MELO NOTES ON PROVISIONAL REMEDIES

PROVISIONAL REMEDIES

LCP 2014A

What are provisional remedies? Provisional means temporary, preliminary or tentative. They are temporary, auxiliary and ancillary remedies available to a litigant for the protection and preservation of his rights while the main actions are pending (Riano, p.532; Tan v. Andre, 450 SCRA 145). What is the purpose of provisional remedies? (a) To preserve or protect a partys rights or interests while the main action is pending; (b) To secure the judgment; (c) To preserve the status quo; (d) To preserve the subject matter of the action. What court grants provisional remedies? The court with jurisdiction over the main action may grant the provisional remedy. What are the kinds of provisional remedies? Under the 1997 Rules of Court, and jurisprudence, the following are the kinds of provisional remedies: (a) (b) (c) (d) (e) (f) Preliminary attachment (Rule 57); Preliminary injunction (Rule 58); Receivership (Rule 59); Replevin (Rule 60); Support pendente lite (Rule 61); Remedies other than those specified in Rules 57-61, as the list is not exclusive, such as special proceeding of custody of minors to grant parent visitation rights and/or temporary custody of the child (Sec. 6, Rule 99, RoC; Tan v. Andre) (g) Deposit, granted by court in the exercise of its equity jurisdiction in a contract to sell a piece of land where the buyer asked the amount already paid to be deposited with the court (Reyes v. Lim, 408 SCRA 560); (h) Interim reliefs during a petition for a writ of amparo: Temporary Protection Order, Witness Protection Order, Inspection Order, Production Order (Sec 14 & 15, Rules on the Writ of Amparo; Riano, 534-536) [See Riano]; RULE 57: PRELIMINARY ATTACHMENT What is preliminary attachment? It is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may 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). Attachment places the property under the custody of the court (custodia legis). It is in a quasi in rem proceeding or action in rem. The legal effect is the same. Jurisdiction is acquired over the res and not the defendant. Is issuance of the writ mandatory? No. Grant of the writ is discretionary on the part of the court who also considers the principal case when determining the propriety of the writ (Riano, 556-557). What is the legal basis to grant a writ of preliminary attachment? Rule 57 of the Rules of Court and Art. 1177 of the Civil Code. It is a purely statutory remedy which cannot exist without a statute granting it. What are the grounds for issuance of the writ? Section 1. Grounds upon which attachment may issue. At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-

MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action 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 any other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action 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; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; [Most abused ground] (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. What are the requisites for the issuance of the writ (Riano 555)? (a) The case is one where preliminary attachment is proper; (b) The applicant must file a motion, with notice and hearing or ex parte; (c) The applicant shows by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced, or the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims; (d) The applicant posts a bond executed to the adverse party [attachment bond] to answer for all damages incurred by the party against whom the attachment was issued and sustained by him by reason of the attachment. Who may apply for a writ of attachment? The plaintiff, defendant or any other proper party (See Sec 1 Rule 57). When do you apply for the writ? At the commencement of the action or at any time before entry of judgment. May the writ be issued ex parte? Yes. The writ may be granted upon motion and notice and hearing by the court or ex parte by the court. What are the stages in the grant of the preliminary attachment? First Court issues order granting application Second Writ is issued pursuant to order granting it Third Writ is implemented after court acquires jurisdiction over the defendant How do you prevent issuance of the writ? (a) deposit an amount equal in value to the bond fixed by the court in the order of attachment or an amount equal to the value of the property to be attached, exclusive of costs; (b) by giving a counterbond executed to the applicant, in an amount equal to a bond he posted or to the value of the property, exclusive of costs (Sec 2 & 5, R57). How can you have the writ discharged? Writ enforced File motion to discharge attachment. Notice and Hearing. Post cash deposit or counterbond. Motion to set aside or discharge the attachment and during hearing of motion allege

MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A
(a) the attachment was improperly or irregularly issued (Sec. 13, R 57) (b) bond of attaching creditor is insufficient (c) attachment is excessive and must be discharged as to the excess (Sec 13, R57) (d) property is exempt from execution, and thus from preliminary attachment (Sec. 2, R57) Motion for intervention. File an affidavit of third party claim with the sheriff the property is yours and not the property of the defendant. (Sec. 14, R57) Melo Note: This should be your first remedy as other actions might be premature. Does not become a party to the case by this. This is a matter between you and the sheriff.

What are the kinds of attachment? KIND PARTIES Preliminary attachment Garnishment Against those whom the writ is directed. The plaintiff, defendant, and third person called garnishee who holds the defendants property or owes the defendant money.

COURT
POSSESSION

TAKES

WHEN ISSUED Start of action or before entry of judgment Start of action or before entry of judgment

YES. NO. Garnishee maintains possession but he is directed by the court to maintain the status quo. Jurisdiction over him is done by service of writ of garnishment YES. This is a preliminary step towards an execution sale of the property.

Levy on execution

Plaintiff and obligor.

judgment

After judgment

In what cases may preliminary attachment issue? Those cases enumerated in Section1, Rule 57, Rules of Court. May damages be awarded for wrongful attachment? Yes. May property in custodia legis be attached? Yes. After proper notice to the proper notice to the court or quasi-judicial agency and the custodian of the property is given (Riano 560, quoting Sec. 7 last par. Rule 57). The attachment operates as a lien on the property. May property previously attached be again attached? Yes. There will only arise a priority of liens on the property, with the first attachment garnering priority over subsequent attachments. What are the remedies of third persons as to the property attached (Ching v. CA, Riano 561-563)? (a) terceria, make an affidavit of his right to possession or title and serve it on the sheriff and attaching party; (b) motion for intervention with court that issued writ of attachment; (c) file separate action to nullify the levy with prayer for damages from the unlawful levy and seizure. (d) Affidavit filed with the sheriff (Sec. 14, R57).

MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

May property subject of writ, while the main action is pending, be sold? General Rule: NO. Exception: when it shall be made to appear to the court in which the action is pending, upon notice and hearing to both parties, that the attached property is perishable or that the interests of all the parties to the action will be subserved by the sale of the attached property (Sec. 11, R57; China Banking Corporation v. Asian Corporation and Development Corporation). BOND secure attachment, in favor of plaintiff COUNTERBOND securing judgment, in favor of defendant

WHAT KIND OF DAMAGES MAY BE AWARDED? KIND YES/NO ACTUAL YES.

WHEN ALWAYS. o PETITIONER COSTS OF SUIT o DEFENDANT loss of profits premiums paids/security paid to surety company fact property is encumbered anything that might have been suffered by defendant (1) bad faith; or (2) malicious intent

MORAL EXEMPLARY

YES. YES.

MELO NOTES ON PROVISIONAL REMEDIES

RULE 58 : PRELIMINARY INJUNCTION

LCP 2014A

What is preliminary injunction? It is an ancillary or preventive remedy where a court requires a person, party, court or tribunal either to refrain from or to perform particular acts during the pendency of an action. It is a temporary remedy subject to the final disposition of the principal action (Dungog v. CA, 408 SCRA 267). Issued to the court to prevent threatened or continuous irreparable injury to parties before their claims can be thoroughly studied and adjudicated. Sole objective is to preserve the status quo until the merits of the case can be heard fully (MIAA v. Rivera Village Lessee Homeowners Association Inc., 471 SCRA 358). It is a preservative remedy for the protection of substantive rights or interests (Republic v. Evangelista, 466 SCRA 544). When may a writ of preliminary injunction be granted? Section 3 of Rule 58, RoC, provides that the writ may be granted in the following instances: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually; That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

(b)

(c)

Who may issue the preliminary injunction? Any court, in CA & SC, different procedure since a lone justice may issue a preliminary injunction. At what stage of the proceedings may the writ be granted? At any stage or time prior to the judgment or final order (Sec. 1, Rule 58, RoC). Injunction (main action) Independent action. Seeks an action embodying a final injunction. Preliminary injunction Incident to a principal action. Seeks to preserve the status quo until the merits can be heard. Purpose is to enjoin the defendant from the commission or continuance of a specific act or to compel a particular act in violation of the rights of the applicant. Ex: Injunction against the sale of a piece of land under litigation.

Ex: Injunction under Art. 26 of Civil Code, against prying into privacy of anothers residence, or meddling with or disturbing anothers private or family relations. Writ secured before finality of judgment. Sec. 1 Rule 58 File with RTC, since an action for injunction is one incapable of pecuniary estimation

Is issued as a judgment, making the injunction permanent. Sec. 9 Rule 58 File with court where the main action is pending, including MTC or MeTC; If filed with SC or CA the writ may be issued by the SC or any member thereof, or CA or any member thereof (Sec. 2, Rule 58).

MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

What is the purpose of preliminary injunction? It is 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 main action (Cortez-Eztrada v. Heirs of Domingo/Antonia Samut, 451 SCRA 275). What is the status quo? It is the last, actual, peaceable and uncontested situation which precedes the controversy the situation preceding the filing of the case. The injunction should not establish new relations between the parties but only maintain or re-establish the pre-existing relationship (Riano 568). What is a status quo order (Regalado 734)? In the nature of cease and desist order, does not direct the doing or undoing of acts; Does not require the posting of a bond; Issued motu propio by the court when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected parties neither sought relief nor did the allegations in his pleading sufficiently make out a case for a TRO; What are the kinds of injunction? Prohibitory Injunction Purpose is to prevent a person from the performance of a particular act. Act has not yet been performed. Status quo is observed.

Mandatory Injunction Purpose is to require a person to perform a particular act. Act has already been performed and has violated the rights of another. The status quo is restored.

What effect does a mandatory injunction have? It does not, in a sense, preserve the status quo since it commands the performance of specific acts (Riano 568). It is more cautiously regarded than prohibitory injunction. It is only issued in a clear case, free from doubt or dispute, cases of extreme urgency where the right of the applicant is clear (Riano 568; China Banking Corp. v. Co, G.R. No. 174569, 17 September 2008). Prohibitory injunction Provisional remedy Directed to party litigant Issued to require party to refrain from a particular act Prohibition Special civil action Directed to tribunal, corporation, board or officer Seeks a judgment commanding a tribunal, corporation, board or officer to desist from further proceeding in the action because [GADLEJ] a) It has no jurisdiction b) Acting in excess of jurisdiction c) Gravely abused its discretion amounting to lack of jurisdiction May be on the ground the court acted without or in excess of jurisdiction Always a main action

Injunction does jurisdiction of court

not

involve

Injunction may be main action, or provisional remedy (as in this case) Mandatory injunction Provisional remedy Directed to party litigant Issued to require a party to perform an act to restore the last peaceable

Mandamus Special civil action Directed to tribunal, corporation, board, officer or person performing a ministerial duty Seeks a judgment commanding a tribunal, corporation, board,

MELO NOTES ON PROVISIONAL REMEDIES

uncontested status preceding the controversy officer or person performing a ministerial duty required to be performed by law

LCP 2014A

Is a restraining order different from an injunction? YES. It is only temporary or provisional. Also referred to as temporary restraining order. A restraining order is intended only as a restraint upon the defendant until the propriety of granting an injunction, temporary or perpetual, can be determined, and it does no more than restrain the proceedings until such determination (Regalado 733, citing Blacks Law Dictionary, 4th Ed.) The court in Anglo-Fil Trading Corp. v. Lazaro (G.R. No. 54958, 2 September 1983) adopted this definition. It is intended to restrain upon the defendant until the propriety of granting an injunction pendent lite can be determined, and it goes no further than to preserve the status quo until such determination. The grant, denial, or lifting of the restraining order does not preempt the courts power to decide the issue in the main action the injunction suit. According to the case of Simpas v Adil (1975), if the restraining order is effective for more than one month it is no longer temporary, it becomes semi-permanent akin to a preliminary injunction, thus abusing its original purpose. What are the requisites for the issuance of the writ of preliminary injunction or TRO? 1) Verified application (Sec. 4, Rule 38), absence of such makes the application insufficient in form and substance (Rivera v. Mirasol); 2) Applicant has a right to relief, right in esse or right to be protected and the act the injunction is directed at is violative of such right; 3) There is a need to restrain the commission or continuance of the acts complained of and if not enjoined would work injustice to applicant; 4) Applicant posts a bond in an amount fixed by the court, unless exempted by the court, to be liable for damages which the party enjoined by the preliminary injunction may suffer if the court decides the applicant was not entitled to the writ; 5) Notice and summons served to the defendant, if application of writ is included with complaint, as well as applicants affidavit and bond. Notice to refers also that notice must be given and the complaint and application shall be raffled off only in the presence of the defendant; 6) Hearing on the application; 7) Applicant provides proof of legal right and injury sustained. When is injury irreparable? If it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law (Ollendorf v. Abrahamson, 38 Phil. 585). There is no standard by which their amount can be measured with reasonable accuracy, it is not susceptible of mathematical computation (SSC v. Bayona, et al., L13555, 30 May 1962). What is the quantum of evidence required? Prima facie right is needed at the hearing to show that the applicant has an ostensible right to the final relief prayed for in his complaint (Republic v. Evangelista). Evidence need only be a sampling of the evidence of justification for a preliminary injunction pending the decision on the merits (Sps. Nisce v. Equitable PCI-Bank). Why is there a requirement of notice and hearing? A preliminary injunction cannot be issued without a prior notice and hearing, as required by Sec. 5, Rule 58 of the RoC. It cannot be issued ex parte. When may the issuance of the writ be refused, or the writ dissolved (Sec. 6 & 7, R58, RoC)? (a) The complaint is insufficient; (b) The defendant is permitted to post a counter-bond, it appearing that he would sustain great damage while the plaintiff can be amply compensated; (c) On other grounds, as where the bond posted by the applicant turned out to be insufficient or defective. Does the dissolution issue as a matter of course after filing the counter-bond?

MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

NO. The court still has to determine and assess the probable relative damages and weight whether the defendant would sustain great damage while the plaintiff can be amply compensated (Director of the Bureau of Telecommunication v. Aligaen, L-31135, 29 May 1970). Must the motion for dissolution be verified? YES. A motion for the dissolution of the writ of preliminary injunction must be verified (Canlas v. Aquino, L-168115, 24 July 1961). QUERY In a case, judge is in charge of case for illegal possession of explosives. He fails to inhibit himself. A petition for prohibition is applied and granted by the CA. A bond is posted concurrent therewith. Issue: Will the bond answer for damages in case the case is later dismissed or the petitioner loses the case? Held: See Lim v. Callejo (1981): NO. Bond will not answer for damages. Judge Callejo was made respondent in the special civil action for prohibition in his official capacity as judge of the Municipal Court of Balabac and not as private person. Consequently, any damage or expense incurred by him in connection with the case would be official in nature and for which no fund of private origin has to answer. Thus, such portion of the appealed order which held the cash bond posted by Lim answerable for whatever damages Judge Callejo may claim should be set aside. The posting of said bond should not have been ordered in the first place, as no private person would be prejudiced by the preliminary injunction. CLASS LECTURE What must be proven? Requisites (1) actual existing legal right [not inchoate or contingent; not moral/natural/etc] (2) invasion [can prove the invasion is actual, imminent]

(3) damage irreparable [cannot be repaired, compensated by payment of damages; Strike a balance between alleging substantial damage and alleging irreparable damage; youre basing part of it on some conjecture, on something nebulous] Species of injury that ought not be submitted to on one hand or inflicted on the other is of such constant & frequent recurrence that no fair or reasonable redress can be had

TRO v. INJUNCTION Requisites are the same Period As a rule, can TRO be issued ex parte? GEN: NO EXC: one exception, 3-day TRO issued by executive judge, during exceptional circumstances PROCESS: RTC Complaint (specific allegation; attach proof) => executive judge => w/in 24 hours notify parties for conference and raffle =>raffle to branch or Pres. J => summary hearing, w/in 3 days decide =20d TRO => sked hearing on writ of PI (present witnesses; writ effective for as long as action is pending) Why executive judge acts on TRO? Complaint has not been raffled yet Will not even conduct summary hearing Will look at complaint and see if 3-day TRO is deserved PROCESS

MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

PROCESS: CA o May be issued by single justice or by a division o Even a single justice may issue TRO, if prove cannot get it from division in a timely manner, but the justice must submit TRO to division ASAP to be reviewed o Has revised internal rules on issuance of TROs o 60 days PROCESS: SC o TRO indefinite or until further orders o Any justice may issue, but as a matter of courtesy to peers he has to consult with division members at the earliest opportunity o Same rules/requisites

When is damage irreparable? Is there irreparable damage in cases of unfair competition or infringement of trademarks or copyrights? YES. According to IP Code. Irreparable damage Must be difficult or incapable of pecuniary estimation Usual mistake of litigants, eager to show the damage they give an amount, only showing that damage is not irreparable (as in the SSC case) Ollendorf case: By irreparable injury is not meant such injury as is beyond the possibility of repair or compensation in damages, or great injury or great damage, but that kind of injury, whether great or small, that ought not to be inflicted, of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in a court of law (Gilchrist vs. Cuddy (29 Phil. rep., 542, 552 citing Wahle vs. Reinbach (76 Ill., 322)). o The admitted fact that plaintiff has failed to establish proof of pecuniary damage by reason of the breach of the contract by defendant by the acts committed prior to the issuance of the preliminary injunction is, of course, a bar or nay money judgment for damages for the breach of the contract, but will not justify us in permitting defendant to continue to break his contract over plaintiff's objection. The injury is a continuous one. The fact that the court may not be able to give damages for that part of the breach of the contract which had already taken place when its aid was invoked is no reason why it should countenance a continuance of such disregard of plaintiff's rights. o With respect to the contention that an injunction may only be granted to prevent irreparable injury, the answer is that any continuing breach of a valid negative covenant is irreparable by the ordinary process of courts of law. As stated by High, (vol. 2, p. 906) injunctive relief is granted in cases like this "upon the ground that the parties cannot be placed in status quo, and that damages at law can afford no adequate compensation, the injury being a continuous one irreparable by the ordinary process of courts of law 2 kinds of irreparable damage What if Ms Garcia is a klepto, she steals my ballpen every meeting, is that irreparable damage? YES. Though there can be compensation in the form of damages, it is not only that. It is that species of damage where the injury being a continuous one irreparable by the ordinary process of courts of law. Otherwise you would have to file a case for each time she steals a ballpen. When does injunction end? Upon dismissal or earlier (because of change in circumstances) If case is won by plaintiff it can be a permanent injunction Is a status quo order in the nature of a TRO? Melo Note: I dont know. For me if theres an agreement there is basis to force parties to enforce it, but it does not constitute a process of the court. What if RTC grants TRO effective for 25 days? Is TRO invalid? Not invalid as a whole, only invalid as to the excess (NEA case). Is the posting of a bond a substantial requirement for TRO?

MELO NOTES ON PROVISIONAL REMEDIES

LCP 2014A

Melo Note: Mere procedural requirement. No law which requires party to give a bond. Everything in the bond is provided in the rules. In other jurisdictions, like in Singapore, bond is not required. Malice or lack of good faith is not an element of recovery on the bond (Limitless case).

Can the court moto propio deny the application for TRO/Injunction even without calling a hearing (Bataclan case)? GEN: Must call hearing, when there is prima facie case on pleading EXC: When the insufficiency for the calling of the hearing is apparent from the pleading itself When can cases not be issued? Infrastructure projects (limited, since only SC may issue injunction) Cannot issue to restrain implementation of CARP Cannot enjoin Meralco from disconnecting, unless you put up a bond, RA 7832 Collection of taxes (NIRC, Sec. 219) [why? Lifeblood doctrine] Melo Note: Way around is assail some other collateral matter to prevent government from collecting or assessing tax; you can assail the basis of the tax Constitutional offenses, cannot restrain the constitution, exc. Is Brocka case Preliminary mandatory injunction Required to do something Courts are stricter with this Changes the present situation between the parties Improper to be issued prior to final hearing before the end of the case [talks on mandatory injunction in decision] EXCEPT in cases of extreme urgency where the relative inconvenience. Relative inconvenience, theory of relative hardships Capitol Medical Center Inc case Teacher strike, during the strike they were joined by the students School operations completely stopped and school forced to close down The next sem, students asked school to reopen, filed case to compel the school to reopen, claim they have a contract, asked for a preliminary injunction, RTC granted SC said, status quo was there was no school, only reason there was no school was because of your own fault. You cannot now ask the court to undo what you yourself have done. Clean hands doctrine. When usually granted? To restore electrical service Art 539 Civil Code: right of possessor to be respected in his possession MIDTERMS 40& MCQ 60% ESSAY Make answers short, directly, concisely

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