What are the pleadings allowed?

A: The only pleadings allowed to be filed are the complaint, compulsory counterclaim and crossclaim pleaded in the answer, and the answers thereto. All pleadings shall be verified (Sec. 4, Rule 70). f. ACTION ON THE COMPLAINT Q: What action will the court make upon receipt of the complaint? A: The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons (Sec. 5, Rule 70). g. WHEN DEMAND IS NECESSARY Q: When is demand necessary? A: Unless there exists a stipulation to the contrary, an unlawful detainer case shall be commenced only after the demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 2). The requirement for a demand implies that the mere failure of the occupant to pay rentals or his failure to comply with the conditions of the lease does not ipso facto render his possession of the premises unlawful. It is the failure to comply with the demand that vests upon the lessor a cause of action. Q: In what form should the demand be made? A: The demand may be in the form of a written notice served upon the person found in the premises. The demand may also be made by posting a written notice on the premises if no person can be found thereon (Sec. 2). It has been ruled, however, that the demand upon a tenant may be oral (Jakihaca vs. Aquino, 181 SCRA 67). Sufficient evidence must be adduced to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses. h. PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION Q: Can the court grant injunction while the case is pending? A: The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof (Sec. 15, Rule 70). i. RESOLVING DEFENSE OF OWNERSHIP Q: In what instances may the court resolve issue of ownership? A: When the defendant raises the issue of ownership, the court may resolve the issue of ownership only under the following conditions: (a) When the issue of possession cannot be resolved without resolving the issue of ownership; and (b) The issue of ownership shall be resolved only to determine the issue of possession (Sec. 16). Note: The assertion by the defendant of ownership over the disputed property does not serve to divest the inferior court of its jurisdiction. The defendant cannot deprive the court of jurisdiction by merely claiming ownership of the property involved (Rural Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742; Perez vs. Cruz, 404 SCRA 487).If the defendant raises the question of ownership and the issue of possession cannot be resolved without deciding the question of ownership, the issue of ownership shall be resolved only to determine the issue of possession (Sec. 3, RA 7691).

j. HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT Q: How is the execution of judgment stayed? A: Defendant must take the following steps to stay the execution of the judgment: 1. Perfect an appeal; 2. File a supersedeas bond to pay for the rents, damages and costs accruing down to the time of the judgment appealed from; and 3. Deposit periodically with the RTC, during the pendency of the appeal, the adjudged amount of rent due under the contract or if there be no contract, the reasonable value of the use and occupation of the premises (Sec. 19, Rule 70).

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k. SUMMARY PROCEDURE; PROHIBITED PLEADINGS Q: What is the nature of an action for forcible entry and unlawful detainer? A: Forcible entry and unlawful detainer actions are

summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved (Tubiano vs. Riazo, 335 SCRA 531). These action shall both fall under the coverage of the Rules of Summary Procedure irrespective of the amount of damages or unpaid rental sought to be recovered (Sec. 3, Rule 70). Q: What are the prohibited pleadings and motion under Rule 70? A: Prohibited pleadings and motions:

1.

Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12; 2. Motion for a bill of particulars; 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third-party complaints; 12. Interventions 13. CONTEMPT Q: What is contempt? A: It is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with, or prejudice litigant or their witnesses during litigation (Halili v. CIR, G.R. No. L-24864, Nov. 19, 1985) Note: It is commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein (Sec. 4).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE a. KINDS OF CONTEMPT

d. e.

Q: What are the kinds of contempt? A: 1. 2.

f.

Direct or indirect, according to the manner of commission. Civil or Criminal, depending on the nature and effect of the contemptuous act.

g.

Q: Distinguish direct from indirect contempt? A: Direct Contempt Committed in the presence of or so near a court. Summary in nature

Indirect Contempt Not committed in the presence of the court. Punished after being charged and heard

If committed against: 1. RTC – fine not exceeding P2,000 or imprisonment not exceeding 10 days or both. 2. MTC – fine not exceeding P200 or imprisonment not exceeding 1 day, or both.

IF COMMITTED AGAINST: 1. RTC – FINE NOT EXCEEDING P30,000

Remedy:Certiorari or prohibition Contempt in facie curiae

Remedy: Appeal (by notice of appeal) Constructive contempt

OR IMPRISONMENT NOT EXCEEDING 6 MONTHS OR BOTH

2.

MTC – fine not exceeding P5,000 or imprisonment not exceeding 1 month or both

Failure to obey a subpoena duly served. Assuming to be an attorney or an officer of the court without authority. Rescue or attempted rescue, of a person or property in the custody of an officer. Any improper conduct tending to degrade the administration of justice (Sec. 3)

Q: Distinguish criminal contempt from civil contempt. A: Criminal Contempt

Civil Contempt

Punitive in nature

Remedial in nature

Purpose is to preserve the court’s authority and to punish disobedience of its orders

Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order for the preservation of the rights of private persons

Intent is necessary

Intent is not necessary

State is the real prosecutor

Instituted by the aggrieved party or his successor or someone who has pecuniary interest in the right to be protected

Proof required is proof beyond reasonable doubt.

Proof required is more than mere preponderance of evidence

If accused is acquitted, there can be no appeal.

If judgment is for respondent, there can be an appeal

Q: What are the grounds of contempt? A: 1.

2.

Direct contempt a. Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings b. Disrespect towards the court c. Offensive personalities toward others; or d. Refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so (Sec. 1) Indirect contempt a. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; b. Abuse or any unlawful interference with the proceedings not constituting direct contempt. c. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court or unauthorized intrusion to any real property after being ejected.

Q: Lawyer Mendoza, counsel for the accused in a criminal case, was cited for direct contempt by Judge Tagle and was sentenced to 10 days imprisonment. Lawyer Mendoza was placed in prison immediately. Lawyer Mendoza manifested his readiness to post a bond and to appeal the order by certiorari to stay its execution but Judge Tagle said that the order is immediately executory. Is Judge Tagle correct? A: No. An order of direct contempt is not immediately executory or enforceable. The contemner must be afforded a reasonable remedy to extricate or purge himself of the contempt. Under Sec. 2, Rule 71, of the Rules of Court, a person adjudged in direct contempt by any court

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him (Tiongco v. Judge Salao, A.M. No. RTJ-06-2009, July 27, 2006). b. PURPOSE AND NATURE OF EACH Q: What is the purpose of the power to contempt? A: The reason for the power to punish for contempt is that respect of the courts guarantees the stability of their institution. Without such guarantee, said institution would be resting on shaky foundation (Cornejovs.Tan, 85 Phil. 772). Q: What is the nature of contempt power? A: The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders and mandates of the courts, and, consequently, to the due administration of justice. Q: What are the dual aspects on the power to punish contempt? A: 1.

2.

Primarily, the proper punishment of the guilty party for his disrespect to the courts; and Secondarily, his compulsory performance of some act or duty required of him by the court and which he refuses to perform.

c. REMEDY AGAINST DIRECT CONTEMPT; PENALTY Q: What is theremedy against direct contempt and its penalty? A: 1.

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The penalty for direct contempt depends upon the court which the act was committed; a. If the act constituting direct contempt was committed against an RTC or a court of equivalent or higher rank, the penalty is a fine not exceeding 2,000 pesos or imprisonment not exceeding 10 days, or both; b. If the act constituting direct contempt was committed against a

2.

lower court, the penalty is a fine not exceeding 200 pesos or imprisonment not exceeding one (1) day, or both (Sec. 1)’; c. If the contempt consists in the refusal or omission to do an act which is yet within the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. A person adjudged in direct contempt may not appeal therefrom. His remedy is a petition for certiorari or prohibition directed against the court which adjudged him in direct contempt (Sec. 2). Pending the resolution of the petition for certiorari or prohibition, the execution of the judgment for direct contempt shall be suspended. The suspension however shall take place only if the person adjudged in contempt files a bond fixed by the court which rendered the judgment. This bond is conditioned upon his performance of the judgment should the petition be decided against him. d. REMEDY AGAINST INDIRECT CONTEMPT; PENALTY

Q: What is theremedy against indirect contempt and its penalty? A: 1. The punishment for indirect contempt depends upon the level of the court against which the act was committed; (a) Where the act was committed against an RTC or a court of equivalent or higher rank, he may be punished by a fine not exceeding 30,000 pesos or imprisonment not exceeding 6 months, or both; (b) Where the act was committed against a lower court, he may be punished by a fine not exceeding 5,000 pesos or imprisonment not exceeding one month, or both. Aside from the applicable penalties, if the contempt consists in the violation of a writ of injunction, TRO or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved (Sec. 7); (c) Where the act was committed against a person or entity exercising quasi-judicial functions, the penalty imposed shall depend upon the provisions of the law which authorizes a penalty for

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CIVIL PROCEDURE contempt against such persons or entities. (2) The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same manner as in criminal cases. The appeal will not however have the effect of suspending the judgment if the person adjudged in contempt does not file a bond in an amount fixed by the court from which the appeal is taken. This bond is conditioned upon his performance of the judgment or final order if the appeal is decided against (Sec. 11). e. HOW CONTEMPT PROCEEDINGS ARE COMMENCED Q: How may an action for indirect contempt be commenced? A: 1.

2.

By order or other formal charge by the court requiring the respondent to show cause why he should not be punished for contempt (motuproprio); or By a verified petition with supporting particulars and certified true copies of the necessary documents and papers (independent action) (Sec. 4).

Note: The first procedure applies only when the indirect contempt is committed against a court or judge possessed and clothed with contempt powers. The second mode applies if the contemptuous act was committed not against a court or a judicial officer with authority to punish contemptuous acts. (Nazareno v. Barnes, G.R. No. L-59072, Apr. 25, 1984) The court does not declare the respondent in default since the proceeding partakes the nature of a criminal prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct. 28, 1982).

Q: What are the procedural requisites before the accused may be punished for indirect contempt? A: 1. 2. 3.

A charge in writing to be filed; An opportunity for the person charged to appear and explain his conduct; and To be heard by himself or counsel. (Regalado v. Go, G.R. No. 167988, Feb. 6, 2007)

NOTE: The rules on contempt under Rule 71 apply to contempt committed against persons or entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities

pursuant to law, Rule 71 shall apply suppletorily (Sec 12, Rule 71) Quasi-judicial bodies that have the power to cite persons for indirect contempt pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases.

Q: May a non-party be held for contempt? A: No, unless he is guilty of conspiracy with any one of the parties in violating the court’s orders (DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30, 1982). Q: Ray, through Atty. Velasco, filed a complaint for quieting of title against Chiz. Chiz, however, interposed the defense that the documents relied upon by Ray and Atty. Velasco were forged and falsified. Finding that the said documents were indeed forged and falsified, Judge Victoria cited Ray and Atty. Velasco for direct contempt and ordered them to serve 10 days of detention at the Municipal Jail. Ray and Atty. Velasco filed a motion for bail and a motion to lift the order of arrest. But they were denied outright by Judge Victoria. Is Judge Victoria correct? A: No. Direct contempt is a contumacious act done facie curiae and may be punished summarily without hearing. Indirect or constructive contempt, in turn, is one perpetrated outside of the sitting of the court. Here the use of falsified and forged documents is a contumacious act. However, it constitutes indirect contempt not direct contempt. The imputed use of a falsified document, more so where the falsity of the document is not apparent on its face, merely constitutes indirect contempt, and as such is subject to such defenses as the accused may raise in the proper proceedings. Thus, following Sec. 3, Rule 71, acontemner may be punished only after a charge in writing has been filed, and an opportunity has been given to the accused to be heard by himself and counsel. Moreover, settled is the rule that a contempt proceeding is not a civil action, but a separate proceeding of a criminal nature in which the court exercises limited jurisdiction. Thus, the modes of procedure and the rules of evidence in contempt proceedings are assimilated as far as practicable to those adapted to criminal prosecutions. Thus, the judge erred in declaring summarily that Ray and Judge Velasco are guilty of direct contempt and ordering their incarceration. He should have conducted a hearing with notice to Ray and Judge

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Velasco (Judge Espaool v. Formoso, G.R. No. 150949, June 21, 2007).

g. WHEN IMPRISONMENT SHALL BE IMPOSED Q: When shall imprisonment be imposed?

f. ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT Q: What are the acts which are deemed punishable as indirect contempt? A:After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: 1.

2.

3.

4.

5.

6. 7.

Misbehavior an officer of a court in the performance of his official duties or in his official transactions; Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule; Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; Assuming to be an attorney or an officer of a court, and acting as such without authority; Failure to obey a subpoena duly served; The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him (Sec. 3).

A: When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. Indefinite incarceration may be resorted to where the attendant circumstances are such that the non-compliance with the court order is an utter disregard of the authority of the court which has then no other recourse but to use its coercive power. When a person or party is legally and validly required by a court to appear before it for a certain purpose, and when that requirement is disobeyed, the only remedy left for the court is to use force to bring the person or party before it. Note: The punishment is imposed for the benefit of a complainant or a party to a suit who has been injured aside from the need to compel performance of the orders or decrees of the court, which the contemnor refuses to obey although able to do so. In effect, it is within the power of the person adjudged guilty of contempt to set himself free.

h. CONTEMPT AGAINST QUASI-JUDICIAL BODIES Q: What is the rule on contempt against quasijudicial bodies? A: The rules on contempt apply to contempt committed against persons or entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law, Rule 71 shall apply suppletorily. Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. The RTC of the place where contempt has been committed shall have jurisdiction over the charges for indirect contempt that may be filed (Sec. 12).

Note: Failure by counsel to inform the court of the death of his client constitutes indirect contempt within the purview of Sec. 3, Rule 71, since it constitutes an improper conduct tending to impede the administration of justice.

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REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES