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: 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.

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)

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.

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.)

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)

B. SUBSTANTIVE LAW AS DISTINGUISHED FROM REMEDIAL LAW

C. RULE-MAKING POWER OF THE SUPREME COURT

Q: Distinguish substantive and remedial law

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

A: Substantive Law

Remedial Law

Part of the law which Refers to the legislation legislation providing means or creates, defines or regulates rights concerning methods whereby causes life, liberty or property or of action may be the powers of agencies or effectuated, wrongs redressed and relief  instrumentalities for the administration of public

affairs. Creates vested rights. Prospective in application.

Cannot be enacted by the Supreme Court.

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

1.

obtained (also known as  Adjective Law).

Does not create vested rights

2.

Retroactive in application The Supreme Court is expressly empowered to

3.

Political Law, p. 281, 2002 ed.)

promulgate procedural rules. (2006 Bar

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

Question)

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

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

ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

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)

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UST GOLDEN NOTES 2011

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

5. COURTS OF GENERAL AND SPECIAL JURISDICTION 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

A: Courts of General  jurisdiction

Courts of Special  jurisdiction

Takes cognizance of all cases , civil or criminal, of a particular nature, or

Takes cognizance of  special jurisdiction for a particular purpose, or are

clothed with special powers for the

courts whose judgment

is conclusive until

Q: Distinguish court from a judge

 judicial power is vested vested May exist without a

Judge Only an officer or member of the court There may be a judge

present judge

without a court

Court Entire body in which the

modified or reversed on direct attack, and who are competent to decide

performance of specified

duties, beyond which they have no authority of 

on their own jurisdiction

any kind

6. CONSTITUTIONAL AND STATUTORY COURTS

Disqualification Disqualification of a  judge does not affect the court

May be disqualified

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

1.

2.

3.

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

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

and deciding cases

previously decided by a lower court

2

repealing the law which created those

Q: Distinguish Courts of law from equity. A: Courts of Law

Any tribunal duly administering administering the laws of the land

Courts of Appellate  jurisdiction

Superior Courts reviewing

Congress by just simply

7. COURTS OF LAW AND EQUITY

A:

Courts exercising  jurisdiction in the first first instance

Created by law e.g. CTA May be abolished by

courts

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

Courts of Original  jurisdiction

Statutory Court

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

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

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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?

Q: How is jurisdiction over the plaintiff acquired?

A: Jurisdiction Over the Subject Jurisdiction Over the Person Matter Determined by the allegations Acquired by the filing of the complaint (Riano, Civil  of the petition in case Procedure: A Restatement for  of the plaintiff or by the Bar, p. 144, 2009 ed.) arrest (Rule 113), by valid service of  XPN: Where the real issues summons or voluntary are evident from the record submission to the of the case, jurisdiction over court’s authority in the subject matter cannot be case of the defendant made to depend on how the (Ibid. p. 158) 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)

A: It is acquired from the moment of filing the

Note: Tenancy

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

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. b. c.

By his voluntary appearance in court and his submission to its authority By service of summons 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?

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 urisdiction of the court XPN: If the

appearance is to object or question the court’s jurisdiction (Ibid. p. 161) Note: In criminal cases,

urisdiction 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.

4

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

JURISDICTION

2. JURISDICTION VERSUS THE EXERCISE OF JURISDICTION

5. DOCTRINE OF PRIMARY JURISDICTION

Q: Distinguish jurisdiction from exercise of  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

A:  Jurisdiction is the authority to hear and decide cases. On the other hand, e xercise 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

(Villaflor v. CA, G.R. No. 95694, Oct. 9, 1997).

Q: What is Doctrine of Ancillary Jurisdiction?

Q: Distinguish error of jurisdiction from error of  judgment.

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

A: 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

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.

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

6. DOCTRINE OF ADHERENCE TO JURISDICTION

 jurisdiction but

Q: What is Doctrine of Adherence to Jurisdiction or Continuity of Jurisdiction?

committed procedural errors in the appreciation

of the facts or the law

A:

(1989 Bar Question)

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.

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

page 4.

XPNs:

Q: What are the instances in which jurisdiction cannot be conferred?

1.

A:

1. 2. 3. 4. 5.

6.

2.

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

3.

4.

(Riano, Civil Procedure: A Restatement for the Bar, p. 143, 11th ed.) . ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Where a subsequent statute expressly prohibits the continued exercise of  jurisdiction; Where the law penalizing an act which is punishable is repealed by a subsequent law; 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; Where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment;

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UST GOLDEN NOTES 2011

5.

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,

6. 7.

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

2007 ed.).

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 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: 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:

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.).

 A Restatement for the Bar, p. 154, 2009 2009 ed.).

XPNS TO THE XPN: Note: Jurisdiction can be questioned even for the first time on appeal (Herrera, Vol. I, p. 91, 2007 ed.)

XPNs: 1.

2.

6

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.

1. 2. 3. 4. 5. 6.

No. L-21450, Apr. 15, 1968).

7.

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

8.

Question raised is purely legal; When the administrative body is in estoppels; When the act complained of is pat ently illegal; When there is need for judicial intervention; When the respondent acted in disregard of due process; When the respondent is the alter-ego of the President, bear the implied or assumed approval of the latter; When irreparable damage will be suffered; When there is no other plain, speedy and adequate remedy;

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

JURISDICTION

9.

When strong public interest is involved; and 10. In quo warranto proceedings (Herrera,

involving the status of the parties or suits involving the property in the Philippines of non-resident defendants.

Vol. I, p. 268, 2007 ed.)

E. JURISDICTION OF COURTS Note: The rule on exhaustion of administrative

remedies and doctrine of primary jurisdiction applies only when the administrative agency exercises quasi judicial or adjudicatory function (Associate

Q: Which court has jurisdiction over the following? A:

Communications and Wireless Services v. Dumalao, G.R. 136762, Nov. 21, 2002).

1.

8. EFFECT OF ESTOPPEL ON OBJECTIONS TO JURISDICTION Q: What is the effect of estoppel by failure to object lack of jurisdiction?

Madrona, G.R. No. 141375, Apr. 30, 2003).

A: The active participation of a party in a case is tantamount to recognition of that court’s

2.

 jurisdiction and will bar a party from impugning the

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.

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

3.

Q: What is jurisdiction over the issues?

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,

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

1992).

D. JURISDICTION OVER THE RES RES OR  OR PROPERTY IN LITIGATION

Note: Where no employer-employee 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 

Q: How is jurisdiction over the res acquired? 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.

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,

(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 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.

the property or thing within the court’s

territorial jurisdiction. Example: suits ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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.

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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.

for reconsideration in accordance with Rule 45 of the Rules of Court (Sec. 27, R.A. 6770).

Twenty-Two Realty Development Corp., G.R. No. 147874, July 17, 2006; Santiago v. Pilar Development Corp., G.R. No. 153628, July 20, 2006).

7.

5.

G.R. No. 167711, Oct. 10, 2008).

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,

 Authority to conduct administrative investigations over local elective officials and to impose preventive suspension over elective provincial or city officials

8. Enforcement of a money claim against a local government unit

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.

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

Dadole, G.R. No. 108072, Dec. 12, 1995).

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

(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  mandamus against the following:

1. 2. 3. 4.

certiorar i, i, prohibition and Petitions for issuance of writs of certiorari , prohibition and mandamus against the following:

Court of Appeals Commission on Elections En Banc Commission on Audit Sandiganbayan

1. 2.

Court of Appeals Sandiganbayan

1.

In all criminal cases involving offenses from which the penalty is reclusion perpetua or life imprisonment and those involving other offenses, which although not so punished arose out of the same occurrence or which may have been committed by the accused on the same occasion

 Appellate

1.

2.

8

Appeal by petition for review on certiorari : a. Appeals from the CA; CA; b. Appeals from the CTA; c. Appeals from RTC exercising exercising original jurisdiction in the following cases: i. If no question of fact is involved involved and the case involves: a) Constitutionality or validity of  treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation b) Legality of tax, impost, impost, assessments, assessments, or toll, toll, or penalty in relation thereto c) Cases in which jurisdiction jurisdiction of lower lower court is is in issue ii. All cases in which only errors or questions of  law are involved.  – filed within 30 days against Special civil action of certiorari  – 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.

Criminal cases in which the death penalty is imposed by the Sandiganbayan

3. Appeals from the CA; 4. Appeals from the Sandiganbayan; 5. Appeals from RTC in which only errors or questions of law are involved.

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

JURISDICTION

Concurrent  With CA

1.

Petitions for issuance of writs of certiorari , prohibition and mandamus against the following: a. NLRC under the Labor Code.

Petitions for issuance of writs of certiorari , prohibition and mandamus against the RTC and 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.

2.

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

Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7,  A.M. No. 09-6-8-SC).

With CA and RTC 

1. 2.

Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari , prohibition and mandamus against the lower courts or other bodies

1. 2.

Petitions for the issuance of writ of amparo Petition for writ of habeas data, where the action involves public data or government office

Petitions for issuance of writs of certiorari , prohibition and mandamus against the lower courts or bodies.

With CA, SB and RTC 

Petitions for the issuance of writ of amparo and writ of habeas data

With RTC 

With Sandiganbayan

Actions affecting ambassadors and other public ministers and consuls

Petitions for mandamus,  prohibition, certiorari, injunctions and ancillary writs in aid of its appellate urisdiction including quo warranto arising or that may arise in in cases filed under EO Nos. 1, 2, 14 and 14-A

Note:

1.

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,

h.

i.

 j. k.

 Art. VIII, 1987 Constitution).

2.

l.

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;

ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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;

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

9

UST GOLDEN NOTES 2011

r. s. t. u. v. w. x. y.

z.

R.A. 8749 - Clean Air Act; R.A. 9003 - Ecological Solid Waste Management Act; R.A. 9072 - National Caves and Cave Resource Management Act; R.A. 9147 - Wildlife Conservation and Protection Act; R.A. 9175 - Chainsaw Act; R.A. 9275 - Clean Water Act; R.A. 9483 - Oil Spill Compensation Act of 2007; 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 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. 09-

b.

c.

d.

6-8-SC).

3.

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

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 Criminal Cases

Civil Cases Exclusive Original 

Actions for annulment of judgments of RTC based upon extrinsic fraud or lack of jurisdiction (Sec. 9 B.P. 129).

1. Actions for annulment of judgments of RTC (Sec. 9 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,

awards of: a. RTC i. In the exercise of its original jurisdiction; ii. In the exercise of its appellate jurisdiction; b. Family Courts; c. RTC on the questions of constitutionality, validity of tax, jurisdiction involving questions of  fact, which should be appealed first to the CA; d. Appeals from RTC in cases appealed from MTCs which are not a matter of right. 2. Appeal from MTC in the exercise of its delegated

10

Judgments or decisions of RTC (except those appealable to the SC or SB): a. exercising its original jurisdiction; b. exercising its appellate jurisdiction; and c. where the imposable penalty is: i. life imprisonment or reclusion perpetua; ii. a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the offense punishable reclusion perpetua  or life imprisonment (Sec. 3, Rule 122). iii. Death (Sec. 10, Rule 122).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

JURISDICTION

3. 4.

 jurisdiction (R.A. 7691). Appeals from Civil Service Commission; Appeals from quasi-judicial agencies under Rule 43; 5. Appeals from the National Commission on Indigenous Peoples (NCIP); and 6. 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 

1. Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari , prohibition 2. 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 

1. Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ of  2. 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 assessments for taxes, fees, charges and penalties where the principal amount of taxes and fees, exclusive of  charges and penalties claimed is less than P1M tried by the proper MTC, MeTC and RTC.

All criminal cases arising from violation of the NIRC of the TCC and other laws, part of laws, or special laws administered by the BIR or the BOC where the principal amount of taxes and fees, exclusive of charges and 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; VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

11

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

With Commissioner of Customs

1. 2.

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 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. 4. SANDIGANBAYAN Criminal Cases

Civil Cases Exclusive Original 

Cases involving violations of: a. EO No. 1 (Creating the PCGG); No. 2 b. EO (Illegal Acquisition and Misappropriations of Ferdinand Marcos, Imelda Marcos their close relatives, subordinates, business associates, dummies, agents or nominees); c. EO No. 14 [Cases involving the ill-gotten wealth of the immediately mentioned persons (Marcos and dummies)]; and d. EO No. 14-A (amendments to EO No. 14) (Sec. 2, R.A. 7975 as amended by R.A. 8294).

1. Violation of R.A. 3019 (Anti-Graft and Corrupt Practices  Act) where one or more of the accused are officials occupying the following positions in t he government, whether in permanent. Acting or interim capacity, at the time of the commission of the offense: a. Officials occupying a position classified as Grade 27 or higher of the Compensation and Position Classification Act of 1989 (R.A. 6758) in the: i. Executive branch including those occupying the position of regional director; and ii. All other national or local officials. 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, habeas corpus, injunction and other ancillary writs in aid of its appellate jurisdiction, including quo warranto arising in cases falling under Executive Order

Petitions for certiorari , prohibition, mandamus, habeas corpus, injunction and other ancillary writs in aid of its appellate jurisdiction, including quo warranto arising in cases 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 of habeas data. Q: Governor Charles of Tarlac was charged with indirect bribery before the Sandiganbayan for

12

Petitions for the issuance of writ of amparo and writ of  habeas data. accepting a car in exchange for the award of a series of contracts for medical supplies. The

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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. 2.

3.

4.

5.

6.

7.

8.

Actions in which the subject of litigation is incapable of pecuniary estimation; Actions involving title to or possession of  real property or any interest therein where the assessed value exceeds P20,000 or P50,000 in Metro Manila, except forcible entry and unlawful detainer; Actions in admiralty and maritime jurisdiction where demand or claim exceeds P300,000 or P400,000 in Metro Manila; Matters of probate, testate or intestate, where gross value of estate exceeds P300,000 or P400,000 in Metro Manila; Cases not within the exclusive  jurisdiction of  any court, tribunal, person or body exercising judicial or quasi-judicial function; Civil actions and special proceedings falling within exclusive original  jurisdiction of  Juvenile and Domestic Relations Court and Court of Agrarian Reforms; Other cases where the demand, exclusive of interest, damages, attorney’s fees, litigation expenses and costs, or value of property in controversy exceeds P300,000 or P400,000 in Metro Manila (Sec. 19, BP 129 as amended by R.A. 7691); and Intra-corporate controversies under Sec. 5.2 of the Securities and Regulation Code.

1. Criminal cases not within exclusive jurisdiction of  any court, tribunal or body (Sec. 20, BP 129) . a. Includes criminal cases where the penalty provided by law exceeds 6 years imprisonment irrespective of the fine (R.A. 7691). b. Includes criminal cases not falling within the exclusive original jurisdiction of  the Sandiganbayan where the imposable penalty is imprisonment more than 6 years and none of  the accused is occupying positions classified as “Grade 27” and higher (Sec. 4, P.D. 1606 as amended by R.A. 8249).

2.

Cases where the only penalty provided by law is a fine exceeding P4,000; 3. Other laws which specifically lodge jurisdiction in the RTC: a. Law on written defamation or libel; b. Decree on Intellectual Property; c. Violations of Dangerous Drugs Act regardless of the imposable penalty except when the offender is under 16 and there are Juvenile and Domestic Relations Court in the province. 4. Cases falling under the Family Courts in areas where there are no Family Courts (Sec.24, B.P. 129). 5. Election offenses (Omnibus election code) even if  committed by an official with salary grade of 27 or higher

Concurrent  With SC, SB and CA

1. 2.

Writ of amparo Writ of habeas data

Petitions for the issuance of writ of amparo and writ of  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  VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

13 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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 j urisdiction 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 c ourts (MTC etc.) in their respective territorial jurisdictions. XPN: Decisions of lower courts in the exercise of delegated jurisdiction.

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,

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.

G.R. No. 138248, Sept. 7, 2005).

6. FAMILY COURTS Civil Cases

Criminal Cases Exclusive Original 

1. 2. 3.

4. 5. 6.

7. 8.

Petitions for guardianship, custody of children, habeas corpus in relation to minor; Petitions for adoption of children and its revocation; Complaints for annulment and declaration of nullity of marriage and those relating to marital status and property relations of spouses or those living together under different status and agreements; and petitions for dissolution of conjugal partnership of gains; Petitions for support and/or acknowledgment; Summary judicial proceedings under the Fam ily Code of the Philippines; Petitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children, the suspension, termination, or restoration of parental authority and other cases cognizable under PD 603, EO 56 (Series of 1986) and other related laws; and Petitions for the constitution of the family home (rendered unnecessary by Art. 153, Fa mily Code) (Sec.

1. 2.

Where one or more of the accused is/are below 18 years of age but not less than 9 years of age; When one or more of the victims is a minor at the time of the commission of the offense (R.A. 8369, Act  establishing the family courts);

3. 4.

5.

Cases against minors cognizable under the Dangerous Drugs Act, as amended; and Violations of R.A. 7610 or the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, as amended by R.A. 7658; and Cases of domestic violence against: a. Women  – involving acts of gender-based violence that result, or likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman’s

b.

5, R.A. 8369).

personhood, integrity and freedom of m ovement; Children  –  which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence and discrimination and all other conditions prejudicial to their development (Sec. 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 property does not exceed P300,000 or, in Metro Manila P400,000; 2. Actions for claim of money where the demand does not 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 ; 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

1. All offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of  fine and regardless of other imposable accessory or other penalties; 2. 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); 3. Where the only penalty provided by law is a fine not exceeding P4,000 (Admin. Circular No. 09-94, June 14, 1994); and 4. Those covered by the Rules on Summary Procedure, i.e.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. M ,M  A  V. F C  V  J  O. P  III, R  R  D. R

JURISDICTION

4. Actions involving title to or possession of real property or

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 off ice, including  –controlled government-owned or 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

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.

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 a ll RTC judges in the province or city (Sec. 35, BP 129).

Application for bail in the absence of all RTC judges in

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 nam e 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 un lawful 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. VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

15 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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.

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

Rules on Summary Procedure

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

(Preamble of P.D. 1508) (1999 Bar Qestion) Where to file

1.

4.

For disputes between residents of  the same barangay: the dispute must be brought for settlement in the said barangay. 2. 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. 3. 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

1. Metropolitan Trial Courts 2. Municipal Trial Courts in Cities 3. Municipal Trial Courts 4. Municipal Circuit Trial Courts

1. Metropolitan Trial Courts 2. Municipal Trial Courts in Cities 3. Municipal Trial Courts 4. 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. Where attorney’s fees are P100,000 exclusive of interest and 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 total amount of plaintiff’s claim payment or reimbursement of  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. 0211-09-SC, Nov. 25, 2005). action, or reserved upon the 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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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 of  a 3. The enforcement 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

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.

than 5,000. (Sec. 408, LGC)

Cases excluded 

1.

2.

3.

4. 5.

6.

Where one party is the government 1. 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 2. 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

Criminal actions are excluded to pursuant certain Constitutional limitations granting the accused in all “the criminal prosecutions right to be heard by himself 

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 and counsel” (Sec. 14[2], Bill  where the offense charged is of Rights). An example is a necessarily related to another case for libel or slander. criminal case subject to the However, the civil aspect of a ordinary procedure. criminal action which seeks of  money recovery 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  amount how little the 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

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

17

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

thereto agree to submit their differences to amicable settlement by an appropriate lupon; 7. Such other classes of disputes which the President of the Philippines may determine in the interest of justice; and 8. 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]).

18

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

III. CIVIL PROCEDURE Court 

A. ACTIONS

Heard by courts of  general jurisdiction

1. MEANING OF ORDINARY CIVIL ACTIONS

Heard by courts of limited  jurisdiction Procedure

Initiated by a pleading and parties respond through an answer

Q: What is an ordinary civil action?

Initiated by a petition and parties respond through an opposition

A: It is a formal demand of one’s legal rights in a 5. REAL ACTIONS AND PERSONAL ACTIONS

court of justice in the manner prescribed by the court or by law. It is go verned by ordinary rules.

Q: Distinguish real actions from personal actions. 2. MEANING OF SPECIAL CIVIL ACTIONS A: Real Action

Q: What is a special civil action?

Personal Action Scope

When it affects title to or possession of a real property, or an interest therein (Sec. 1, rule 4)

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

Personal property is sought to be recovered or where damages for breach of contract are sought

Basis

When it is founded upon the privity of a real estate. That means that realty or interest therein is the subject matter of the action.

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).

Founded on privity of  contract such as damages, claims of  money, etc.

Note: It is important that the

4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS

matter in litigation must also involve any of the following issue: 1. Title to 2. Ownership 3. Possession 4. Partition 5. Foreclosure of mortgage

Q: Distinguish action from special proceeding. A: Special Proceeding

Action Purpose

Civil action: 1. To protect a right 2. Prevent or redress a wrong. Criminal action: Prosecute a person for an act or omission punishable by law (Sec.

To establish a status, a right or a particular fact (Sec. 3 Rule 1). Specific kinds of  special proceedings are found in rule 72 – rule 109 E.g. settlement of estate,

6. Any interest in real property. Venue

Venue of action shall be commenced and tried in the proper court which has  jurisdiction over the area wherein the real property involved, or a portion thereof is situated. (Rule 4,

escheat, guardianship, etc. (Riano, Civil Procedure: A Restatement for the Bar , p.

121, 2009 ed.)

3, Rule 1)  Application

Where a party litigant seeks to recover property from another, his remedy is to file an action.

sec 1)

Where his purpose is to seek the appointment of a guardian for an insane person, his remedy is a special proceeding to establish the fact or status of insanity calling for an appointment of  guardianship. (Herrera, Vol.

Example

An action to recover possession of real property plus damages

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.)

Governing Law 

Special rules supplemented by ordinary rules

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Action for a sum of  money

Note: An action to annul or

I, p. 370, 2007 ed.)

Ordinary rules supplemented by special rules

Venue of action is the place where the plaintiff or any of the principal plaintiffs resides or any of the defendants resides, at the election of the plaintiff (Rule 2 sec 2)

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U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

6. LOCAL AND TRANSITORY ACTIONS Privity of contract 

Q: Distinguish local action from transitory actions.

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

A: Local Action

Transitory Action

Corporation of the Philippines v. Samson, G.R. No. L-30175, Nov. 28, 1975). Example

Venue

Must be brought in a particular plac where the subject property is located, unless there is an agreement to the contrary.

Dependent on the place where the party resides regardless of where the cause of action arose. Subject to Sec. 4, Rule 4

Action to recover real property

Action to recover sum of  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 Nature

A proceeding to subject the property of such persons to the discharge of  the claims assailed.

A proceeding to enforce

A proceeding to determine the state or condition of a thing

An action to impose a responsibility or liability upon a person directly

personal rights and obligations

brought against the person

Action Quasi In Rem

A proceeding to subject the property of  the named defendant or his interests therein to the obligation or lien burdening the property.

Purpose

Deals with the stauts, ownership or liability of a particular property but 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 the whole world

Directed against particular persons

Directed against particular persons

Required jurisdiction Jurisdiction over the person of the defendant is not required.

Jurisdiction over the person of  the defendant is required

Jusrisdiction over the RES is required

Jurisdiction over the person of the defendant is not required as long as  jurisdiction over the res is acquired

through publication in a newspaper

of general circulation. Effect of judgment 

Judgment is binding upon the whole world.

Judgment is binding only upon parties impleaded or their successors-in-interest

Judgment will be binding only upon the litigants, privies, successor in interest but the judgment shall be executed

against a particular property. The RES involve will answer the judgment. Example 1. 2. 3.

Probate proceeding Cadastral proceeding Land registration proceeding

1. Action for specific performance 2. Action for breach of  contract 3. Action for ejectment 4. Action for a sum of money; for damages (Riano, Civil 

1. Action for partition 2. Action to foreclose real estate mortgage attachment

Procedure: A Restatement   for the Bar ,p.130, 2009 ed.)

20

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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

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 

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 legal right of the plaintiff  2. A correlative duty  of  the defendant to respect one’s right

1. There must be a good  cause (existence of  a cause of action) 2. A compliance with all the conditions precedent  to the bringing of the

3. An act or omission of  the defendant in violation of the

3. The action must be instituted by the proper 

plaintiff’s right.

Raised in a motion to dismiss under Rule 16 before a responsive pleading is filed

Determination

Determined only from the allegations of the

pleading and not from evidentiary matters

Q: What is the test of sufficiency of the statement of a cause of action?

action

A: 1.

 party.

It is procedural in

character is the

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)

complaint Effect of Affirmative defense

Affected by affirmative defenses

Note: The truth or falsity of the allegations is beside

(fraud, prescription, estoppel, etc.)

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.)

Note: The rule is “There is no right of action where there is no cause of action”. (Ibid p.4)

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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.)

consequence of the violation of the right of the plaintiff ( Riano, Civil  Procedure: A Restatement   for the Bar , p. 4, 2009 ed.) Basis Basis is the plaintiff’s cause Based on the allegations of the plaintiff in the of action

Not affected by affirmative defenses

Resolved only on the basis of the evidence he has presented in support of his claim

4. TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION

Nature

It is actually predicated on substantive law or on quasi delicts under NCC.

Raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case

21 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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 g round 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)

1. REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES; REPRESENTATIVES AS PARTIES; NECESSARY PARTIES; INDIGENT PARTIES; ALTERNATIVE DEFENDANTS

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)

Q: What are the kinds of parties in a civil action? 6. JOINDER AND MISJOINDER OF CAUSES OF ACTION 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)

22

A:

1. 2. 3. 4. 5. 6.

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: Necessary Parties Indispensable Parties Parties in interest A necessary party is one without whom no final who is not indispensable but determination can be who ought to be joined as a

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

had of an action shall party if complete relief is to be  joined either as be accorded as to those plaintiffs or already parties, or for a or (Sec.7, complete determination defendants. Rule 3) settlement of  the claim subject of the action. (Sec.8, Rule 3) Must be joined under any and all conditions because the court Note: Should be  joined proceed whenever possible, the action cannot without him (Riano, can proceed even in their

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

Civil  Procedure:  A absence because his interest Restatement  or  the is separable from that of  indispensable party (Ibid  Bar , p. 224, 2009 ed.)  p.224)

(Sec.3 Rule 3; Riano, p. 219, 2009 ed.)

be No valid  judgment if  The case may they are not joined determined in court but the  judgment therein will not entire resolve the Note: In the absence of  controversy if  a necessary an indispensable party renders all subsequent party is not joined

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,

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?

any Note: Whenever in pleading in which a claim is

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

asserted a necessary party is not  joined, the pleader shall set forth his name, if known, Civil  Procedure:  A and shall state why he is Restatement  or  the omitted. Should the court find Bar , p. 221, 2009 ed.) 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.

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 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,

the court should apply the “indigency test” under

2001 ed.)

Sec. 21, Rule 3 and use its sound discretion in determining the merits of the prayer for exemption

Note: Parties may be dropped or added by order of the

(Algura v. LGU of Naga, G.R. No. 150135, Oct. 30, 2006).

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)

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: May a party sue the defendants in the alternative? A: Yes. Where the plaintiff is uncertain against who

Q: What does the authority include, if one is authorized as an indigent party?

of several persons he is entitled to relief, he may  join any or  all of them in the alternative, although a

A: An exemption from the payment of:

1. VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Docket fees and other lawful fees 23

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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

24

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

Question)

6. EFFECT OF DEATH OF PARTY LITIGANT

a relation between plaintiff and defendant, or petitioner and respondent. GR: Not a ground for a motu proprio dismissal

It is a ground for a motu  proprio dismissal. (Riano,

XPN: In cases subject to

Civil  Procedure:  A Restatement for the Bar,

summary procedure.

 p. 210, 2009 ed.)

Establishes

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.

Establishes

a relation and the subject matter. between the court

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

 Action for recovery of money arising from contract and the defendant dies before entry of final judgment –  it shall not be

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 

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

vs. Intermediate Appellate Court, 195 SCRA 641)

2. VENUE OF REAL ACTIONS

Question)

Q: What is the venue of real actions?

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  Note:

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).

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.

3. VENUE OF PERSONAL ACTIONS Q: What is the venue of personal actions?

D. VENUE

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).

1. VENUE VERSUS JURISDICTION Q: Distinguish venue from jurisdiction.

4. VENUE OF ACTIONS AGAINST NON-RESIDENTS

A: Venue

Q: Where should the action be commenced and tried if the defendant is a non-resident?

Jurisdiction

The place, or Power of the court to geographical area where hear and decide a case an action is to be filed and tried. May be waived by: Cannot be waived object 1. Failure to through a motion to dismiss or through an affirmative defense. of  2. Stipulation

A:

1.

a.

b.

the

parties. Procedural May be changed by the written agreement of the parties

Substantive

2.

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

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Defendant does not reside and is found in the Philippines:

shall be actions  – commenced and tried in the court of the place where the plaintiff resides Real actions  – shall be commenced and tried in the court of the place where the property is located. Personal

Defendant does not reside and is not  found in the Philippines: 25

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

a.

2. 3. 4. 5. 6.

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. b.

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) .

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

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,

Restatement for the Bar, p. 205, 2009 ed.)

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.

Q: What are examples of words with restrictive meanings?

Note: A pleading alleging the plaintiff’s cause or causes

A:

1.

26

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

b. ANSWER

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.

Q: What is an answer?

No. L-22018, Jan. 17, 1968).

A: It is the pleading where the defendant sets forth his affirmative or negative defenses (Sec. 4 Rule 6).

c. COUNTERCLAIMS

It may likewise be the response to a counterclaim or a cross-claim.

Q: What is counterclaim?

Note: An answer Is a compulsory pleading. This

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.

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.)

118192, Oct. 23, 1997)

(1) NEGATIVE DEFENSES (2) NEGATIVE PREGNANT (3) AFFIRMATIVE DEFENSES

Note: The filing of counterclaim gives rise to

complaints, namely, the one filed by plaintiff by w ay 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)

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).

(1) COMPULSORY COUNTERCLAIM (2) PERMISSIVE COUNTERCLAIM Q: Distinguish the two kinds of counterclaim. A: Permissive Counterclaim

One which arises out of 

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

or is necessarily

Q: What are insufficient denials or denials amounting to an admission?

connected with the transaction or

occurrence that is the subject matter of the

A:

1.

Compulsory Counterclaim

General denial Denial in the form of a negative pregnant

A: A denial which does not qualify as a specific

opposing party’s claim (Sec.7, Rule 6) It does not require for its adjudication the presence of third parties of whom the court

denial. It is conceded to be actually an admission

cannot acquire

(Riano, Civil Procedure: A Restatement for the Bar,  p. 327, 2009 ed.). It is a form of denial which, at the

 jurisdiction Barred if not set up in the action (Sec. 2, Rule 9) Need not be answered; No default Not an initiatory

2.

Q: What is negative pregnant?

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.

pleading.

(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.

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.)

Need not be accompanied by a certification against

Must be accompanied by

forum shopping and

whenever required by law, also a certificate to

certificate to file action

a certification against

forum shopping and

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE

ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

27

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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 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).

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 t o 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,

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.).

Rule 6)

Q: Distinguish a third-party complaint from the rules on bringing in new parties.

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: 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 

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) .

ed.)

Q: What are the tests to determine whether the third-party complaint is in respect of plaintiff’s claim? A:

1.

Whether it arises out of the same transaction on which the plaintiff’s claim

2.

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

f. COMPLAINT-IN-INTERVENTION

defendant for all or part of the plaintiff’s

3.

Q: What is a complaint-in-intervention?

claim against the original defendant; and Whether the third-party defendant may assert any defenses which the third-party

A: An intervention pleading filed for the purpose of asserting a claim against either or all of the original parties.

plaintiff has or may have to the plaintiff’s

claim.

g. REPLY

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  VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Q: Is the filing of a reply necessary? A: GR: No.

29 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

Note: If a party does not file such reply. All the

3. PARTS OF A PLEADING

new matters that were alleged in the answer are deemed controverted (Sec. 10, Rule 6)

a. CAPTION

XPNs:

1.

2.

Q: What should the caption contain?

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. 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

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

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

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)

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

Q: What is the sig nificance 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.)

Cordillera Caraballo Mission, Inc., G.R. No. 155343, Sept. 2, 2005) and non-

compliance therewith does not necessarily render it fatally defective (Sarmiento v. Zaranta, G.R. No. 167471, Feb. 5, 2007)

3. Q: What are the pleadings that s hould be verified? A: The following should be verified:

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

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

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.

Petition for relief from judgment Petition for review from the RTCs to the CA Petition for review from the CTA and quasi-judicial agencies to the CA Appeal by certiorari  from the CA to the SC Petition for annulment of judgments or final orders and resolutions Complaint for injunction Application for appointment of receiver Application for support pendente lite Petition for certiorari   against the  judgments, final orders or resolutions of constitutional commissions Petition for certiorari , prohibition, mandamus, quo warranto Complaint for expropriation Complaint for forcible entry or unlawful detainer Petition for indirect contempt Petition for appointment of general guardian Petition for leave to sell or encumber property of an estate by a guardian Petition for the declaration of competency of a ward Petition for habeas corpus Petition for change of name Petition for voluntary judicial dissolution of a corporation; Petition for correction or cancellation of entries in Civil Registry. (1996 Bar

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?

Question) 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)

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

31 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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,

filing of the certification 14 days before the dismissal of the petition. In Uy v. LandBank, supra, t he 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 non-forum 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.

Rule 7)

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 non-

Q: Is substantial compliance allowed by the courts?

compliance with the certification, filing fees cannot be recovered.

A: GR: No. The rule is that the certificate of non-

Q: What is the effect of non-compliance with the undertakings?

forum shopping must be signed by all the petitioners or plaintiffs in a case and the signing by only one of them is insufficient.

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,

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?

448 Phil 302, 2003)

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

A: GR: No. The lack of certification against forum

A:

shopping is generally not curable by the submission thereof after the filing of the petition.

GR:

XPN: In certain exceptional circumstances,

Note: Invoking it in the later stages of the

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

proceedings or on appeal may result in the dismissal of the action which invokes forum shopping.

Roadway Express, Inc. v. Court of Appeals, et  al.

(264 SCRA 696 [1996]), the Court allowed the

32

It should be raised at the earliest opportunity in a motion to dismiss or a similar pleading.

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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.

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) .

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

d. EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING Q: What is the effect of lawyer’s signature?

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: The signature of counsel constitutes:

1. 2.

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) .

3.

A certificate by him that he has read the pleadings; That to the best of his knowledge, information and belief there is good ground to support it; and That it is not interposed for delay. (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)

(1) REQUIREMENTS OF A CORPORATION EXECUTING THE VERIFICATION/CERTIFICATION OF

NON-FORUM SHOPPING Q: What are Ultimate facts? Q: What is the rule when the plaintiff is a juridical person?

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 

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

of Appeals, 376 SCRA 144)

(1) CONDITION PRECEDENT Q: What is condition precedent?

vs. CA, 388 SCRA 85; Riano, Civil Procedure: A Restatement for the Bar, p. 70, 2009 ed.)

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: 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? VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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 gro und for dismissal

33 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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

Q: How are actionable documents pleaded? A: By setting forth:

(Riano, Civil Procedure: A Restatement for the Bar,  p. 97, 2009 ed.).

1.

(2) FRAUD, MISTAKE, MALICE, INTENT, KNOWLEDGE AND OTHER CONDITION OF THE MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR ACTS

2.

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.).

(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?

The circumstances constituting such may be averred generally (Sec.5, Rule 8). A:

2.

Q: What is the rule in pleading an official document or act? 3.

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

The substance of such document in the pleading and attaching said document thereto as an exhibit Said document verbatim in the pleading

 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?

Q: What is an actionable document? A: Material averments except as to the amount of

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  A:

 for the Bar, p. 101, 2009 ed.) Note: This manner of pleading a document applies

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.)

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)

34

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

(2) WHEN A SPECIFIC DENIAL REQUIRES AN OATH

6. DEFAULT a. DECLARATION OF DEFAULT

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

Q: When is a declaration of default proper? A:

1.

A denial of an actionable document (Sec.

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.)

8, Rule 8)

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

5. EFFECT OF FAILURE TO PLEAD Q: In what situations where declaration of default is proper?

a. FAILURE TO PLEAD DEFENSES AND OBJECTIONS

A: It is proper in 3 situations:

Q: May defenses not pleaded in a motion to dismiss or in the answer still be raised?

1.

A: GR: No, they are deemed waived.

2.

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; Note: It may however, be barred by laches.

3.

Defendant did not file any answer or responsive pleading despite valid service of summons; Defendant filed an answer or responsive pleading but beyond the reglementary period; and 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

Q: What are the effects of an order of default?

2. 3. 4.

Litis pendentia; Res judicata; and

A:

Statute of limitations (Sec. 1, Rule 9)

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) .

3.

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) .

XPN: If the compulsory counterclaim or crossc. RELIEF FROM AN ORDER OF DEFAULT

claim 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).

Q: What are the reliefs from an order of default? A:

1.

 After notice of order and before judgment 

Note: Counterclaims or cross-claims omitted through

–  The defendant must file a verified

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

motion to set aside the order of default upon proper showing that:

11). VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

35 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

a.

b.

His failure to answer was due to fraud, accident, mistake or excusable negligence; and That he has a meritorious defense.

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

[Sec. 3(b), Rule 9] (2000 & 1999 Bar Question)

2.

1. 2.

 After judgment and before judgment becomes final and executory – He may file

3.

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)

3.

4.

 After the judgment becomes final and executory  – he may file a petition for

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?

relief from judgment under Rule 38

A: Every judgment, resolution, order, pleading

(Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992) (2006, 1998 Bar Question)

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)

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.

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.

No. 83888, Feb. 12, 1992)

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 t he 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.

Q: What is service?

XPN: Where the defense is personal to the one

A: It is the act of providing a party with a copy of

who answered, in which case, it will not benefit those who did not answer e.g. forgery.

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)

(1995 Bar Question) e. EXTENT OF RELIEF 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.

36

c. PERIODS OF FILING OF PLEADINGS Q. When should a responsive pleading be filed? A: Periods for Filing an Answer  Answer to an original  complaint 

Within service

15 of 

days after summons,

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

unless a different period is fixed by the court (Sec. 1, Rule 11).

Q: What are the modes of filing?

Defendant is a foreign  private juridical entity  and has a resident  agent 

Within 15 days after service of summons (Sec.6,

A:

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

Within 15 days after service of  summons to said agent or officer (Sec.6,

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)*

d. MANNER OF FILING

in relation to Sec.5[a], Rule 2, A.M. NO. 00-8-10-SC  2000-11-21)

1.

2.

(Sec. 3, Rule 13)

in relation to Sec.5[b], Rule 2, A.M. NO. 00-8-10-SC  2000-11-21)

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.

Within 30 days after receipt of summons by the home office of the foreign private entity

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

3.

14)

Q: How is personal service done?

Not be less than 60 days after notice (Sec. 15, Rule

A: By:

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

1.

Delivering personally a copy to the party or his counsel;

2.

Leaving a copy in counsel’s office with his

3.

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,

Within 10 days from service (Sec. 4, Rule 11) Like an original defendant  – 15, 30, 60 days as the case may be (Sec. 5;

Rule 13).

(2) SERVICE BY MAIL

Regalado, Vol. I, p. 212, 2005 ed.)

Supplemental  complaint 

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

(Sec. 3, Rule 11)

Counterclaim or crossclaim Third (fourth, etc.)  party complaint 

By presenting the original copies thereof, plainly indicated as such, personally to the clerk of court; or By sending them through registered mail

Q: How is service by mail done?

Within 10 days from notice of order admitting the same unless a different period is fixed by the court

A:

1.

(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) VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

37 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

2.

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).

3.

(3) SUBSTITUTED SERVICE Q: How and when is substituted service made?

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).

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,

Service by ordinary mail – upon expiration

Substituted service – at the time of such delivery (Sec. 8, Rule 13).

(7) PROOF OF FILING AND SERVICE Q: What are the proofs of filing? A:

Rule 13).

GR: Filing is proven by its existenc e in the record

of the case. (4) SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS

XPN: If it is not in the r ecord, and:

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

1. 2. 3.

2. 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

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 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

Q: What are the priorities in modes of service and filing?

13)

Q: What are the proofs of service? A: GR: Whenever practicable, the service and filing

shall be done personally.

A:

1.

Proof of personal service:

a. XPN: With respect to papers emanating from

b. c.

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).

b. 3.

Q: When is service deemed complete? A:

1.

Personal service – upon actual delivery.

Proof of service by ordinary mail:

a.

(6) WHEN SERVICE IS DEEMED COMPLETE

Written Admission of the party served; or Official return of the server or Affidavit of the party serving, containing the date, place and manner of service. Affidavit of mailer showing compliance of Sec. 7, Rule 13; and Registry receipt issued by the mailing officer (Sec. 13, Rule 13)

Registered mail:

a. b.

Affidavit; and 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

38

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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)

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)

Q: What is a notice of lis pendens?

c. FORMAL AMENDMENT

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 o f the action.

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

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)

(Sec. 4, Rule 10).

d. AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE

8. AMENDMENT

Q: When may amendment be made to conform to or authorize presentation of evidence?

Q: How are pleadings amended?

A:

A: By:

1. 2.

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)

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).

1.

When issues not raised by the pleadings are tried with the express or implied consent of the parties. Note: Failure to amend does not affect the result of the trial of said issue.

2.

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.

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.

A:

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

Amended Pleading

Supplemental Pleading

Refer to the facts existing at the time of filing of  original pleading Supersedes the original

Refers to facts occurring after the filing of the original pleading.

Merely supplements the original pleading.

A:

1. 2.

May be amended without leave of court before a responsive pleading is filed. Amendment must be appropriately marked.

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)

Always with court

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

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

leave of 

 p. 854,

39 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

2007 ed.)

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

XPN: Special appearance in court to challenge

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

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 ).

Q: What is the nature of summons?

(Riano, p. 423 , 2005 ed.)

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

4. SUBSTITUTED SERVICE Q: When is substituted service of summons proper?

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 a nd 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.  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.,

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.)

G.R. No. 140244, Aug. 29, 2000) 2.  Actions in rem and quasi in rem –  not to

5. CONSTRUCTIVE SERVICE (BY PUBLICATION)

acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process (Gomez v. CA,

Q: Is leave of court required in constructive service of summons?

G.R. No. 127692, Mar. 10, 2004).

A: This service always requires permission of the

2. VOLUNTARY APPEARANCE

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 urisdiction of the court ( Sec. 20, Rule 14) .

40

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

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

a. SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN b. SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE PHILIPPINES

7. SERVICE UPON PRISONERS AND MINORS Q: How is service of summons upon prisoner made?

Q: When is constructive service of summons proper?

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)

A:

1.

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.)

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)

2.

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) .

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 t o when made by a person other than a sheriff or his deputy (Sec 18,

6. EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED

Rule 14).

Q: When is extra-territorial service of summons allowed?

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.

A: It is done through the following:

1.

2.

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.

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 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 VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

41 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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

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:

A motion on the other hand is an application for relief other than a pleading (Sec. 1, Rule 15) .

hearing by the applicant. XPN: Motions which the court may act upon without prejudicing the rights of the adverse party (Sec. 4, Rule 15). e. OMNIBUS MOTION RULE Q: What is the Omnibus Motion Rule? A:

c. CONTENTS AND FORMS OF MOTIONS

GR: All available grounds for objection in

Q: Should a motion be in writing?

attacking a pleading, order, judgment, or proceeding should be invoked at one time; otherwise, they shall be deemed waived (Sec. 8,

A:

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. 2. 3.

the relief sought to be obtained; the ground upon which it is based; and 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)

XPN: The court may dismiss the case motu  proprio based on:

1. 2. 3. 4.

Lack of jurisdiction over the subject matter; Litis pendentia; Res judicata; and 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

Q: May a motion pray for judgment? A:

of the parties. A hearing is required.

GR: No.

Q: What is an ex-parte motion?

XPN: Motion for:

A: It is taken or granted at the instance and for the

1. 2. 3.

 judgment on the pleadings; summary judgment; or Judgment on demurrer to evidence.

d. NOTICE OF HEARING AND HEARING OF MOTIONS

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

A: It is that which does not comply with the rules on

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).

Corp., v. Flojo, G.R. No. 110801, Dec. 8, 1995).

motion and is considered as one filed merely to delay the proceedings (Marikina Development 

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

2.

2. MOTIONS FOR BILL OF PARTICULARS a. PURPOSE AND WHEN APPLIED FOR

3.

Q: What is a bill of particulars and when can it be availed of?

If plaintiff, his compliant will be s tricken 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).

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

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

Bar Question) Note: Its purpose is to aid in the preparation of a

Q: What is the effect of a motion for bill of particulars on the period to file a responsive pleading?

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

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: 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

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.

(Sec. 2, Rule 12).

c. COMPLIANCE WITH THE ORDER AND EFFECT OF NON-COMPLIANCE Q: When must be the compliance be effected?

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?

1.

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

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?

A:

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

2.

(Sec. 4, Rule 12) VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

43 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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,

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.

Rule 16) 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

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.

7.

44

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

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

e. EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN GROUNDS

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

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;

A:

1. 2. 3.

2. Claim or demand has been paid, waived, abandoned, or otherwise extinguished; and 3. Claim is unenforceable under the statute of frauds?

4.

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

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 R ule 16 from motion to dismiss under Rule 33.

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

A:

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.

Rule 16 (Motion to Dismiss)

Rule 33 (Demurrer  to Evidence)

Grounded on preliminary objections May be filed by any defending party against whom a claim the is asserted in action Should be filed within the time for but prior to the filing of the answer

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 If denied, defendant may answers, or else he present evidence. may be declared in If granted , but on appeal

default.

the order of dismissal is reversed, the defendant If  granted, plaintiff  loses his right to present (Riano, Civil  may appeal or if  evidence subsequent case is not Procedure:  A Restatement   for the Bar, p. 399, 2009 ed.) barred, he may re-file the case

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)

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

45 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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 d ismissal 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:

Dismissal upon motion of plaintiff  (Sec. 2, Rule 17)

Dismissal due to fault of  plaintiff (Sec. 3, Rule 17)

After service of the answer or a motion for summary judgment by the adverse party.

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

Matter of evidence. GR: Dismissal is with prejudice

because it has an effect of an adjudication on the merits.

(Sec. 2, Rule 17).

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

GR: It is a dismissal without prejudice,

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,

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

Rule 17).

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

Q: When does the two-dismissal rule apply?

I. PRE-TRIAL

A: It applies when the plaintiff has:

1. 2. 3.

1. CONCEPT OF PRE-TRIAL

Twice dismissed the actions; Based on or including the same claim; and In a court of competent jurisdiction

Q: What is pre-trial?

(Riano, Civil Procedure: A Restatement for the Bar, p. 265, 2009 ed.)

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

Note: The second notice of dismissal will bar the re-

filing 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.)

(Herrera, Vol. I, p. 1074, 2007 ed.).

Q: When is pre-trial conducted?

4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT

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.

Q: What is the effect of dismissal upon a counterclaim, which was already pleaded?

(Sec.1, Rule 18)

A:

1.

2. NATURE AND PURPOSE

If a counterclaim has already been pleaded by the defendant prior to the

Q: What is the nature of pre-trial?

service upon him of the plaintiff’s motion

2.

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

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.

2. 3.

plaintiff’s motion to dismiss.

The dismissal of the complaint does not carry with it the dismissal of the counterclaim. (Riano, Civil Procedure: A

4.

Restatement for the Bar, pp. 266-267, 2009 ed.)

5. 6.

Q: What rule governs the dismissal of counterclaim, cross-claim, or third-party complaint?

7.

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) .

8.

3.

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

9.

Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; Simplification of the issues; Necessity or desirability of amendments to the pleadings; Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; Limitation of the number of witnesses; Advisability of a preliminary reference of issues to a commissioner; Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; Advisability or necessity of suspending the proceedings; and Such other matters as may aid in the prompt disposition of the action. (Sec. 2, Rule 18)

47 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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

6.

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). 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 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

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 pre-trial 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

Q: Distinguish pre-trial in civil cases from pretrial in criminal cases. A: Pre-trial in civil case

Pre-trial in criminal case

Question)

It is set when the plaintiff  moves ex parte to set the case for pre-trial (Sec. 1,

Note: The non-appearance of a party may be excused

Rule 18)

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)

The motion to set the case for pre-trial is made after the last pleading has been served and filed

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. 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?

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

A:

conference” to be signed

1.

2. 3. 4.

48

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;

by both parties and/or counsel. The rule allows either the party or his counsel to sign the minutes (A.M. No. 03-1-

(Sec. 2, Rule 18)

09-SC).

Sanctions for nonappearance in a pre-trial are imposed upon the plaintiff and the

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

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

defendant in a civil case

(Sec. 3, Rule 18)

(Sec. 4, Rule 18).

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

Not specifically required in a criminal case.

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

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. Construction Disputes iii. 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. 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. 2. To achieve speedy and impartial justice and unclog court dockets.

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.

Appellate Court Mediation

1. 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. 2. 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.

9285)” 

Where to File

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 acquiring jurisdiction of the case since mediation is part of the mandatory pre-trial

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 urisdiction 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-conciliator-

early neutral evaluator in a continuing effort to secure a settlement”

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

49 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

Cases Covered 

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. 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; the 2. Special proceedings for 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

1. 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. 2. Special civil actions for certiorari, except those involving pure questions of  law. 3. 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. 4. 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 fine and both such imprisonment.

Reorganization Act of 1980.”

Cases Excluded 

1. Labor disputes under the Labor Code 2. Civil status of persons 3. Validity of a marriage 4. Any ground for legal separation 5. Jurisdiction of courts 6. Future legitime 7. Criminal liability 8. Those which by law cannot be compromised 9. Dispute resolution services provided by

50

1. Civil cases which by law cannot be compromised (Article 2035, New Civil Code); 2. Other criminal cases not covered under paragraphs 3 to 6 above;

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; 3. 4. All cases under Republic Act No. 9262

(Violence against Women and Children); and

Habeas corpus petitions

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

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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

Early Neutral Evaluation

Mini-Trial

Definition

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. resolve 9285, 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 party third (mediator), selected by the disputing parties, facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement regarding a dispute.

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.

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

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

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

He does not render a The assessment is It need decision. The dispute not binding upon confirmed the parties. is left to be settled by courts. the parties themselves.

1 [3], UNCITRAL Model  Law  on Conciliation)

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

It

a structured resolution method in which the merits of a case are before a argued panel comprising of  senior decision with makers or non-binding without the presence assessment by an of  a neutral third person after experienced, which neutral person, the parties seek a with expertise in negotiated the subject or the settlement. substance of  the dispute. 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.

is

dispute

Functions

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

Early

Effect of decision

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

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE C HAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & J OHN HENRY C. MENDOZA VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

not be by the

51 U N I V E R S I T Y O F  S A N T O  T O M A S

UST GOLDEN NOTES 2011

the RTC.

merely suggests a the solution to dispute.

Q: What is the State policy in alternative dispute resolution?

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.

A: The state policy in ADR is to actively promote

9285)

party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements in resolving their disputes.

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 

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)

Constitution) Note: Right to intervene is not an absolute right as it

Q: What is the legal basis of alternative dispute resolution?

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.)

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?

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

1.

There must be a motion for intervention filed before rendition of judgment by the trial court (Sec. 1, Rule 19) ; Note: A motion is necessary because leave of court is required before a person may be allowed to intervene.

2.

The movant must show in his motio n that he has: Legal interest in the matter in a. controversy; Legal interest in the success of either b. of the parties; Legal interest against both parties; or c. So situated as to be adversely d. 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

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) 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.

4.

Intervenor’s rights may not be fully

protected in a separate proceeding A: An  ADR provider   means institutions or persons accredited as mediator, conciliator, arbitrator, neutral evaluator, or any person exercising similar

52

(Mabayo Farms, Inc. vs. CA, GR 140058,  Aug. 1, 2002).

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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: 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.

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.

XPNs:

1.

89909, Sept. 21, 1990). (2000 Bar Question)

Q: What does legal interest mean?

2.

With respect to indispensable parties, intervention may be allowed even on appeal (Falcasantos v. Falcasantos, G.R. No. L-4627, May 13, 1952) ; When the intervenor is the Republic (Lim v. Pacquing, G.R. No. 115044, Jan. 27, 1995);

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

3.

Restatement for the Bar, p. 346, 2009 ed.)

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

2. TIME TO INTERVENE

4.

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)

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: 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

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

19)

of discretion. VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

53 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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: The judge or officer shall examine and study 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

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

A: It shall state the name of the court and the title

bring with him any books, documents, or things under his control (Sec. 1, Rule 21) .

Q: What is subpoena ad testificandum?

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).

A: A process directed to a person requiring him to

Q: What is the rule on subpoena for depositions?

2. SUBPOENA AD TESTIFICANDUM

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

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 Q: Who issues 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?

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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.

Depositions pending action (Rule 23) Depositions before action or pending appeal (Rule 24) 3. Interrogatories to parties (Rule 25) 4. Admission by adverse party (Rule 26) 5. Production or inspection of documents and things (Rule 27) 6. Physical and mental examination of persons (Rule 28) Note: The modes of discovery are cumulative. They are not alternative nor mutually exclusive.

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

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

XPNs:

1.

2.

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 When the permission of the court in

2.

which the detention prisoner’s case is pending was not obtained (Sec. 10, Rule 21).

3.

5. QUASHING OF SUBPOENA

4. Q: How to quash a subpoena? A:

5.

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

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)

Subpoena ad testificandum:

1. 2.

That the witness is not bound thereby. That the witness fees and kilometrage allowed by the Rules were not tendered

VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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) .

55 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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 depositio n 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 

Q: May a party rebut a deposition?

must await joinder of issues. A: Yes. At the trial or hearing, any party may rebut XPN: In cases of special circumstances. There must be some “necessity” or “good reason” for

any relevant evidence contained in a deposition whether introduced by him or by any other party

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. 12-

(Sec.9, Rule 23).

Q: Before whom may depositions be taken? A:

1.

13, 2007 ed.)

If within the Philippines

a. b. c.

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.

If outside the Philippines

a.

b.

2. It is not necessary  when an answer has already been served and the deponent is not confined in prison. (sec. 1, Rule 23)

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

c.

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

56

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 Instrument issued by a court of justice, or

other competent tribunal, to authorize

Letters Rogatory  Instrument sent in the name and by authority of a judge or court to another, requesting the latter to cause to be

a person to take depositions or do any

examined, upon interrogatories filed in a case pending before

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

other act by authority

the former, a witness who is

of such court or

within the jurisdiction of the  judge or court to whom such letters are addressed. Issued to the appropriate

tribunal.

Issued to a non judicial foreign officer who will directly take

 judicial officer of the foreign

the testimony.

country to take down

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)

country who will direct

somebody in said foreign Q: When may the court make orders for the protection of parties and deponents?

testimony. Applicable rules of 

procedure are those of the requesting

court.

Applicable rules of procedure

are those of the foreign court

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).

requested to act. Resorted to if the execution of 

Resorted to if  permission of the foreign country is given.

the commission is refused in the foreign country. (There must be a showing that the

commission is inadequate or Q: What are the orders that the court may make for the protection of parties and deponents?

ineffective)

Leave of court is not necessary.

Leave of court is necessary.

A:

1. 2.

Q: Who are disqualified to be a deposition officer? 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 t he action (Sec. 13, Rule 23).

3. 4. 5.

6.

Q: May the parties stipulate in writing for the taking of depositions?

7.

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,

8.

Rule 23).

Q: What is the requirement in taking deposition upon oral examination?

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).

A: A party desiring to take the deposition of any

Q: What are the duties of the officer before whom the deposition is to be taken?

person upon oral examination shall give reasonable notice in writing to every other party to the action (Sec. 15, Rule 23).

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).

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 VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Note: The testimony shall be taken stenographically unless the parties agree otherwise (Sec. 17, Rule 23) 57

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

4. Q: What objections shall be noted by the officer upon the deposition?

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

Q: What is the effect if the witness does not sign 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 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. 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).

2.

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?

3.

A: The refusal may be considered contempt of that court (Sec. 2, Rule 129).

4.

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; 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)"; 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 Give prompt notice of its filing to all the parties (Sec. 21, Rule 23).

Q: When shall the deposition be submitted to the witness for examination?

Note: Failure to comply with this requirement is a

A: It shall be submitted when the deposition is fully

2007 ed.)

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).

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

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

entered upon the deposition by the officer with a statement of the reasons given by the witness for making them (Sec. 19, Rule 23).

mere defect in form which cannot affect the admissibility of the deposition. (Herrera, Vol. II, p. 38,

A: The court may order the party giving the notice

Q: Is the signing of deposition necessary?

to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable

A:

attorney’s fees (Sec. 23, Rule 23).

GR: Yes, it shall be signed by the witness. Q: What is the consequence of failure of party giving notice to serve subpoena?

XPN:

1. 2. 3.

58

Parties by stipulation waive the signing; Witness is ill; Witness cannot be found; or

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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).

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.

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,

6.

Rule 23). Note: The duties of the officer under Secs. 17, 19, 20,

21 & 22 of Rule 23 shall also be f ollowed on deposition upon written interrogatories (Secs. 26 & 27, Rule 23).

 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.  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. 2.  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. 3.  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. 4.  As to oral examination and other  particulars – Errors and irregularities VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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 59

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

3.

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)

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 c ourt 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:

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.

1.

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

2.

Rule 24 – a method of presenting testimony .

1.

7, Rule 24)

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

b. USES; SCOPE OF EXAMINATION

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.

60

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

7.

The identity and location of persons having knowledge of relevant facts (Sec.

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

2, Rule 23).

A: c. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE MADE

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.

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 DEP OSITION BE TERMINATED OR ITS SCOPE LIMITED

3.

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).

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 

2. WRITTEN INTERROGATORIES TO ADVERSE PARTIES Q: What is the purpose of interrogatories to parties?

ed.).

A: For eliciting material and relevant facts from any adverse party (Sec. 1, Rule 25).

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,

Q: Distinguish interrogatories from bill of particulars. 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)

Rule 23).

Q: When may taking of deposition be t erminated 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)

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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.

A: Subject to the provisions of Sec. 29, Rule 23,

A:

2.

18, Rule 23)

Provides such protection during the taking of  deposition.

Q: What is the rule on objections to admissibility of deposition?

Q: What are the grounds for the termination or limitation of the examination?

1.

Motion to Terminate or Limit Examination (Sec.

Bill of Particulars clarify Designed to 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)

61 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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 With intervention officer authorized

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?

Party only

Procedure

A: Objections shall be presented to the court within

of the by the

No intervention. Written interrogatories are directed to the party himself 

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).

Served directly upon the adverse party (Sec

Q: Is leave of court necessary before a party may be served with written interrogatories?

Court to take deposition upon the Not served adverse party directly. They are instead delivered to the officer before whom the deposition is to be taken.

1, Rule 25)

A:

(Sec 26, Rule 23)

GR: It is not necessary after answer has been

Scope Direct, cross, redirect, reOnly one set of  cross interrogatories Interrogatories

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.

15 days to answer No fixed time

unless extended or

reduced by the court Q: What is the procedure in taking interrogatories? 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).

62

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

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) .

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.

b. EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES

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) .

Q: What is the effect of failure to serve written interrogatories? A:

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 a ppeal. GR:

(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) .

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) 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;

3. REQUEST FOR ADMISSION Q: What admissions may be requested from the adverse party? A: Admission of the:

1.

2.

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,

(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 VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Genuineness of any material and relevant document described in and exhibited with the request; or Truth of any material and relevant matter of fact set forth in the request (Sec. 1, Rule 26).

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)

63 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

Q: When may request for admission be made?

Q: When should objections to any request for admission be submitted?

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

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: When is there an implied admission? Q: May an admission be withdrawn? 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). 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.)

b. CONSEQUENCES OF FAILURE TO ANSWER REQUEST FOR ADMISSION

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? 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) . 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.

A: Upon motion of any party showing good cause

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) c. EFFECT OF ADMISSION Q: What is the effect of admission? A: Any admission made by a party pursuant to such

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).

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).

64

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

A:

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

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.

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.

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

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

3.

Means of compelling production of evidence It may be directed to any person whether a party

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)

or not.

4.

Issued upon an ex parte application.

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.

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)

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)

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

65 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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)

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, 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

1. 2. 3. 4.

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

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; Refuse to allow the disobedient party to support or oppose claims or defenses; Strike out all or any part of the pleading of the disobedient party; Dismiss the action or the proceeding; Render a Judgment by default against the disobedient party; Stay further proceedings until order is obeyed; Render a Judgment by default against the disobedient party Order the arrest of the refusing party. Refusal to submit to Physical or Mental examination

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

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; Prohibit the disobedient party to introduce evidence of physical and mental conditions; Strike out all or any part of the pleading of the disobedient party; Dismiss the action or the proceeding; Render a Judgment by default against the disobedient party; Stay further proceedings until order is obeyed; Render a Judgment by default against the disobedient party

1. 2.

Require payment of reasonable fees incurred by the proponent (Secs. 1-4) Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26).

Refusal to the request for admission by adverse party

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

M. TRIAL Q: When is a case ready for trial? Q: What is a trial? 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.

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 

Q: What is the rule on notice of trial?

Procedure: A Restatement for the Bar, p. 394, 2009 ed.)

A: Upon entry of a case in the trial calendar, the Q: Is trial necessary?

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 befor e such date. (Sec.1,

A: GR: When an issue exists, trial is necessary.

Decision should not be made without trial.

Rule 30)

XPNs: There is no need for trial in the following

1. ADJOURNMENTS AND POSTPONEMENTS

cases: 1. Where the pleadings of the parties tender no issue at all, a judgment on the pleadings may be directed by the court

Q: What is the rule on adjournment and postponement of trial?

(Rule 34);

2.

3.

4.

5.

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)

Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment (Rule 35); 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); Where the complaint has been dismissed with prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; last. par., Sec. 5, Rule 7) ; Where the case falls under the operation of the Rules on Summary Procedure (Rule

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.

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).

2. REQUISITES OF MOTION TO POSTPONE TRIAL Q: What are the criteria in granting postponements?

Q: Distinguish trial from hearing. A:

1. 2.

A: Trial Reception of  evidence and other processes.

The period for the introduction of  evidence by both parties.

Hearing Not confined in trial but

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

embraces several stages of  litigation, including the pre-

trial stage.

Q: What are the requisites of a motion to postpone trial for absence of evidence?

Does not necessarily imply presentation of evidence in

A: Affidavit showing:

open court but the parties are

a. The evidence is material or relevant

afforded the opportunity to

be heard.

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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. b.

Presence of such party or counsel at the trial is indispensable; 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

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 addu ce 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

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)

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)

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?

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

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:

68

his affirmative defense he shall proceed first to prove his exemption.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

2.

5. CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL Q: Distinguish consolidation from severance.

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)

A:

Q: When may civil actions be suspended? Consolidation

Involves

several 

Severance single Contemplates a actions action having a number

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

A:

1.

of claims, counterclaims, cross-claims, third-party complaints, or issues which may be separately tried.

2.

Q: What are the requisites for consolidation?

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).

A:

1. 2.

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

6. DELEGATION OF RECEPTION OF EVIDENCE Q: May the judge delegate the reception of evidence?

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.

A: GR: No. The judge shall personally receive and

Consolidation Proper

Test-Case Method

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

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, Procedure, 2009 ed.).

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) .

Civil   p. 96,

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

7. TRIAL BY COMMISSIONERS GR: Consolidation is discretionary upon the Q: Who is a commissioner?

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.

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.

XPNs: Consolidation becomes a matter of duty

when: 1. If two or more cases are pending before the same judge; or VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Q: Distinguish delegation to clerk of court under Rule 30 from trial by commissioner under Rule 32.

69 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

A: Delegation to Clerk of  Court

b. POWERS OF THE COMMISSIONER Trial by Commissioner

Q: What are the powers of a commissioner?

Commissioner can be 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.

appointed even after the

A:

case has become final

1.

and executory. Commissioner need not

2.

be a lawyer. Commissioner can rule on objections or on admissibility of evidence.

3.

Q: What is the rule on trial by commissioner?

4. 5.

A: GR: Discretionary upon the courts.

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.

70

(Sec.3, Rule 32). Note: Requirement of hearing cannot be dispensed

XPNS:

1. 2. 3.

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

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) .

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?

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

A:

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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

A:

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

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).

Motion Denied

Motion Granted Reversed on Appeal

but

shall have right to present evidence

the Movant is deemed to have his waived his right to present 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 adjudication on the merits. Sec. 1, Rule 36 (that state Hence, the requirement in  judgment should clearly and distinctly the Sec. 1, Rule 36 should be facts and the law on which complied with. it is based), will not apply. Movant

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 during the commissioner’s report hearing?

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.

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) .

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?

Before filing When to file

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.

answer

Demurrer to Evidence (Rule 33) After the plaintiff  of  rests its case or after the completion of the presentation of  evidence

Grounds

Note: There is only a one side trial, i.e. it is only the

The 10 grounds That upon the facts enumerated in and the law, the Rule 16 plaintiff has shown no right to relief 

plaintiff who has presented evidence. The If  denied

Q: When may a party to the case move for dismissal based on insufficiency of evidence?

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 A:

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

If  granted

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

dismissal.

The defendant may present his evidence. The complaint may NOT be filed. The remedy of  the plaintiff  is to appeal from the dismissal. 71

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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.

reception of the defendant’s evidence.

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.

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.

A: It is a judgment rendered by the court dismissing

1. GROUND

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. 3. EFFECT OF GRANT

Q: What is judgment on demurrer to evidence?

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

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.

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

A: If the demurrer is granted but on appeal

the plaintiff has no right to relief.

72

the order of dismissal is reversed, the defendant is deemed to have waived his right to present evidence (Sec.1, Rule 33)

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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: Civil Case Leave of court If granted

Criminal Case

Not required The Plaintiff may appeal from the order of  dismissal of the 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 there was no leave of court, accused can no longer present his evidence and submits the

If denied

case for decision based on the prosecution’s

evidence If the court finds plaintiff’s evidence insufficient,

If the plaintiff  appeals from the order of  dismissal

How demurrer denied?

it will grant the demurrer by dismissing the complaint. The judgment of dismissal is appealable by the plaintiff. If plaintiff appeals

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

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

can be The plaintiff files a motion to deny motion to

The court may motu proprio deny the motion.

demurrer to evidence.

O. JUDGMENTS AND FINAL ORDERS

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.

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

7.

expressly agrees to the other party’s claim

3.

4.

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.

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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.

8.

9.

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

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UST GOLDEN NOTES 2011

10.

11.

12.

13.

14.

15.

16.

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 obligo r 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.

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

74

A:

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? A:

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

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

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

4. SUMMARY JUDGMENTS Q: How should a conflict between the parts of a decision be resolved?

Q: What is a summary judgment? A: A summary judgment or accelerated judgment is

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

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) .

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.

Authority of the court to hear and

3.

determine the case. Jurisdiction – over the parties and the subject matter The parties must have been given an

4.

opportunity to adduce evidence. The evidence must have been considered

2.

Q: What are the requisites of summary  judgments?

by the tribunal in deciding the case. 5. The judgment must be in writing, personally and  directly prepared by the  judge. 6. 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.

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

3. JUDGMENT ON THE PLEADINGS

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

Q: When is there a judgment based on pleadings? 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) .

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. Note: Judgment must be on motion of the claimant. It cannot be rendered by the court motu proprio. Q: What are cases where judgment on the pleadings will not apply?

b. FOR THE DEFENDANT

A:

1. 2. 3.

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

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

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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 75

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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?

1.

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) .

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 Judgment on the pleadings Answer

Answer does not tender an issue

Notice Termination Who can file

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

Basis of the  judgment

6. RENDITION OF JUDGMENTS AND FINAL ORDERS

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

Q: What is a rendition of judgment?

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) .

A: Rendition of judgment is the filing of the same

Q: How should a judgment be prepared?

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.

76

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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

Q: What are the available remedies to the aggrieved party after rendition of judgment?

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

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

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)

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.

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

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 RECONSIDERAT RECONSIDERATION ION

Grounds

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 Newly discovered evidence, which could not with reasonable

1.

diligence, have been discovered and produced at the trial, and which if presented, would probably alter the result (Sec. 1, Rule 37). Requisites

3.

Must be in writing; 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; In case of newly discovered evidence: 4. a. Affidavit of new witnesses; and b. Duly authenticated documents to be introduced.

1.

1.

2.

1.

2.

2.

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 r eglementary period for appeal.

When to file VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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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 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). Single motion rule (applicable only on a Second motion may be allowed so long as based on grounds not existing

 judgment or or final order order but not to

or available at the time the first motion was made. (Sec. 5, Rule 37)

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 

If granted, the original judgment or final order shall be vacated, and the

granted,

action shall stand for trial de novo. The recorded evidence taken upon the

the

court

may

amend

such

 judgment or or final order order accordingly ( Sec.

former trial, insofar as the same is material and competent to establish

3, Rule 37 ). ).

the issues, shall be used at the new trial without retaking the same ( Sec. 6, Rule 37 ). ).

Note: The amended judgment is in the

nature of a new judgment supersedes the original judgment.

which

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?

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

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 R econsideration econsideration shall be allowed. Q: When is a record of appeal required? A: A record of appeal is required only in:

1. 2.

Special proceedings; 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).

78

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 t he evidence or law), it may amend such judgment or final order

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

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  pro forma motion. Note: Under Sec. 2,Rule 37 a  pro- forma motion shall not toll the reglementary period of appeal. Q: What is a proa pro- forma motion? 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 ).

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. 07). 7-12-SC ).

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: When does the fresh period rule apply? A: It applies to: 1. Rule 40 – 40 – MTC to RTC 2. Rule 41 – 41 – Appeals from RTC 3. Rule 42 – 42 – Petition for Review from RTC to CA 4. Rule 43 – 43 – Appeals from quasi-judicial agencies

Q: What are the requisites of newly discovered evidence as a ground for New Trial? A:

1. 2.

to CA 5. Rule 45 – 45 – Appeals by certiorari to the SC Note: The “fresh period rule” does not refer to the

3.

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.

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: 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 ).

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). 1986). VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C.

NEWLY DISCOVERED EVIDENCE

FORGOTTEN EVIDENCE

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

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.

79 MENDOZA

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

A: The purpose of a motion for reconsideration is 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

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

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

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  udgment Based specific

upon 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: Juan has 15 days from the receipt of the decision 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?

80

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

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

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: 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?

A:

If decision is made by the

to file and serve both notice and record on appeal. If required, copies of 

Q: What are those cases which allow multiple appeals?

Q: Distinguish Notice of Appeal from Record on Appeal?

notice of appeal.

If required, the appellant has 30 days

Should indicate: both the notice of  1.Parties to the appeal; appeal and the record 2.Judgment or final order or part thereof appealed from; on appeal shall be filed 3.Material dates showing the In court and served to the adverse party. timeliness of the appeal

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) .

NOTICE OF APPEAL Deemed perfected as to him upon the filing of the

appeal beyond that period)

RECORD ON APPEAL Required only in Special Proceedings and other cases of  multiple or separate

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.

appeals.

st

courts of 1  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

b. MATTERS NOT APPEALABLE

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

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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;

81 U N I V E R S I T Y O F  S A N T O  T O M A S

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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.

d.

Q: Can a question that was never raised in the courts below be allowed to be raised for the first time on appeal?

e.

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. b. c.

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 v. Poblete GR No. 144435, February 6, 2007 ).

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- 7-12, 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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

a. b.

Notice on appeal Record on appeal

2. Petition for review (Rule 42, 43) 3. 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

PERIOD OF APPEAL

Within 15 days after notice to the appellant of the udgment or final order appealed (Sec 2. Rule 40).

PERIOD OF APPEAL IF A MR OR MNT WAS FILED (Neypes Doctrine)

Within 15 days from receipt of the order denying motion for reconsideration or new trial.

ISSUES THAT MAY BE RAISED

fact or Questions of  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 udgment 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).

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).

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)

Petition for Review (RTC to CA) Appellate Jurisdiction Rule 42

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: Upon a. proper motion; and b. Upon payment of the full amount of  the

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.

docket and other lawful

Petition for Review (QuasiJudicial Bodies to CA) Rule 43

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).

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 VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE 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 ); from 5. Appeals a final  judgment or order in a petition for a writ of amparo to the SC ( AM No. 07-9-12- SC ); and 6. Appeals a from final  judgment or 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 motion for new petitioner’s motion trial or 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

Within 15 days from receipt of the order denying motion for reconsideration or new trial

Only questions of law (Sec. 1, Rule 45).

filed and served;

b.

c.

There is full payment of  the docket and other lawful fees and the deposit for costs; and The motion is filed and and served the payment is made before the expiration of  the reglementary period (Sec. 2, Rule 45).

Note: This fresh period rule applies Rule 40,41,42,43, and 45. Accordingly, this rule was adopted to standa rdize 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 p eriod 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

Petition for Review

A matter of right

Discretionary

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.

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: Appeal by Certiorari(Rule 45)

Review of Judgments, Final Orders or Resolutions (Rule 64)

Petition is based only on questions of 

Petition is based on questions of 

law.

law.

It is a mode of appeal.

84

It is a mode of appeal but the

petition used is Rule 65.

Petition for Certiorari(Rule 65) 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 review.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR

CIVIL PROCEDURE

Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts on the merits

Involves review of judgments, final orders or resolutions of 

May be directed against an

interlocutory order of a court or

COMELEC and COA.

where there is no appeal or any

Note: CSC judgments, final orders or

resolutions are governed by Rule 43

other plain, speedy or adequate remedy.

Filed within 15 days from notice of   judgment, final order or resolution

Filed within 30 days from notice of   judgment, final order or

Filed not later than 60 days from notice of judgment, order or

appealed from.

resolution sought to be reviewed. Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem

resolution appealed from. Unless a writ of preliminary injunction or temporary restraining

Stays the judgment or order appealed from

 just. The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial

order is issued, it does not stay the challenged proceeding The judge, court, quasi-judicial

The COMELEC and COA shall be public respondents who are

impleaded in the action.

agency is not impleaded.

The filing of MNT or MR, if 

Motion for reconsideration is not 

allowed under the procedural

required.

rules of the Commission, shall

interrupt period fixed.

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 court is in the exercise of its

The court is in the exercise of its

appellate jurisdiction and power of 

appellate jurisdiction and power

review.

of review.

Filed with the SC.

Filed with the SC.

Court exercises original jurisdiction. 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 c onsidered in appeal?

f. PERIOD OF APPEAL A: Q: What is the period to appeal?

GR: Only errors assigned in the brief may be

considered on appeal A: Within 15 days from notice of the judgment or final order appealed from.

XPNs:

1. 2.

3.

4.

5. 6.

Grounds not assigned as errors but affecting the jurisdiction over the subject matter Matters not assigned as errors on appeal but are evidently plain or clerical errors within the contemplation of law; 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; 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; Matters not assigned as errors on appeal but closely related to an error assigned; and Matters not assigned as errors on appeal but upon which the determination of a question properly assigned is dependent. (Riano, Civil 

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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 app ellants, 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?

85 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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.

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 t he decision of the lower court

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. g. PERFECTION OF APPEAL

2.  As to reversal of judgment

GR: Binding only on the parties in the appealed Q: When is an appeal perfected? What is its effect?

case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal

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.

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.

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.

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

Effect: The court loses jurisdiction

reglementary period is jurisdictional.

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.

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) ).

 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.

Q: What is the effect of a perfected appeal? A: GR: Judgment is not vacated by appeal, but is

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.

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?

86

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

A: GR: Payment of docket fee is jurisdictional. Without

Q: Where to appeal from a judgment or final order of a Municipal Court?

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 ).

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 ).

However: the rule must be qualified:

Q: When should the appeal be taken?

1.

2.

The failure to pay appellate court docket fee within the reglementary period allows only discretionary dismissal, not automatic dismissal, of the appeal; Such power should be used in the

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).

exercise of the court’s sound discretion

(Republic v. Spouses Luriz, GR No. 158992,  January 26, 2007 ). h. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC Q: Discuss the procedure of appeal from decisions of the MTC to the RTC.

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:

A:

1.

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.

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 d ismissal is lack of jurisdiction over the subject matter  –

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.

2.

Parties are given notice that the records have been received by the RTC.

1.

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?

Within 15 days from notice of appeal –

appellant submits memorandum to the RTC. 2.

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)

Within 15 days from receipt of appellant’s memorandum  – appellee files his

memorandum.

Note: Failure of the appellant to file a memorandum

XPN: Section 8, Rule 40 allows an appeal from an

shall be a ground for the dismissal of the appeal.

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

order of the MTC dismissing a case for lack of  jurisdiction.

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

i. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC Q: What are the three modes of appeal from the decisions 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

A:

1.

Ordinary appeal or appeal by writ of error  – where judgment was rendered in a civil

2.

3.

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:

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 

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). Note:

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 Filed within 45 days

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

Memorandum Certiorari , prohibition, mandamus, quo warranto and habeas corpus cases Filed within 30 days

Shorter, briefer, only one issue Contents specified by rules

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.

88

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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.

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

7.

8.

2.

arguments

on

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 3.

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.

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

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?

as an appendix, a copy of the judgment or final order appealed from (Sec. 13, Rule 44).

A:

1.

Q: What are the contents of the appellee’s brief? A: The appellee’s brief shall contain, in the order

herein indicated, the following: 2. A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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?

appeal, the appellant’s brief shall contain,

1.

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

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 89

U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

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

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: When does Rule 42 apply?

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

A: Rule 42 applies to an appeal from the judgment

A:The

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?

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? A: It is not a matter of right but discretionary on the

A:

1.

2.

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)

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:

1.

2. 3.

90

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.

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

3.

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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.

4.

Note: Civil cases decided under the Rules on Summary Procedure shall not be stayed (Section 8b, Rule 42).

5.

Q: Give some instances where the CA may act as a trial court. A:

6.

1.

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. 2. 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

in the appellant’s brief, or of page

7.

8.

(Sec. 4, Rule 53).

3.

A petition for habeas corpus shall be set for hearing (Sec. 12, Rule 102) . 4. In petition for writs of amparo and habeas data, a hearing can be conducted. 5. 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. 6. The CA can grant a new trial based on the ground of newly-discovered evidence

9.

8.

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.)

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)

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: 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.

Q: When does Appeal by Certiorari under Rule 45 apply?

Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by the Rules;

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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)

(Sec. 14, Rule 124).

7.

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 R ule 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

A: Appeal by certiorari to the Supreme Court or petition for review on certiorari applies in the following cases:

91 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

1.

2.

3.

4.

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 );

5.

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 );

6.

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

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 quasi judicial 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:

difference arises as to what the law is on a certain set of facts.

RTC, Sandiganbayan or R TC renders decision.

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.

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 quasi judicial bodies? A: No. Under the present Rule 45, appeals may be brought through a petition for review on certiorari 

92

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

With the SC (Section 5 (1) 1987   Article VIII, Constitution).

Within 20 days from the receipt, the appellant may file a reply brief 

Q: When may the SC, on its own initiative, deny the petition for review?

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,

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).

(sec.5, Rule 45)

 j. APPEAL FROM JUDGMENT OR FINAL ORDERS OF THE CA

Q: Distinguish Certiorari under Rule 45 and Certiorari under Rule 65. A: CERTIORARI (RULE 45) Mode of  appeal which seeks to review final  judgments and orders (Section 2, Rule 41)

Q: May a reversal of judgment benefit a party who did not join or was not made a party to the appeal?

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

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.

1, Rule 41)

Raises questions of law

questions Raises of   jurisdiction It shall be filed within It shall be filed not later 15 days from notice of  than 60 days from notice of  order  judgment or final order  judgment, or appealed from 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 Does not require prior Requires as a general rule, motion for a prior MR reconsideration Stays the  judgment Does not stay the sought to be appealed  judgment or order subject of the petition unless enjoined or restrained. The parties are the The tribunal, board, officer original parties with the exercising judicial or quasiappealing party as the  judicial functions is and petitioner the impleaded as respondent adverse party as (Section 5 Rule 65). without  respondent impleading the lower court or its  judge (Section 4a, Rule 45). Filed with the SC Filed with the RTC ( Section 21, BP 129); (Section 1, Rule 45). With the CA (Section 9, BP 129); VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

The appeal is without merit; Prosecuted manifestly for delay; or That the questions raised therein are too unsubstantial to require consideration

XPN: Where the rights of such parties are so

interwoven and dependent on each other as to be inseparable due to community of i nterests. 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;

93 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

7. 8.

9.

The findings are contrary to those of the trial court; The findings of facts are conclusions without citation of specific evidence on which they are based; The facts set forth in the petition as

A:

well as in the petitioner’s main and

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).

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

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 ).

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

Q: Where should the appeal from the decision of the CTA en banc  be taken?

1.

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) .

Note: The provision of Section 27 of RA 6770 (The

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?

In administrative disciplinary cases,  the rulings of the Office of the Ombudsman are appealable to the CA under Rule 43.

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

A: Appeals from judgment and final orders of quasi-

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

 judicial 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 ).

(St. Martin Funeral Homes vs. NLRC, G.R. No. 130866, September 16, 1998). If filed with SC it shall

Q: What issues may be raised on appeal?

be dismissed instead of referring the action to the CA (A.M. No. 99-2-01-SC).

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 ).

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: What are the contents of comment to the petition and when must it be filed?

q. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF QUASI- JUDICIAL AGENCIES

A: An organ of the government other than a court

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.

and other than a legislature, which affects the rights of private parties through either adjudication or rule-making.

The comment shall: 1. Point out

Q: What is a quasi-judicial agency?

Q: What are the agencies included under Rule 43?

2.

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) .

insufficiencies

or

facts and issues; and 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. 2. 3.

Notice of the award, judgment, final order or resolution; or Date of publication, if publication is required by law for its effectivity; or 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.

Note: The office of the Prosecutor is NOT a quasi judicial body and its action approving the filing of information is not appealable to the CA under Rule 43.

Q: Is extension of time to file petition for review allowed?

Q: Where should the judgments and final orders of quasi- judicial bodies be appealed? VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

the

inaccuracies in petitioner’s statement of

95 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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

Appeal from Quasi-judicial agencies (Rule 43)

42)

Decision is immediately executory. It is not stayed by an appeal XPN: CA shall direct otherwise upon such terms as it may deem just GR:

Decision is

stayed by an appeal.

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

(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 ).

certiorari.

Q: When is the withdrawal of an appeal a matte r 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

96

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.

Applies to judgments or final orders only.

Petition for Relief from Judgment Available after  judgment has become final and executory. Applies to judgments, final orders and other proceedings: e.g. land registration; special proceedings; order of  execution.

Grounds for

motion for new trial: Grounds: 1. Fraud, accident, Fraud, accident, mistake or mistake or excusable excusable negligence. negligence; 2. Newly discovered

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

evidence

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.

Grounds for motion for reconsideration: the

damages awarded are excessive; that the

evidence is insufficient to a. GROUNDS FOR AVAILING OF THE REMEDY

 justify the decision or final

order, or that the decision Q: What are the grounds for petition for relief?

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:

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.

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,

Petition must be verified.

Rule 38).

Note: A party who has filed a timely motion for new

Q: Where should the petition be filed?

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 ).

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 )

2.

b. TIME TO FILE PETITION

Q: What are the duties of the court after an answer to the petition has been filed

Q: When should the petition for relief be filed?

A: After the hearing and the court finds the allegations therein not true, it shall dismiss the petition.

A:

1.

If the allegations are true, the court shall set aside the judgment, final order or proceeding complained of. (Sec. 6, Rule 38)

2.

Q: Is the remedy of preliminary injunction available pending the resolution of the petition for relief?

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.).

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 ). VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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 )

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?

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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?

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).

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?

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

Judgments of MTC

Filed with the CA

Filed with the RTC

Basis – It has exclusive original jurisdiction over said action under Sec. 9 (2), BP 129 CA may dismiss the case

A:When the petition is sufficient in form and

outright; it has the

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).

discretion on whether or

not to entertain the petition.

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.

valid ground if it was availed of, or could have been availed of in a motion for new trial or petition for relief. 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

98

Extrinsic fraud or collateral fraud  – not a

3.

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

A: Fraud is regarded as extrinsic where it prevents a

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 decis ion on the ground of extrinsic fraud. The appellate court granted Rhea’s petition. Is the CA correct?

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 ). Q: What is meant by lack of jurisdiction?

A: Yes. Annulment of judgment is a remedy in law A: Lack of jurisdiction as a ground for annulment of

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) .

 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

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 it s face is null and void, as where it is patent that the court which rendered such  judgment has no jurisdiction (Co vs. Court of 

47).

c. EFFECTS OF JUDGMENTS OF ANNULMENT Q: What is the effect of a judgment of annulment?

 Appeals, 196 SCRA 705).

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)

Q. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS Q: What is execution? A: It is a remedy provided by law fo r the enforcement or satisfaction of a final judgment.

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).

1. DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION Q: What is meant by final judgment?

If based on extrinsic fraud - The court, upon motion,

A:

may order the trial court to try the case as if a motion for new trial was granted (Sec. 9, Rule 47).

1.

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 VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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).

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

2.

1.

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.

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

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.

determine the right of the parties.

Still subject to appeal

Execution of judgment not a matter of right.

The judgment has become final and executory(Section 1, Rule 39);

3. 4.

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? A:

2. WHEN EXECUTION SHALL ISSUE

GR: Execution of judgment is a matter of right

a. AS A MATTER OF RIGHT

on the part of the winning party. The court cannot refuse execution.

Q: When shall execution be issued? A: Execution is a matter of right upon the expiration

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.

When the judgment has been novated by the parties (Dormitorio v. Fernandez, G.R.

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) 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)

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).

3.

Q: When is an execution a matter of right? A: Execution will issue as a matter of right when:

4.

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-

100

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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) ;

1.

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.

2. 3. 4.

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)

Q: Where should you file an application for discretionary execution? A:

1. b. AS A MATTER OF DISCRETION

a. b.

Q: When is execution discretionary?

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

A:

2.

1. 2.

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; 3. When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court; and 4. When trial court has lost jurisdiction and has transmitted records (motion for execution pending appeal with appellate court). 5. Execution of several, separate or partial  judgment(Florendo v. Paramount 

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).

Insurance Corp, now MAA General Insurance Inc., GR No. 167976, January 20, 2010 )..

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?

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

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.

(Florendov. ParamountInsurance Corp. (nowrenamed MAA General Insurance Inc.), G.R. No. 167976, Jan. 20, 2010).

Q: What are the requisites for discretionary execution?

The MR filed by JP Latex had not been acted upon by the RTC before it ruled on the motion for

A:

execution “pending appeal.” The pendency of the

MR has prevented the period to appeal from even commencing. The period within which a party may VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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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 supp ort and special proceedings.

a. EXECUTION BY MOTION OR BY INDEPENDENT ACTION

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 

Q: What are the modes of execution of judgment?

vs. People, 314 SCRA 669)

A:

Q: Can execution be effected by motion after five years?

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

102

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

Q: What is revival of judgment?

Q: What are the defenses available in an action for enforcement?

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.

A:

1. Prescription; 2. Satisfaction of claim; and 3. Counterclaims.

Q: When should the action for revival of judgment be filed?

Q: Will execution issue upon death of a party?

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.

A:

a.

Death of an obligee – execution will issue

in any case, upon application of his executor, administrator, or successor-ininterest b.

Q: What is the nature of a revived judgment?

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

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 ).

- 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

Q: May the period to execute the judgment be stayed?

custodia legis.

A: Yes: by agreement of the parties; by injunction; or by taking an appeal or writ of error.

b. ISSUANCE AND CONTENT OF A WRIT OF EXECUTION

Q: What is the effect of an appeal to the execution of the judgment?

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.

A: GR: An appeal perfected in due time stays the

Q: What is the lifetime of a writ of execution?

execution of a judgment.

A: The writ is enforceable within 5 years from the entry of judgment as provided for in Sec. 6 of Rule 39.

XPNs: There are judgments which by express

provision of law not stayed by appeal: 1.

2.

Q: What are the contents of a writ of execution?

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.

A:

1. 2. 3.

Those judgments that have become the object of discretionary execution (Sec. 2, Rule 39).

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

4.

The name of the court which granted t he 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

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

the writ according to its terms (Sec.8, Rule

a.

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. Q: Is a writ of execution subject to a motion to quash?

b.

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 exempt from a property against 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 i n 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 c hoose 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 off icer 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. Immediate payment on demand 2. 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. 3. Garnishment of debts and credits. Q: What are the steps in executing a judgment for money? A:

104

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 incorporeal property which belong to the other

 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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, 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.

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?

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

3.

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 

4.

43).(2008 Bar Question)

Q: How is money judgment implemented if the obligee is absent at the time of payment? A: Sec. 9, Rule 39 lays down the procedure to be

Q: How can judgment be executed for the following specific acts if the judgment debtor refuses/fails to comply therewith?

followed by the sheriff in implementing money  judgments. 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.

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: Judgments for Specific Act (Sec.

Manner of Execution

10)

Conveyance, delivery of deeds, or other specific  acts, vesting title. Sale of real and   personal propert y 

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

P-10-2772 (formerly A.M. OCA I.P.I No. 07-2615-P), Feb. 16, 2010).

 judgment. If the party refuses to deliver, a

d. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS

sheriff to cause the defendant to vacate is in the nature of a haberefaciaspossesionemand

writ of execution directing the

Q: What are considered specific acts? Delivery or  restitution of real   property 

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 exe cuting a judgment for specific acts? A: VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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.

Removal of  improvements on  property subject of  execution Delivery of   personal propert y 

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.

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

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:

f. EFFECT OF LEVY ON THIRD PERSON GR: The judgment debtor cannot be cited in

contempt of court. Generally, contempt is not a remedy to enforce a judgment.

Q: What is the effect of levy on execution as to third persons?

XPN:

A: It creates a lien in favor of the judgment obligee

1.

2.

Refusal to perform a particular act or special judgments under Sec. 11 where he may be cited in contempt. 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.

b. c.

Vacate the property  – the sheriff must oust the party. A demolition order from t he court is required to effect removal of an improvement constructed by the defeated party. Deliver  – the sheriff will take possession and deliver it to the wining party 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

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 are the remedies available to a thirdparty claimant in levy of real property?

contempt

3.

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)

A: Failure to comply with special judgment under

by

2.

4.

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

by

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

106

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)

1.

A: It is a judgment that can be complied with only

punishable

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:

Q: What is a special judgment?

Section 11 is imprisonment.

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) .

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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?

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. Remedial Law Compendium Vol. 1, 9 th ed., pp. 481-482)

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.

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 th ird person:

1. 2. 3.

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). VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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.

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

Q: What is the procedure for a 3 rd 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.

108

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

Once he redeems,

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) . 3. 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) . 4.  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.

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.

6. RULES ON REDEMPTION Q: Is the right of redemption available to any type of property?

Q: Can redemption be made in other forms than cash?

A: No. There is no right of redemption as to A: Yes. The rule is liberal in allowing redemption and it has been allowed in the case of a cashier’s

personal properties for the sale is absolute. Such right is available only to real properties.

check and certified bank checks. Q: Distinguish a judgment obligor from a redemptioner? What are their rights as regards redemption of real property?

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.

A: JUDGMENT OBLIGOR

REDEMPTIONER

One who has a lien by by virtue 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.

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.

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

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

109 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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) .

Q: When is the purchaser entitled to possession and conveyance of the property sold on execution?

2.

3.

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.

110

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

7.

A:

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).

1.

2.

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?

3.

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 conclu sive upon the condition, status or relationship (Sec.47, Rule 39).

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)

4.

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).

5.

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).

8. EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR Q: How is examination of obligor of judgment obligor done?

Q: When the judgment is final and executory, is it always ministerial upon the court to order execution?

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.

A: GR: Trial Court has ministerial duty to order

Note: The garnishee becomes a forced intervenor,

execution of final and executor judgments. It cannot refuse execution and is compellable by mandamus.

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.

XPN: (Same as grounds to Quash writ of execution)

1.

2. 3.

9. EFFECT OF JUDGMENT OR FINAL ORDERS

4.

Change in the situation of the parties which makes the execution inequitable or unjust; Writ of execution varies judgment; Controversy was never submitted to the  judgment of the court; Execution is sought against property exempt from execution;

Q: What is the effect of final judgments? VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C.

111 MENDOZA

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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; 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

In Personam (Par. b)

The judgment or final order is conclusive between parties and their

successors-in-interest, litigating for the same thing

relationship of the

and under the same title

person.

and in the same capacity.

i.e. land registration cases

i.e. actionreinvindicatoria

Q: When may execution of final and executory  judgment be enjoined?

Note: In both instances, the judgment may be repelled

A:

by evidence of want of jurisdiction, notice, collusion, fraud or clear mistake of law or fact. (par. 4, Sec. 48)

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: What are the requisites of res judicata? A:

1. 2. 3.

Note: Judgment novated by a subsequent agreement

4.

cannot be executed (e.g. agreement entered into by the parties other than terms of payment). 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.

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? Q: Can final and executory judgments be modified?

A:

1.

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

2. 3.

result of exercise of judicial functions To clarify ambiguity; or 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.

 Against a specific thing – conclusive upon

title to the thing. 2.

 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)

112

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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

Particular act(s)

property

Personal and real

Personal property

capable of  manual delivery  Jurisdiction (Court which can grant it)

property

Money or other forms of support GR: Family Court XPN: In criminal actions, as long as the civil aspect is tried

SC, CA, RTC, Family SC, CA, RTC, Family

Court, Metropolitan, Municipal and

Court, Metropolitan, Municipal and Municipal

Municipal Circuit

Circuit Trial Courts

Trial Courts

RTC, Family Court,

SC, CA, RTC, Family Court, Metropolitan, Municipal and Municipal Circuit Trial

Metropolitan,

together with it , the RTC or MTC having

Municipal, and

 jurisdiction may also

Municipal Circuit

issue this remedy.( e.g

Courts

Trial Courts

Art. 345 (3) RPC, in crimes against chastity, “In every

case to support the offspring..”) Who may grant it  Court where action is

Only the Court where

pending, the CA or the SC, or a member thereof, even if action

Courts where action is pending,

the action is pending; Lower court, CA or SC

the CA or the SC (Sec. 2)

provided action is pending in the same

is pending in the lower court. Appellate court may

court which issues the

allow application for

injunction (Sec. 2)

At any stage of the At any stage of the action but before

action but before

entry of final

 judgment or final order

after finality of   judgment; anytime

 judgment (Sec. 1)

(Sec. 1)

prior to satisfaction of 

proceeding and even

 judgment How applied for 

File affidavits and applicant’s bond (Sec. 3)

(Ramos v. CA, GR No. L-31897, June 30, 1972)

At the

commencement of the action but before answer is

filed (Sec. 1)

At the commencement of  the action or at any time prior to the  judgment or final order (Sec. 1)

File verified

application is included in

application and applicant’s bond;

the initiatory pleading,

application may also

the adverse party should

be included in

be served with summons together with a copy of 

initiatory pleading in

the initiatory pleading and

where action is pending.

Court of origin and appellate court.

receivership to be decided by the court of origin (Sec. 1) When available

At any stage of the

File verified application and applicant’s bond; if 

Only the court

actions for foreclosure of 

mortgage (Secs. 1 and  2) Purpose(s) To require a party or a To place the property subject of  court, agency or a

File affidavits and applicant’s bond (Sec. 2)

File verified application; bond not required (Sec. 1)

the applicant’s affidavit and bond (Sec.4)

1. To

seize of 

property

the the

To recover

To compel adverse

possession of 

party to provide

adverse

party

in

person to refrain from

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

an action or

personal

support while the

113 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

advance

for

the

doing a particular act

satisfaction of   judgment that may be recovered in cases falling under

or to require the performance of a particular act

Sec.1, Rule 57.

To prevent future

2. To enable enable the court to acquire  jurisdiction over over the action by the actual constructive or the seizure of  property in those instances where personal service of  the summons on creditor cannot be effected. (Quasha v.

injury and maintain

the status quo. (Kencht v. CA, G.R. No. 97962, Nov. 17, 1993)

proceeding under the control of a

property. (1999 Bar Question)

action is pending in court.

third party for its preservation and administration litis  pendentia and to protect the rights of  all the parties under the direction of the court.

 Juan,G.R.No.L54158, Nov. 19, 1982)

Ground(s)

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 fraudulently or misapplied or converted to his own use by a public officer, or by any other person

in a fiduciary capacity, a or for 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 the or incurring

114

the 1. When applicant has an 1. That the applicant is interest in the property entitled to the relief  or fund demanded which subject of  the proceeding consists in and the restraining such property is in commission or danger of  being continuance of  the lost, removed or act complained of, materially injured or in requiring the unless a receiver performance of  an is appointed; Applicant is: act for a limited 2. In foreclosure of  1. The owner period or mortgage, when of  the perpetually the property is in property When equity and 2. Commission, danger of  being claimed; or continuance or nonwasted or  justice require, require, performance of the dissipated or having due regard to 2. Entitled to the act during materially injured the probable the litigation would and that its value outcome of the case possession probably and such other work is probably thereof  but the insufficient injustice to to circumstances as the the may suggest the applicant; or discharge property is 3. Party, court, agency mortgage debt or reasonability of  wrongfully or a person is doing, that it has been granting support detained by  pendente lite threatening, or is agreed upon by the adverse attempting to do, or the parties; (Sec. party procuring is or 3. After judgment, to 2) the suffering preserve to be property done, some act during probably the pendency of  in the violation of  an appeal or to the of  it rights of  dispose applicant respecting according to the the subject of  the  judgment or to aid action and tending execution when the has render to execution  judgment been returned ineffectual (Sec. 3) unsatisfied of  the  judgment obligor refuses to apply REMEDIAL LAW TEAM: UIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; ADVISER: JUDGE MYRA B. Q UIAMBAO SUBJECT  HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

obligation or in its performance In an action against 5. a party who has removed or disposed of  his property, or is about to do so, with intent to defraud his

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 of  means preserving, administering or disposing of  the in property litigation (Sec. 1).

creditors; 6.

In an action against a party who does not reside and is not the found in Philippines, or on whom summons may be served by publication

Whether principal or ancillary action

Ancillary remedy

Principal action/

Principal action/ ancillary remedy

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.

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

During the pendency of the case unless the

defendant files a

During the pendency of the case.

redelivery bond.

Requirement of Hearing GR: Required XPN: Great

Not required; may be issued ex parte (2001 Bar Question)

or

irreparable injury would result / extreme urgency and applicant will suffer grave injustice and irreparable injury (Sec. 5)

Not required ;

Required

may be issued ex   parte

Required – Within 3 days after comment is filed or after expiration of period

of filing

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, Ru le 58, Sec. 2, Rule 59

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

 )

2 bond requirement for receivership: receivership: 1. Filed by the applicant; and 2. Filed by the receiver.

No bond required.

party of such sum as he may recover from the applicant in the action ( Sec. 2) Immediately Executory 

No

Yes

Yes

No

Yes

Discharge of Remedy  By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Not applicable. 115

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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 Cash deposit may be

damage to the party or

made in lieu of the counter-bond (Sec. 12)

person enjoined while the applicant can be fully

compensated for such damages as he may suffer; counter-bond alone will not suffice to discharge

Amount of 

Amount of counter-

counter-bond to

bond should be

be fixed by the court (Sec. 3)

double the value of  the property ( Sec. 5)

Not applicable.

the injunction ( Sec. 6) Other Grounds For Discharge

1. Improper or irregular issuanceor enforcement or insufficiency of bond. (Sec. 13)

of  1. Insufficiency application (Sec. 9)

1. Appointment the was obtained without sufficient cause.

2. Judgmentrendered against attaching (e.g. grounds 2. Other creditor (Sec. 19) applicant’s bond is 3. Property attached is insufficient/ defective), exempt from execution upon affidavits of  the (Sec. 2 & 5) party or person 4. Attachment is enjoined excessive, but the discharge shall be limited to the excess (Sec. 13).

1. Plaintiff’s bond is

found to be insufficient or defective and is not replaced with proper bond; or

2. Bond posted by the applicant / 2. Property is not receiver is delivered to the insufficient (Sec. plaintiff  for any 3). reason (Sec. 6).

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 Requisites:

1. Owner of the property attached attached must file before trial or before perfection of appeal appeal or before judgment becomes executory an application for damages; 2. Party who availed of provisional provisional remedy and his surety must be notified, notified, showing right right to damages and amount thereof; and 3. Such damages may be be awarded only after proper proper hearing and shall be included included in the  judgment of the main case. case. If the judgment of the appellate court is favorable to the party against whom provisional  remedy was effected:

Application must be filed with the appellate court before the judgment of the appellate court becomes executory. Appellate Appellate court may allow application to be heard and decided by the trial court. If bond or deposit given by the party availing of the provisional remedy be insufficient or fail  to satisfy the award: Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. 9, Rule 59; Sec. 10, Rule 60)

. Note: Any award of damages for the wrongful issuance of a provisional remedy should be recovered in the same case. The recovery of damages cannot be had in a separate action.

person who has been providing support  pendente lite is not liable therefor, the court

shall order the recipient to return the amounts

already received with interest from the date of 

actual payment, without prejudice to the right of  the recipient to obtain reimbursement in a

separate action from the person legally obliged to give support.

If the recipient fails to reimburse the amount,

the person who provided the same may seek reimbursement in a

separate action from the person legally

obliged to give such support (Sec. 7)

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

CIVIL PROCEDURE

d. Production Order (Riano, Civil Procedure: A Restatement for 

1. NATURE OF PROVISIONAL REMEDIES Q: What are provisional remedies?

the Bar, p. 534-536, 2009 ed.)

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.

2. JURISDICTION OVER PROVISIONAL PROVISIONAL REMEDIES Q: Which court has jurisdiction over applications for provisional remedies? A:

Q: What is the nature of provisional remedies?

Q: What are the purposes of provisional remedies?

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 .)

A: Provisional remedies are resorted to:

XPN: in criminal actions, as long as the civil aspect is

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

1.

To preserve or protect their rights or interests while the main action is pending;

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

2. 3. 4.

To secure the judgment; To preserve the status quo; To preserve the subject matter of the action.

chastity, “in every case to support the off spring…”)

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)

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?

Q: What are the Other Provisional Remedies available?

A: It is a provisional remedy issued upon order of A:

1. 2. 3.

4. 5.

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 ).

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

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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 .) 117

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UST GOLDEN NOTES 2011

Q: What is the purpose of preliminary attachment?

Q: What are the kinds of attachment? A:

A: Preliminary attachment is designed to:

1.

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 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. L34548, 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 action in rem (Valdemieso v. Damalerio, 451 SCRA 638, February 17, 2005 ).

PRELIMINARY ATTACHMENT (Rule 57)

FINAL ATTACHMENT (Rule 39)

It is an auxiliary remedy

It is a means for the execution of  a final udgment.

Note: Whether in rem or quasi in rem, the legal effects

There is no sale because the decision has not yet been rendered. the Resorted to at commencement of  the action or at any time before the entry of  the udgment, for temporary seizure of the property of  the adverse party The proceeds of the sale, in cases allowed, are in

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.

118

to give security for a  judgment still to be rendered.

custodial egis (Sec. 11)

always be It should accompanied by a sale at public auction. Available after the udgment in the main action had become executor, and for the satisfaction of  said udgment.

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

b.

A:

1.

Actions for the recovery of a specified amount of money or 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 .).

XPN:

moral and exemplary damages o against a party who is about to depart from the Philippines which intent to defraud his creditors 2. 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 3. 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 4. 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 5. Actions against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors 6. 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 ). o

Q: When may an order for preliminary attachment be applied? A: The writ may be applied:

1. 2.

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 are the requisites in the application for a writ of preliminary attachment? A:

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

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

At the commencement of the action, or At any time before entry of judgment (Sec. 1, Rule 57 ).

c. ISSUANCE AND CONTENTS; AFFIDAVIT AND BOND

b. REQUISITES

1.

To answer for all costs and damages

Q: What is the basis of the bond’s amount? A: The bond shall answer for:

1. 2.

All the costs which may be adjudged to the adverse party; and 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: 119

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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.

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.

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)

2.

3. 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?

Enforcement of the writ of preliminary attachment must be preceded by or simultaneously A:

120

4.

5.

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 Personal property capable of manual delivery  –  sheriff taking into custody and safely keeping it, he wll issue a receipt; Stocks, shares or interest  –  Leaving copy of the writ and notice of attachment with President or Managing Agent 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 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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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

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. e.

f. DISCHARGE OF ATTACHMENT OF ATTACHMENT AND COUNTERBOND

f. Q: How is attachment discharged?

g. A:

1.

2.

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 ).

No ground for attachment ( Sec. 1, Rule 57 ) Property is exempt from execution (Secs 2 and 5, Rule 57 ) Judgment is rendered against the attaching creditor (Sec. 19, Rule 57 ) Dissolution of attachment 1 month next preceding the commencement of insolvency proceedings (Insolvency Law) ( Feria, Civil  Procedure Annotated, Vol. II, p. 305, 2001 ed.)

2. 3.

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.

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 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.

Q: What are the grounds for the discharge of a preliminary attachment?

A: AAA’s motion should be granted since the filing

of a counterbond does not constitute a waiver of  VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

4.

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 

4. PRELIMINARY INJUNCTION a. DEFINITION AND DIFFERENCES: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING

Readycon Trading and Construction Corp., G.R. No. 154106, June 29, 2004 )

g. SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED

Ordinary execution.

ORDER Q: What is an injunction? A: It is an ancillary or preventive remedy where a

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 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;

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

INJUNCTION AS A MAIN ACTION

Independent action

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 (Cortezv. Heirs of  Estrada Domingo Samut, 451 SCRA 275, February  14, 2005).

Seeks a  judgment embodying a final injunction, to enjoin the from the defendant commission or continuance of a specific act, or to compel a particular act in violation of the rights of the  Almeida v. CA, applicant ( Almeida 448 SSCRA 681, January  17, 2005).

Q: What are the distinctions among a preliminary injunction, prohibition and status quo order? A: Injunction

Prohibition

Directed against a party in an action

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

122

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 .) .)

Special Civil Action / Main action

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

CIVIL PROCEDURE

b. REQUISITES

Q: Distinguish a preliminary injunction from a temporary restraining order. A: Preliminary Injunction

Q: What are the requisites for the grant of a writ of preliminary injunction? Temporary Restraining Order of  preliminary Specie

A:

1.

injunction to maintain status quo before the resolution of the writ of  preliminary injunction on the ground of irreparable injury

2.

3.

Note: Injury is irreparable if 

it is not susceptible to mathematical computation (DFA and BSP v. Falcon and 

4.

XPNs:

a.

BCA Int’l Corp., G.R. No. 176657, September 1, 2010)

Effective during the pendency of the action unless earlier dissolved 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 quasiudicial agency shall decide the main case or petition within six (6) months from the issuance of  the writ. Note: The

(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 issued by CA – 60 days from notice 3. If issued by SC  – until lifted

5.

Can be issued to compel the performance of an act

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)

Final Injunction (Injunction as main action)

Order granted at any stage of the action or proceeding prior to the udgment 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)

Issued after final udgment of the case permanently the restraining defendant or making the preliminary injunction permanent (Sec. 9, Rule 58)

GR: Bond is required XPN: Exempted by court

No bond is required

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.)

TRO is deemed automatically lifted after the expiration of  the effectivity period GR: Notice and hearing

Note:

Notice and hearing always required ( Sec. 5, Rule 58)

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

(Sec. 4, Rule 58)

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

Q: What are the kinds of preliminary injunction? A: Preventive / Prohibitory Injunction

Mandatory Injunction

Requires a person to

Requires the performance of  a particular act To restore status quo

refrain from doing an act

To preserve status quo

compel the performance of 

an act

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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. 2. 3. 4.

5. 6. 7.

8. 9.

10.

124

In petitions for relief from judgment entered through FAME; In petitions for certiorari, prohibition, and mandamus; In actions for annulment of judgments obtained through fraud; 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 ); To restrain continued breach of valid negative obligation; To enjoin repeated trespass on land; To restrain city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such; To restrain voting of disputed shares of stocks; To restrain sheriff from selling property on execution not belonging to judgment debtor; 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.

Against Department of Public Works and Highways to stop government infrastructure projects (Secs. 3 & 4, RA8975) XPNs:

a. b.

2. 3. 4.

Extreme urgency 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). 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)

5. 6.

7.

8.

9.

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: UIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; ADVISER: JUDGE MYRA B. Q UIAMBAO 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, R ONN 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 asserts having possession ownership thereto (Almeida v. CA and Sy, G.R. No. 159124, January 17, 2005) XPN:

11.

12.

13.

14.

a. Forcible entry and unlawful detainer cases  – preliminary mandatory injunction may be issued (Sec. 15, Rule 70) 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; When action for damages would adequately compensate injuries caused (Golding v. Balatbat, 36 Phil.941); To prevent directors from discharging their offices and restoring former directors; To restrain criminal prosecution where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction.

1.

Insufficiency of application for injunction or restraining order 2. Issuance or continuance of injunction or restraining order causes irreparable injury while applicant may be fully compensated for damages by bond 3. Extent of injunction or restraining order is too great Effect: modification 4. 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.

20 days from notice :

if  great or irreparable injury would result to the applicant before the matter can be heard on notice.

2.

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: 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. 2.

Clear legal right of the applicant The commission, continuance or nonperformance of  the act or acts complained of will cause injustice to t he 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

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 Fa rmers 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?

be automatically vacated. (Bacolod City  A: It will 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) VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS C HAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

125

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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 o n 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.

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

126

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

XPN: Consented to by all parties

b. REQUISITES

Note: A clerk of court cannot be appointed as a receiver ( Abrigo v. Kayanan, G.R. No. L-28601, March 28, 1983)

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. 2.

Court where action is pending Court of Appeals or Supreme Court or a member thereof  Note: During pendency of appeal, appellate court may allow receiver to be appointed by court of origin

2.

3. 4. 5.

Q: What is the effect of a contract executed by a receiver without court approval?

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: 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 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)

Note: The court may require an additional bond for further security. (Sec. 2, Rule 59)

a. CASES WHEN A RECEIVER MAY BE APPOINTED Q: In what cases may a receiver be appointed?

d. POWERS OF A RECEIVER

A: (Sec. 1, Rule 59)

1.

2.

3. 4.

5. 6.

7.

Q: What are the powers of a receiver?

Applicant has an interest in the property or fund subject of the action is in danger of being lost, removed, or materially injured Mortgaged property is in danger of being dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or Stipulation in the contract of mortgage To preserve the property after judgment during the pendency of the appeal or to dispose it according to judgment To aid execution when execution has been returned unsatisfied Judgment debtor refuses to apply his property in satisfaction of the judgment or to carry on the judgment Appointment of receiver is most convenient and feasible means of preserving, administering or disposing of the property in litigation

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

A: (Sec. 6, Rule 59)

1.

2. 3. 4.

5. 6. 7. 8.

9.

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 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; 127

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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.

2.

3. 4.

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) 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 )

5.

Receiver no longer necessary ( Sec. 8, Rule 59)

Q: How is receivership terminated? A: (Sec. 8, Rule 59)

1. 2.

3.

By court motupropio or on motion by either party 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 ) After due notice and hearing to all interested party

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 replevin from preliminary attachment. A: Replevin

Recovery of possession of  personal property is the principal relief and damages are incidental This is available before

defendant files an answer

Preliminary Attachment Available even if  recovery of personal property is only an

incidental relief  Available from commencement but before entry of 

 judgment 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

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 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

Sheriff does not take possession of the property attached except contructively

placing it under custodia legis.

to the party who obtained

6. REPLEVIN

the writ. Bond to be posted is double the value of the

Q: What is replevin?

property sought to be 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

recovered

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. Q UIAMBAO, 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, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

Note: These remedies cannot be availed of in the

1.

same case. 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.

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

3.

4.

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.

Q: What are the contents of the affidavit?

Wearever Textile Mills Inc. GR No L- 58469, May 16, 1983).

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.

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: What is redelivery bond?

Q: Can a writ of replevin be issued anywhere in the Philippines?

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).

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.

Q: When is it required? A: It is required that the redelivery bond be filed

International Corporate Bank now Union Bank of the Philippines, GR No 131283, October 7, 1999 ).

within the period of 5 days after the taking of the property. The rule is mandatory (Yang vs. Valdez, 177 SCRA 141) .

b. REQUISITES 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

A:

1.

Q: What are the contents of the affidavit?

2.

A: (Sec. 2, Rule 60) VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Serve a copy of the court order, application, affidavit and bond upon the adverse party Take the property and retain it in his custody 129

U N I V E R S I T Y O F  S A N T O T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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?

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

A:

1.

Filing of a redelivery bond double the value of the property

2.

Plaintiff’s bond is insufficient or defective

3.

and is not replaced with a proper bond Property is not delivered to the plaintiff for any reason

Special Civil Action Must be based on a Cause not of  action cause of action – act necessarily needed omission or in Examples: violation of the rights 1. Declaratory  relief   – of another action is brought before

there is any breach 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 2.

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 in filed Municipal Trial Court or the Regional Trial Court depending upon the  jurisdictional amount or nature of  the action May be commenced May be commenced by the only by the filing of  filing of a complaint or petition complaint 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. Q UIAMBAO, 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, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

8. 9.

Partition (Rule 69) Forcible entry and unlawful detainer (Rule 70) 10. Contempt (Rule 71)

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.

Q: What are the three special civil actions which are within the jurisdiction of inferior courts?

Where the petitioner or the respondent resides

No. 110249, Aug. 14, 1997)

A:

Expropriation

1.

2. 3.

Interpleader, provided that the amount is within the jurisdiction of such inferior court Ejectment suits Contempt

RTC (incapable of  pecuniary estimation) (Barangay San Roque v. Heirs of Pastor, G.R. No. 138896, June 20, 2000)

RTC: if it is directed against a municipal trial court, a corporation, a board, an officer or a person.

A:

2.

Personal property: the place where the plaintiff 

or defendant resides Certiorari, Prohibition, Mandamus

Q: What special civil actions are initiated by complaints and initiated by petitions?

1.

Land: where the property is located

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

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.

3. JURISDICTION AND VENUE

In election cases involving an act or

Q: Who has jurisdiction over special civil actions and where should it be filed?

omission of MTC /RTC, it shall be filed exclusively with the COMELEC, in aid of its

A: Jurisdiction

Venue

appellate jurisdiction

Interpleader 

MTC – where the value of the claim or the personal property does not exceed P300,000 or P400,000 in Metro Manila or where the value of the real property 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

(Sec. 4, Rule 65) Quo Warranto

Where the plaintiff or any of the principal plaintiff resides or where the defendant or any of the principal defendants resides

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

Note: The venue of

appellate jurisdiction

special civil actions is governed by the general rules on venue, except as otherwise indicated in the particular rule for said special civil action.

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

resides. When the 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)

131 U N I V E R S I T Y O F  S A N T O T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

Note: Subject to the principle of Hierarchy of 

Courts 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,

MTC, RTC, CA, SC

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. RTC

(incapable of pecuniary estimation)

2.

Real property – where the property is located Personal property  – 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. Heirs of Pastor, G.R. No. 138896, June 20, 2000)

part thereof is located

Q: Distinguish between interpleader and intervention. A: INTERPLEADER

action, Not an original action but ancillary and and mere depends upon the existence of  a precious pending action. Commenced by the Commenced by a motion filing of a complaint. to intervention filed in a pending case attaching thereto the pleading- inintervention. Filed by a person who Filed by a person who has a has no interest in the legal interest in any of the following: subject matter of the action or if he has an a. The subject matter of  interest, the same is the litigation; not disputed by the b. The success of either claimants. 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. are If  a complaintinThe defendants brought into the intervention is filed, the action only because defendants are already they are impleaded as parties to an existing suit such in the complaint. 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. 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 ).

132

INTERVENTION

Special civil independent original

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. Q UIAMBAO, 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, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

2. 3. 4.

b. WHEN TO FILE Q: When must an action for interpleader be filed? A: Within a reasonable time after a dispute has

Cross-claim Third-party complaints Responsive pleadings

Q: May an interpleader be availed of the resolve breach of undertaking?

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. )

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 )

Q: Which court has jurisdiction over an interpleader?

5. DECLARATORY RELIEF AND SIMILAR REMEDIES

A: Inferior courts have jurisdiction so long as the

amount involved is within their jurisdiction Q: What is a declaratory relief? Q: Should there be service of summons in interpleader?

A: A special civil action brought by a person

and such answer must be served upon the plaintiff and co-defendants. (Sec. 5, Rule 62).

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: Summons and copies of the complaint and order shall be served upon conflicting claimants. ( Sec. 3, Rule 62) Note: Claimants shall have 15days to file an answer

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:

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 )

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.

Q: What are the grounds for filing a motion to dismiss?

A: A: (Sec. 4, Rule 62 )

1. 2.

Impropriety of the interpleader action 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)

DECLARATORY JUDGMENT

ORDINARY JUDGMENT

Declaratory  judgment stands by itself and no executory process follows Intended to determine any question of  construction or validity breach or prior to violation

Ordinary  judgment involves executor or coercive relief  Intended to remedy or compensate injuries already suffered

a. WHO MAY FILE THE ACTION

Q: What are the other allowed pleadings in an interpleader?

Q: Who may file an action for declaratory relief? A: (Sec. 5, Rule 62 )

1.

A: Any person:

Counterclaim

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

133

U N I V E R S I T Y O F  S A N T O T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

1. 2.

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

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

Q: What are the requisites of an action for declaratory relief?

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.

A:

769, 2005 ed.)

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

Q: Can the court exercise discretion in application for declaratory relief? A:

1. Note: The enumeration of the subject

3. 4.

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 .) 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.

2.

Board of Accountancy, G.R. No. L-3062, September 28, 1951 )

5.

6.

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;

d. CONVERSION TO ORDINARY ACTION

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

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) .

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. Q UIAMBAO, 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, R ONN 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.

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: 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: When may an instrument be reformed?

Q: What are the instances wherein a declaratory relief is unavailable?

A: The instrument may be reformed if it does not A:

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) .

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 re al party in interest; and 11. Where the administrative remedies have not yet been exhausted.

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).

e. PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES Q: What are the similar reliefs referred to under Rule 63?

(2) CONSOLIDATION OF OWNERSHIP

A:

1. 2. 3.

Q: What is the purpose of an action brought to consolidate ownership?

Reformation of an instrument Quiet title to real property or to remove clouds Consolidation of ownership ( Art. 1607, Civil Code)

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,

(1) REFORMATION OF AN INSTRUMENT Q: What is meant by reformation of instrument? VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

135 U N I V E R S I T Y O F  S A N T O T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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.

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

Q: What is an action for quieting title to real property?

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

Note: The order to comment under Sec. 6, Rule 64 in

(3) QUIETING OF TITLE TO REAL PROPERTY

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) . Q: Is it required that the plaintiff be in the possession of the property before an action is brought?

136

A: The plaintiff need not be in possession of the real

case the Supreme Court finds the petition sufficient in form and substance is equivalent to summons in ordinary civil action. 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). 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

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

aggrieved party may file aggrieved party will have the petition within the another 60 days within remaining period, but which to file the petition which shall not be less counted from the notice than 5 days. of denial.

Q: When may the court issue an order to comment?

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) A:

Q: What are basic requirements for the petition?

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

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.

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  udgments, final orders or resolutions of COMELEC and COA Filed within 30 days from notice of  udgment, 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

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).

The COMELEC and COA shall be public respondents who are impleaded in the action

a. APPLICATION OF RULE 65 UNDER RULE 64 Q: Distinguish Rule 64 from Rule 65.

The filing of MNT or MR, if allowed under the procedural rules of  the Commission, shall interrupt period fixed

A: Rule 64

Directed only to the  judgments, final orders or of  resolutions 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, or board officers  judicial or exercising quasi-judicial functions; Must be filed within 60 days from notice of   judgment or resolution If MR is denied, the

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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  udgment, 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 urisdiction and power of review 137

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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 ) Note: Interlocutory orders must be assailed under Rule 65, not Rule 64 2. Payment of docket and other lawful fees (Sec. 4, Rule 64 )

Q: What are the grounds for the outright dismissal of the petition? A: (Sec. 6, Rule 64)

1. 2. 3.

Petition is not sufficient in form and substance (Sec. 5, Rule 64 ) Petition was filed for purpose of delay Issue is unsubstantial

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.

2. 3.

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 Statement of facts, issues, grounds for review, arguments and relief prayed for 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 ar e 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 thecommanding a tribunal,commanding a tribunal, corporation, board proceedings of  a tribunal, board orcorporation, 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 udicial functions when such tribunal, udicial or ministerial functions, to performance of an act which the law board or officer has acted without or desist from further proceedingsspecifically 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 a dequate remedy in with grave abuse of  discretionor in excess of its urisdiction, o the ordinary course of law; or amounting to lack or excess of with abuse of its discretion, there (b) When one unlawfully excludes another urisdiction, 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 udicial or quasi-judicial functions, udicial or quasi-judicial functions ministerial duties or ministerial functions

138

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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 Extends to discretionary acts Only against a respondent exercising  judicial or quasi-judicial functions

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 c ollect 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 and

Only for ministerial acts

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.

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. 2.

3.

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.

4.

CERTIORARI  Q: What is certiorari ? A: A writ issued by a superior court to an inferior

court, board or officer exercising judicial or quasi judicial functions whereby the reco rd of a particular case is ordered to be elevated for review and correction in matters of law.

5.

Note: An original action for certiorari, prohibition, and

mandamus is an independent action. As such, it does not interrupt the course of the principal.

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 ?

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

The courts have concurrent jurisdiction, however, petitions are subject to the rule on hierarchy of courts.

A:

(Microsoft Corp. vs. Best Deal Computer Center Corp., GR 148029, Sept. 24, 2002; Estrera vs. CA, GR 154235,  Aug. 16, 2006).

Q: Does the filing of a petition for certiorari  interrupt the running of the reglamentary period?

Q: Define the following. A: No. The rule is the same for prohibition and mandamus since the remedies under Rule 65 are

A:

1.

independent actions.

 Judicial function – is where the tribunal or

person has the power to determine what VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

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?

Q: Distinguish certiorari  under Rule 65 and certiorari under Rule 45. A: Rule 65

Rule 45

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, 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.

GR: Findings of fact of CA

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 quasi judicial agency is not impleaded Motion reconsideration required

for is

not 

a If  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 The court is in the  jurisdiction exercise of its appellate  jurisdiction and power of  review. Filed with the RTC, CA, Filed with the SC Sandiganbayan or COMELEC

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

140

A: 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 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. Q UIAMBAO, 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, R ONN 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

PROHIBITION

Directed only to the party litigants, without in any manner interfering with the court.

Directed to court itself, commanding it to cease from the exercise of a urisdiction to which it has

b. REQUISITES CERTIORARI

no legal claim.

That the petition is directed against a tribunal, board or officer exercising  judicial or quasi judicial functions;

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

Quo Warranto

Available against the holder of an office, who is the person claiming the

office

as

against not necessarily the one who excludes the petitioner 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

PROHIBITION

The petition is directed against a tribunal, corporation, board or person exercising udicial, quasiudicial, or ministerial functions; The tribunal, The tribunal, board or officer corporation, has acted board or person without, or in must have acted excess of  without or in  jurisdiction or excess of  with abuse of  urisdiction or discretion with grave abuse amounting to of discretion lack or excess or amounting to lack  jurisdiction of jurisdiction; There is no There is no appeal or any appeal or any plain, speedy and plain, speedy and adequate adequate remedy remedy in the in the ordinary ordinary course course of law. of law. Accompanied by Accompanied by a certified true a certified true copy of the copy of the  judgment or udgment or order subject of  order subject of  the petition, the petition, copies of all copies of all pleadings and pleadings and documents documents relevant and relevant and pertinent thereto, pertinent thereto, and and sworn sworn certification of  certification of  non-forum non-forum shopping under shopping under Rule 46. Rule 46.

Q: What is the function of writ of prohibition?

Available when one is unlawfully excluded from the use or enjoyment of  an office against a person who is responsible for excluding the petitioner

ministerial duty To prevent an act to maintain the status quo between the parties

injunction

Ordinary civil action Directed against a litigant

MANDAMUS

The plaintiff has a clear legal right to the act demanded;

It must be the duty of the defendant to perform the act, which is ministerial and not discretionary, because the same is mandated by law; The defendant unlawfully neglects the performance of  the duty enjoined by law; There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.

Q: What are the requisites of a valid certiorari ? A:

1. 2.

For the defendant either to refrain from an act or to perform not necessarily a legal and

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

There must be a controversy; Respondent is exercising judicial or quasi judicial functions; 141

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UST GOLDEN NOTES 2011

3.

Respondents acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of  jurisdiction; and 4. There must be no appeal or other plain, speedy and adequate remedy. (Sec. 1,

A:

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 .)

Rule 65) 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: GR: Prohibition does not ordinarily lie to restrain an act which is already  fait accompli .

A: Sec. 2, Rule 65

1. 2.

There must be a controversy Respondent is exercising judicial, quasi judicial 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?

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)

A: Sec. 3, Rule 65

1. 2. 3. 4.

5.

There must be a clear legal right or duty The act to be performed must be within the powers of the respondent to perform; The respondent must be exercising a ministerial duty The duty or act to be performed must be existing (a correlative right will be denied if not performed by the respondent) There is no appeal or other plain, speedy and adequate remedy in the ordinary course of law

Q: What are the grounds for mandamus? A:

1.

2.

c. WHEN PETITION FOR CERTIORARI , PROHIBITION AND MANDAMUS IS PROPER Q: What are the grounds for the filing of a petition for certiorari ?

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:

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

GR: Mandamus will not issue when

administrative remedies are still available.

XPN:

1.

Veterans Backpay Commission, G.R. No. L12944, Mar. 30, 1959 ); or

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?

142

If the party is in estoppel (Vda. de Tan v.

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. Q UIAMBAO, 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, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

Raises only questions of  law;

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 par ticular manner. Q: May the CA award damages in mandamus proceedings? A: Yes. The CA in resolving a petition for mandamus

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; udgment or order subject of the petition unless enjoined or restrained; Parties are the original The tribunal, board, officer parties with the a ppealing exercising judicial or quasiparty as the petitioner and udicial 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.

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  Certiorari as a Special Civil Appeal (Rule 45) Action (Rule 65) Called petition for review A special civil action that is on certiorari, is a mode of  an original action and not a

appeal, which is but a continuation of the appellate process over the original case; Seeks to review final  judgments or final orders;

mode of appeal, and not a part of the appellate process but an independent action.

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

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

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Raises questions of  urisdiction because a tribunal, board or officer exercising judicial or quasiudicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of  discretion amounting to lack of jurisdiction;

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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 writMandamus 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 exercisingboard or person, to do an act required to commission or continuance of a  judicial, quasi-judicial or ministerialbe 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 usurpation or assumption of jurisdiction; a ministerial and legal duty;

For the defendant either to refrain from an act or to perform not necessarily a legal and ministerial duty;

May be directed against entities exercising judicial or quasi-judicial, or ministerial functions

May be directed against judicial and non- Directed against a party judicial entities

Extends to discretionary functions

Extends only to ministerial functions

Always the main action

Always the main action

May be brought in the Supreme Court, Court of Appeals, Sandiganbayan, or in the Regional Trial Court which has  jurisdiction over the territorial area where respondent resides.

May be brought in the Supreme Court, Court of Appeals, Sandiganbayan, or in the Regional Trial Court which has  jurisdiction over the territorial area 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:

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. GR:

4. 5. 6.

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

7. 8.

Does not necessarily extend to ministerial, discretionary or legal functions; May be the main action or just a provisional remedy May be brought in the Regional Trial Court which has jurisdiction over the territorial area where respondent resides.

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. Q UIAMBAO, 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

CIVIL PROCEDURE

9.

Issue raised is one purely of l aw 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 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.

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).

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?

h. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES

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.

Q: What is the rule on acts or omiss ions 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,

Note: It is commenced by a verified petition brought in

Rule 65, As amended by AM No. 07-7-12-SC, Dec. 12, 2007)

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)

i. WHERE TO FILE PETITION Q: When and where to file petition?

Q: What are the classifications of quo warranto proceedings?

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 .

A:

1.

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)

 j. EFFECTS OF FILING OF AN UNMERITORIOUS PETITION Q: What is the effect of a petition for certiorari , prohibition or mandamus which is patently VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Mandatory – brought by the Solicitor

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UST GOLDEN NOTES 2011

protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25, 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

1929).

b. WHEN GOVERNMENT COMMENCE AN ACTION AGAINST INDIVIDUALS c. WHEN INDIVIDUAL MAY COMMENCE AN ACTION Q: Who commences the action? A:

1.

who was legally

appointed and entitled to the office.

a. DISTINCTION FROM QUO WARRANTO UNDER OMNIBUS ELECTION CODE

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

Quo Warranto In Electoral Proceedings

3.

To contest the right of  an elected public officer to hold public office.

Q: Against whom a quo warranto may be filed? A: The action must be filed against:

Grounds: ineligibility or disqualification to hold the office

1.

2.

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

Petition must be filed within 10 days from the proclamation of the candidate.

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.

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

146

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.

3.

A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; 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 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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

Manila. Is the contention of Cars Co. correct? Why?

Q: What are the requisites of a valid 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.

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 A: It is the right of the State to acquire private Q: What is the effect of a judgment in Quo Warranto case?

property for public use upon the payment of just compensation.

A; When the respondent is found guilty of usurping,

Q: When is expropriation proper?

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) .

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.

e. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE

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).

Q: What are the rights of persons adjudged to be entitled to the office?

b. TWO STAGES IN EVERY ACTION FOR EXPROPRIATION

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

Q: What are the two (2) stages in expropriation proceedings? A:

1.

the books and papers in the respondent’s

3.

custody or control appertaining to the office to which the judgment relates; and may bring an action against the respondent to recover damages sustained by such persons by reason of usurpation.

2.

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

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. VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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.

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

overruled or when no party appears to object to or to defend against the expropriation ( Sec 4, Rule 67 ).

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.

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 )

Q: What is the duty of the court if the defendant waives his defenses or objections?

g. ASCERTAINMENT OF JUST COMPENSATION

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: 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?

Q: How may appeal be taken from an order of expropriation by the party aggrieved thereby?

A:

JC = FMV + CD  – CB A: It may be appealed by the defendant by record  on appeal . This is an instance when multiple

If CB is more than CD then, JC = FMV

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

JC – Just compensation FMV – Fair market value CD – Consequential damages CB – Consequential benefits

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.

Note:Sentimental value is not computed.

Q: What is the effect if the order of condemnation was reversed?

Q: What is the reckoning point for determining  just compensation?

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)

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)

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.

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 

No. L-6191, Jan. 31, 1955).

f. ORDER OF EXPROPRIATION Q: What is an order of expropriation?

Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010).

A: An order of expropriation (or order of

Note:

Typically, the time of taking is contemporaneous with the time the petition is filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10,

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

2009)

XPNs:

1. VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Grave injustice to the property owner 

149 U N I V E R S I T Y O F  S A N T O  T O M A S

VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011

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 Mateo owners. (Heirs of 

2.

Pidacan&RomanaEigo v. Air Transportation Office, G.R. No. 162779,  June 15, 2007)

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.

The taking did not have color of legal authority 

Caro de Araullo, G.R. No. L-36096, Aug. 16, 1933)

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 introduced by “improvements” 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)

3.

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.

4.

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 o bjections (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 ).

(Tan v. Republic, G.R. No. 170740, May 25, 2007)

Q: When should the commissioner make a report?

The owner will be given undue increment advantages because of the expropriation

A: The court may order the commissioners to

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

150

h. APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

a. JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE

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).

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).

i. RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT Q: What are the rights of the plaintiff after payment?

Q: When is the sale of mortgaged property proper and how must it be brought about?

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.

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

 j. EFFECT OF RECORDING OF JUDGMENT

“upon motion of the mortgagee” (sec 3, rule 68)

Q: What is the effect of the recording of the  judgment?

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.

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 ).

b. SALE OF MORTGAGED PROPERTY Q: What is the effect of confirmation of the sale?

10. FORECLOSURE OF REAL ESTATE MORTGAGE

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)

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 said that title vests in the purchaser upon a

valid confirmation of the sale and retroacts to the date of sale.

Note: It is commenced by a complaint setting forth the

c. DISPOSITION OF PROCEEDS OF SALE

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). VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

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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. 1.

Q: What claims shall be satisfied from the proceeds of the public sale of the mortgaged property (in order)? A:

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 foreclosure from extrajudicial foreclosure. A: Judicial Foreclosure Governed by Rule 68

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Extrajudicial Foreclosure Governed by Act 3135

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

There is only an equity of  redemption except when the mortgagee is a bank

Requires court intervention Mortgagee need not be given a special power of 

attorney.

appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R.

Right of redemption exists

No. 73341, Aug. 21, 1987)

11. PARTITION

No court intervention necessary Mortgagee is given a

Q: What is partition?

special power of attorney in the mortgage contract

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) .

to foreclose the 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

Note: It is commenced by a complaint. (Sec.1, Rule 69)

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

Q: What are the requisites of a valid partition? A:

1. 2.

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 

3.

(Sec. 1, Rule 69)

trust under which the property is sold to redeem

a. WHO MAY FILE A COMPLAINT; WHO SHOULD BE MADE DEFENDANT

the property within 1 year   from the registration of the Sheriff’s certificate of   foreclosure sale

Q: Who may file and who should be made defendants?

Governed by Secs. 29-31, Rule 39

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.

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.

Q: What is the effect of non-inclusion of a coowner in an action for partition? A:

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 VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

1.

Before  judgment  – not a ground for a

2.

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. 153

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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?

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 t hat directs the

parties or co-owners to partition the property 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.

1 4

Order determining the propriety of the partition

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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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

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).

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.

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

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.

12. FORCIBLE ENTRY AND UNLAWFUL DETAINER f. JUDGMENT AND ITS EFFECTS a. DEFINITIONS AND DISTINCTION Q: What should the judgment contain and its effects?

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.

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) .

Note: It is commenced by a verified complaint. (Sec. 1)

Q: What are the requisites of a valid forcible entry? A:

1.

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.

2.

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)

g. PARTITION OF PERSONAL PROPERTY

Q: What is unlawful detainer?

Q: What is the rule on partition of personal property?

VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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)

A: It is unlawful detention by a person who has acquired possession rightfully, but who detains the

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UST GOLDEN NOTES 2011

force, intimidation,

strategy, threat

the possession of the property under his

or stealth.

contract with the plaintiff.

No previous demand for

Demand is jurisdictional if  the ground is non-

the defendant to vacate the premises is necessary.

failure to comply with the

property after the right to keep possession has ended.

Note: It is commenced by a verified complaint. (Sec. 1)

Q: What are the requisites of a valid unlawful detainer?

payment of rentals or lease contract.

The plaintiff must prove that he was in prior

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).

physical possession of the premises until he was

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.

possession.

deprived thereof by the

defendant. The 1 year period is generally counted from the date of actual entry on

the land.

Period is counted from the date of last demand or last letter of demand.

b. DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION REINVINDICATORIA Q: What are the possessory actions on real property? A: Accion Interdictal

Accion Publiciana

Summary action for the

A plenary action

recovery of  physical possession where the disposses-sion

of possession when the

has not lasted for more than 1 year.

All cases of  forcible entry and unlawful detainer irrespective of  the amount of 

damages or

Note: If only rents or damages are claimed in an

The plaintiff need not have been in prior physical

unpaid rentals sought to be recovered should be

brought to the MTC.

for the recovery of the real right

dispossession has lasted for more than 1

year. 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.

Accion Reinvindicatoria 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. MTC has  jurisdiction if the value of the

property does not exceed the

above amounts.

Note: Forcible entry and unlawful detainer actions are

A: Forcible Entry (Detentacion)

Possession of the land by the defendant is unlawful

Unlawful Detainer (Desahucio) Possession is inceptively

from the beginning as he

lawful but it becomes illegal by reason of the

acquires possession by

termination of his right to

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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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

A: The only pleadings allowed to be filed are the

Q: What rule should govern the proceedings of accion interdictal ?

complaint, compulsory counterclaim and crossclaim pleaded in the answer, and the answers thereto. All pleadings shall be verified (Sec. 4, Rule 70).

A: GR: Ejectment cases are summary proceedings

intended to provide an expeditious means of protecting actual possession or right to possession of property.

f. ACTION ON THE COMPLAINT

XPN: When the decision of the MTC is appealed

Q: What action will the court make upon receipt of the complaint?

to the RTC, the applicable rules are those of the latter court (Refugia v. CA, G.R. No. 118284, July  5, 1996).

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) .

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) .

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.

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) .

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

e. PLEADINGS ALLOWED

Q: Can the court grant injunction while the case is pending?

Q: What are the pleadings allowed?

A: The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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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. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN 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.

(Sec. 3)

Q: Distinguish direct from indirect contempt? A: Direct Contempt Committed in the presence of or so near a court.

If committed against: 1. RTC  –  fine not

exceeding P2,000 imprisonment exceeding 10 days both. 2. MTC  –  fine not exceeding P200 imprisonment exceeding 1 day, both.

Q: Distinguish criminal contempt from civil contempt.

Indirect Contempt Not committed in the presence of the court.

A: Criminal Contempt

Punished after being charged and heard

Summary in nature

IF COMMITTED AGAINST : 1. RTC  – FINE NOT

or

EXCEEDING P30,000

not

OR

or 2.

or not

or

Remedy:Certiorari or prohibition Contempt in  facie curiae

6

MTC  – fine not exceeding P5,000 imprisonment or not exceeding 1

Remedial in nature

Purpose is to

Purpose is to provide a remedy for an injured suitor

and to coerce compliance with an order for the

punish disobedience of its orders

preservation of the rights of 

Intent is necessary

Intent is not necessary

month or both Remedy: Appeal (by notice of appeal) Constructive contempt

Civil Contempt

Punitive in nature

preserve the court’s authority and to

IMPRISONMENT

NOT EXCEEDING MONTHS 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

State is the real prosecutor

private persons

Instituted by the aggrieved party or his successor or someone who has pecuniary interest in the right to be protected

Q: What are the grounds of contempt?

Proof required is proof beyond

A:

1.

Direct contempt 

a.

b. c. d.

2.

reasonable doubt.

Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings Disrespect towards the court Offensive personalities toward others; or 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)

If accused is acquitted, there can be no appeal.

mere preponderance of  evidence If judgment is for

respondent, there can be an appeal

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?

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. VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

Proof required is more than

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 159

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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

2.

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?

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.

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.

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

160

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 fo r

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, 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. J UANENGO; MEMBERS: AKEMI B. A IDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE  E. DUMLAO, KRISTINE P. M IJARES, D ONNA  GRAGASIN, EDELISE D. P INEDA, SHERY  PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, R ONN ROBBY D. ROSALES

CIVIL PROCEDURE

pursuant to law, Rule 71 shall apply suppletorily (Sec 12, Rule 71)

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).

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).

e. HOW CONTEMPT PROCEEDINGS ARE COMMENCED

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?

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).

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.

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)

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.

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.

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

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 VICE CHAIR FOR MANAGEMENT AND  FINANCE: JEANELLE C. LEE ACADEMICS  CHAIR: LESTER JAY ALAN E. FLORES II VICE CHAIRS FOR ACADEMICS : KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ