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2012

UP L AW BAR REVIEWER

REMEDIAL
LAW
REMEDIAL LAW TEAM 2012 Subject Head |Eden Catherine Mopia Civ Pro Subject Heads | Gianna De Jesus Samantha Sy Subject Writers | Marijo Alcala Jian Boller Althea Oaminal Giselle Mauhay Zharmai Garcia Tina Reyes Joseph Go II Marie Cristine Reyes Nickie Bolos Mae Ann Acha Ma-anne Rosales Jill Hernandez Gene Lopez Joanne Batimana LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible Noel Luciano RM Meneses Jenin Velasquez Mara Villegas Naomi Quimpo Leslie Octaviano Yas Refran Cris Bernardino Layout Head| Graciello Timothy Reyes

Civil Procedure
BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao Mark Xavier Oyales | Acads Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Miranda (D) |Special Lectures Patricia Madarang Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo Jose Lacas |Logistics Angelo Bernard Ngo Annalee Toda|HR Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Krizel Malabanan Karren de Chavez |Bar Candidates Welfare Karina Kirstie Paola Ayco Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano Katrina Rivera |Hotel Operations Marijo Alcala Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva Charlaine Latorre |Food Kris Francisco Rimban Elvin Salindo |Transpo Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

REMEDIAL LAW REVIEWER

Civil Procedure
REMEDIAL LAW
Criminal Procedure Civil Procedure Evidence Special Proceedings

General Principles Jurisdiction I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. Actions Cause of Action Parties to Civil Actions Venue Pleadings Summons Motions Dismissal of Actions Pre-Trial Intervention Subpoena Modes of Discovery Trial Demurrer to Evidence Judgments and Final Orders Post-Judgment Remedies Execution, Satisfaction and Effect of Judgments XVIII. Provisional Remedies XIX. Special Civil Actions

(2) (3) (4) (5) (6)

Land registration cases, Cadastral cases, Naturalization cases, Insolvency proceedings Other cases not herein provided for

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Except by analogy or in a suppletory character and whenever practicable and convenient [Rule 4, Sec. 4] Prospectivity/Retroactivity The Rules of Court are not penal statutes and cannot be given retroactive effect [Bermejo v Barrios (1970)]. Rules of procedure may be made applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. [In the Matter to Declare in Contempt of Court Hon. Simeon Datumanong (2006)].

B. Substantive Law as Distinguished from Remedial Law


Remedial law or Procedural law provides a method of enforcing the rights established by substantive law; prescribes the method of enforcing rights or obtaining redress for their invasion. [Bustos v Lucero (1948)] Judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. [Fabian v Desierto (1998)] Substantive law is that part of the law which creates, defines and regulates rights concerning life, liberty, or property, or the powers of agencies or instrumentalities for the administration of public affairs [Bustos v Lucero (1948)]

GENERAL PRINCIPLES
A. Concept of Remedial Law B. Substantive Law as Distinguished from Remedial Law C. Rule-making Power of the Supreme Court D. Nature of Philippine Courts

A. Concept of Remedial Law


Concept Remedial statute or statutes: (1) relating to remedies or modes of procedure; (2) do not take away or create vested rights; (3) BUT operate in furtherance of rights already existing. [Riano citing Systems Factor Corporation v NLRC (2000)] The Rules of Court, promulgated by authority of law, have the force and effect of law, if not in conflict with positive law [Inchausti & Co v de Leon (1913)]. The rule is subordinate to the statute, and in case of conflict, the statute will prevail. [Shioji v Harvey (1922)]. Applicability The Rules of Court is applicable in ALL COURTS, except as otherwise provided by the SC [Rule 1, Sec. 2]. It governs the procedure to be observed in civil or criminal actions and special proceedings [Rule 1, Sec. 3]. It does not apply to the following cases: [ELCINO] (1) Election cases,

C. Rule-making Power of the Supreme Court


The Rules of Court was adopted and promulgated by the Supreme Court pursuant to the provisions of Sec 5(5) of Art. VIII of the Constitution, vesting in it the power to: Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. The power to promulgate rules of pleading, practice, and procedure is no longer shared by the Supreme Court with Congress, more so with the executive [Riano citing Echegaray v Secretary of Justice (1999)]

REMEDIAL LAW REVIEWER 1. Limitations on the rule-making power of the Supreme Court
Sec 5(5) of Art. VIII of the Constitution sets forth the limitations to the power: [SUS] - that the rules shall provide a simplified and inexpensive procedure for speedy disposition of cases; - that the rules shall be uniform for courts of the same grade; and - that the rules shall not diminish, increase or modify substantive rights. then pending, EXCEPT to the extent that in the opinion of the Court their application would not be feasible or would work injustice. [Riano citing Rule 114]

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D. Nature of Philippine Courts


1. Meaning of a court
Definition A court is an organ of the government belonging to the judicial department, the function of which is the application of the laws to controversies brought before it (and) as well as the public administration of justice. Generally, the term describes an organ of the government consisting of one person or of several persons, called upon and authorized to administer justice. It is also the place where justice is administered. [Riano citing Blacks and Am. Jur. and C. J. S.]

2. Power of the Supreme Court to amend and suspend procedural rules


Power to amend remedial laws The constitutional faculty of the Court to promulgate rules of practice and procedure necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court. [Pinga v Heirs of Santiago (2006)]. The SC has the sole prerogative to amend, repeal, or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of case [Neypes v CA (2005)] Power to suspend remedial laws It is within the inherent power of the Supreme Court to suspend its own rules in a particular case in order to do justice [De Guia v De Guia (2001)]. When the operation of rules will lead to an injustice or if their application tends to subvert and defeat instead of promote and enhance justice, their suspension is justified [Republic v CA (1978)]. There is no absolute rule as to what constitutes good and sufficient cause that will merit suspension of the rules. The matter is discretionary upon the Court [Republic v Imperial Jr. (1999)]. The bare invocation of "the interest of substantial justice" is not a magic wand that will automatically compel this Court to suspend procedural rules [Ramos v Sps Lavendia (2008)]. Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a party's substantive rights. Like all rules, they are required to be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. [Polanco v Cruz (2009)]. NOTE: Although not laws in the technical sense of the term, Rules of Court, promulgated by authority of law, have the force and effect of law. [Riano citing Shioji v Harvey (1922)] Applicability: Prospective The Rules of Court shall govern cases brought after they take effect, and also all further proceedings

2. Court as distinguished from a judge


Court Tribunal officially assembled under authority of law An organ of the government with a personality separate and distinct from judge An office Judge Simply an officer of such tribunal Person who sits in court

A public officer [Riano]

The circumstances of the court are not affected by the circumstance that would affect the judge. The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it. In other words, the judge may resign, become incapacitated, or be disqualified to hold office, but the court remains. The death of the judge does not mean the death of the court [Riano citing ABC Davao Auto Supply v. CA (1998)].

3. Classification of Philippine courts


NOTE: Please see succeeding discussions on a to d. a. Courts of law and equity b. c. d. e. subsections for

Courts of Original and Appellate jurisdiction Courts of General and Special jurisdiction Constitutional and statutory courts Superior and Inferior courts Superior courts Courts which have the power of review or supervision over another and lower court. Inferior courts Those which, in relation to another court, are lower in rank and subject to review and supervision by the latter. [Regalado] Courts of record and not of record

f.

REMEDIAL LAW REVIEWER


Courts of record Those whose proceedings are enrolled and which are bound to keep a written record of all trials and proceedings handled by them. [Regalado] One attribute of a court of record is the strong presumption as to the veracity of its records that cannot be collaterally attacked except for fraud. All Philippine courts, including inferior courts, are now courts of record. [Riano] Courts not of record Courts which are not required to keep a written record or transcript of proceedings held therein. appropriate courts. [Riano citing Santiago v. Vasquez] The principle is an established policy necessary to avoid inordinate demands upon the Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and to preclude the further clogging of the Courts docket [Lim v. Vianzon (2006)]. When the doctrine/principle may be disregarded: A direct recourse of the Supreme Courts original jurisdiction to issue writs (referring to the writs of certiorari, prohibition, or mandamus) should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. [Mangahas v. Paredes (2007)]. The Supreme Court may disregard the principle of hierarchy of courts if warranted by the nature and importance of the issues raised in the interest of speedy justice and avoid future litigations [Riano].

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4. Courts of jurisdiction

original

and

appellate

Courts of original jurisdiction Those courts in which, under the law, actions or proceedings may be originally commenced. Courts of appellate jurisdiction Courts which have the power to review on appeal the decisions or orders of a lower court. [Regalado]

5. Courts jurisdiction

of

general

and

special

9. Doctrine of non-interference doctrine of judicial stability

or

Courts of general jurisdiction Those competent to decide their own jurisdiction and to take cognizance of all kinds of cases, unless otherwise provided by the law or Rules. Courts of special or limited jurisdiction Those which have no power to decide their own jurisdiction and can only try cases permitted by statute. [Regalado]

6. Constitutional and statutory courts


Constitutional courts Those which owe their creation and existence to the Constitution and, therefore cannot be legislated out of existence or deprived by law of the jurisdiction and powers unqualifiedly vested in them by the Constitution. e.g. Supreme Court; Sandiganbayan is a constitutionally-mandated court but created by statute. Statutory courts Those created, organized and with jurisdiction exclusively determined by law. [Regalado]

The principle holds that courts of equal and coordinate jurisdiction cannot interfere with each others orders [Lapu-lapu Development and Housing Corp. v. Group Management Corp.] The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review [Villamor v. Salas]. The doctrine of non-interference applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is co-equal with the RTC in terms of rank and stature, and logically beyond the control of the latter [Phil Spinster Corp. v. Cagayan Electric Power].

JURISDICTION
A. B. C. D. Jurisdiction over the parties Jurisdiction over the subject matter Jurisdiction over the issues Jurisdiction over the res or property in litigation E. Jurisdiction of Courts F. Jurisdiction over small claims, cases covered by the rules on Summary Procedure and Barangay Conciliation G. Totality Rule
Jurisdiction Jurisdiction is defined as the authority to try, hear and decide a case [Tolentino v. Leviste (2004)]. Judicial power includes the duty of the courts of justice: [Art 8, Sec. 1, Consti] To settle actual controversies involving rights which are legally demandable and enforceable;

7. Courts of law and equity


Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is dispensed with in the same tribunal [U.S. v. Tamparong (1998)]

8. Principle of judicial hierarchy


The judicial system follows a ladderized scheme which in essence requires that lower courts initially decide on a case before it is considered by a higher court. Specifically, under the judicial policy recognizing hierarchy of courts, a higher court will not entertain direct resort to it unless the redress cannot be obtained in the

REMEDIAL LAW REVIEWER


To determine WON there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any government branch/ instrumentality. All courts exercise judicial power. Only the Supreme Court is the court created by the Constitution [Art 8, Sec. 1, Consti]. The Sandiganbayan is a Constitutionally mandated court, but it is created by statute. [PD 1486] - fixed by agreement of the parties; - cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties; - neither can it be conferred by the acquiescence of the court [Regalado citing De Jesus v Garcia (1967)]. - cannot be subject to compromise (Civil Code, Art 2035) Jurisdiction over the subject matter is determined by the allegations of the complaint. It is not affected by the pleas set up by the defendant in the answer or in the answer or in a motion to dismiss. [Sindico v. Diaz (2004)]. Once attached to a court, it cannot be ousted by subsequent statute. - Exception: The statute itself conferring new jurisdiction expressly provides for retroactive effect. [Southern Food v. Salas (1992)] The filing of the complaint or appropriate initiatory pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the subject matter or the nature of the action [CB v. CA (1992)](2008 Bar Exam). - Exception: Non-payment of docket fee does not automatically cause the dismissal of the case on the ground of lack of jurisdiction as long as the fee is paid within the applicable prescriptive or reglementary period, more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment. [Go v. Tong (2003)]

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Jurisdiction in general A. Jurisdiction over the parties


NOTE: The mode of acquisition of jurisdiction over the plaintiff and the defendant applies both to ordinary and special civil actions.

1. How jurisdiction over the plaintiff is acquired


Jurisdiction over the plaintiff is acquired by filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court [Davao Light & Power Co., Inc. v CA].

2. How jurisdiction over the defendant is acquired


Acquired by the (1) voluntary appearance or submission by the defendant or respondent to the court or (2) by coercive process issued by the court to him, generally by the service of summons [de Joya v Marquez (2006), citing Regalado] In an action in personam, jurisdiction over the person is necessary for the court to validly try and decide the case, while in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided the latter has jurisdiction over the res [Alba v. CA].

2. Jurisdiction versus the exercise of jurisdiction


Jurisdiction: the authority to hear and determine a cause the right to act in a case. [Arranza v. BF Homes (2000)]. - Exercise of Jurisdiction.: the exercise of this power or authority Jurisdiction is distinct from the exercise thereof. Jurisdiction is the authority to decide a case and not the decision rendered therein. When there is jurisdiction over the subject matter, the decision on all other questions arising in the case is but an exercise of jurisdiction. [Herrera v Baretto et al (1913)]

B. Jurisdiction matter

over

the

subject

1. Meaning of jurisdiction over the subject matter


Jurisdiction over the subject matter 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 (Riano citing CJS). It is the power to hear and determine cases of the general class to which the proceedings in question belong [Reyes v. Diaz (1941)] How conferred and determined It is conferred only by the Constitution or the law. Jurisdiction CANNOT be:

3. Error of jurisdiction as distinguished from error of judgment


Error of jurisdiction It is one where the act complained of was issued by the court without or in excess of jurisdiction [Cabrera v. Lapid (2006)]. Error of judgment It is one which the court may commit in the exercise of its jurisdiction [Cabrera v. Lapid]. It includes errors of procedure or mistakes in the courts mistakes in the courts findings [Banco Filipino Savings v. CA (2000)]

REMEDIAL LAW REVIEWER


Correctible only by the extraordinary writ of certiorari [Cabrera v Lapid] Renders a judgment void or voidable [Rule 16 Sec. 1, Rule 65] Correctible by appeal [Cabrera v Lapid] Ground for reversal only if it is shown that prejudice has been caused [Banco EspaolFilipino v Palanca (1918)] Earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer. Lack of jurisdiction over subject matter is a ground for a motion to dismiss. If no motion is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer. [Riano citing Sec. 1(b) and 6 of Rule 16]. Jurisdiction over subject matter may be raised at any stage of proceedings, even for the first time on appeal [Calimlim v. Ramirez (1982)]

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4. How jurisdiction is conferred and determined


Jurisdiction being a matter of substantive law, the statute in force at the time of the commencement of the action determines the jurisdiction of the court.

8. Effect of estoppel on objections to jurisdiction


Jurisdiction by estoppel General Rule: Estoppel does not apply to confer jurisdiction to a tribunal that has none over a cause of action. Jurisdiction is conferred by law. Where there is none, no agreement of the parties can provide one. Settled is the rule that the decision of a tribunal not vested with appropriate jurisdiction is null and void. [SEAFDEC-AQD v. NLRC (1992)] Exception: Participation in all stages of the case before the trial court, that included invoking its authority in asking for affirmative relief, effectively barred petitioner by estoppel from challenging the courts jurisdiction. [Soliven v. Fastforms (2004)]

5. Doctrine of primary jurisdiction


Courts cannot and 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, experience and services of the administrative tribunal to determine technical and intricate matters of fact [Paloma v. Mora (2005)]. Objective is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court [Riano citing Omictin v. CA (2007)]

C. Jurisdiction over the issues


The power of the court to try and decide issues raised in the pleadings of the parties [Reyes v. Diaz (1941)] How conferred & determined: - Pleadings filed by the parties, - Agreement in a pre-trial order or stipulation [Rule 18, Sec. 2], or - Implied consent as by the failure of a party to object to evidence on an issue not covered by the pleadings in Rule 10, Sec. 5. [Regalado]

6. Doctrine of adherence of jurisdiction


Also known as doctrine of continuity of jurisdiction The court, once jurisdiction has been acquired, retains that jurisdiction until it finally disposes of the case [Bantua v. Mercader (2001)]. As a consequence, jurisdiction is not affected by a new law placing a proceeding under the jurisdiction of another tribunal, EXCEPT: - where there is an express provision in the statute - the statute is clearly intended to apply to actions pending before its enactment [Riano citing People v. Cawaling]. Jurisdiction being a matter of substantive law, the statute in force at the time of the commencement of the action determines the jurisdiction of the court. [Municipality of Kananga v Madrona (2003)]

D. Jurisdiction over property in litigation

the

res

or

7. Objections to jurisdiction over the subject matter


The Court may ex mero motu, or on its own initiative take cognizance of lack of jurisdiction [Fabian v. Desierto (1998)].

Refers to the courts jurisdiction over the thing or the property which is the subject of the litigation. Acquired either by - actual or constructive seizure by the court of the thing in question, thus placing it in custodia legis (e.g.attachment or garnishment) or - by provision of law which recognizes in the court the power to deal with the property or subject-matter within its territorial jurisdiction (e.g. land registration) [Regalado]

REMEDIAL LAW REVIEWER

Specific jurisdiction

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E. Jurisdiction of Courts
1. Supreme Court
The judicial power shall be vested in one SC and in such lower courts as may be established by law. [Art. 8, Sec. 1, Consti] Powers of the Supreme Court [Art. 8, Sec. 5, Consti] a. EXERCISE original jurisdiction over: Cases affecting ambassadors and other public ministers and consuls; - RTC also has concurrent jurisdiction Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. b. Review/revise/reverse/modify/affirm on appeal or certiorari, final judgments/orders of lower courts In: All cases in which the constitutionality/validity of any treaty, international or executive agreement, law, presidential decree/proclamation/order/ instruction, ordinance or regulation is in question; - NOTE: power of review contemplates the ff courts: CA, Sandiganbayan, CTA, RTC, and other courts authorized by law. All cases involving the legality of any tax /impost /assessment /toll, or any penalty imposed in relation thereto; All cases in which the jurisdiction of any lower court is in issue; All criminal cases in which the penalty imposed is reclusion perpetua or higher; All cases in which only errors/questions of law are involved. Exceptions: [Josefa v. Zhandong (2003)] - The conclusion is grounded on speculations/ surmises /conjectures; - The inference is manifestly mistaken/absurd/impossible; - There is grave abuse of discretion; - The judgment is based on a misapprehension of facts; - The findings of fact are conflicting; - There is no citation of specific evidence on which the factual findings are based; - The finding of absence of facts is contradicted by the presence of evidence on record; - The findings of the CA are contrary to those of the trial court; - The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; - The findings of the CA are beyond the issues of the case; - Such findings are contrary to the admissions of both parties.

Distinction between Questions of Law and Fact [Mendoza vs Salinas (2007)] Question of lawexists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted. Question of factexists when the doubt or query invites calibration of the whole evidence considering mainly the credibility of the witnesses, and the existence and relevancy of specific surrounding circumstances, as well as their relation to each other and to the whole, and the probability of the situation c. Assign temporarily judges of lower courts to other stations as public interest may require, which shall not last 6 six months without the consent of the judge concerned. d. Order a change of venue or place of trial to avoid a miscarriage of justice. e. Promulgate rules on: Protection and enforcement of constitutional rights; Pleading/practice/procedure in all courts; Admission to the practice of law; The Integrated Bar; Legal assistance to the under-privileged. Guidelines on the rules: - Provide a simplified and inexpensive procedure for the speedy disposition of cases; - Uniform for all courts of the same grade; - Not diminish/increase/modify substantive rights. - Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the SC. f. Appoint all Judiciary officials/employees in accordance with the Civil Service Law. Constitutional commissions COMELEC and COA Unless otherwise provided by this Constitution or by law, any decision/order /ruling of each Commission may be brought to the SC on certiorari by the aggrieved party, within 30 days from receipt of a copy thereof. [Art. 9-A, Sec. 7, Consti] CSC - Judgments/decisions/orders are within the exclusive appellate jurisdiction of the CA through Rule 43. [BP 129, as amended by RA 7902] Sandiganbayan - Decisions and final orders of the Sandiganbayan shall be subject to review on certiorari by the SC in accordance with Rule 45 of the Rules. - Whenever, in any case decided, the death penalty shall have been imposed, the records shall be forwarded to the SC whether the accused shall have appealed or nor, for review and judgment. [PD 1606 Sec 7]

REMEDIAL LAW REVIEWER 2. Court of Appeals [Sec. 9, BP 129]


a. ORIGINAL JURISDICTION
To issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs/processes, whether or not in aid of its appellate jurisdiction. Note: former rule only allowed the CA to issue auxiliary writs and processes in aid of jurisdiction. - The power is concurrent with the SC.

3. Court of Tax Appeals [Sec. 7, RA 1125, as amended by RA 9282]


a. Exclusive appellate jurisdiction to review by appeal
Decisions of the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue or other laws administered by the BIR; Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relations thereto, or other matters arising under the National Internal Revenue Code or other laws administered by the BIR, where the National Internal Revenue Code provides a specific period of action, in which case the inaction shall be deemed a denial; Decisions, orders or resolutions of the RTCS in local tax cases originally decided or resolved by them in the exercise of their original or appellate jurisdiction; Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or other money 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 administered by the Bureau of Customs; Decisions of the Central Board of Assessment Appeals 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; Decisions of the Secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the Government under Section 2315 of the Tariff and Customs Code; Decisions of the Secretary of Trade and Industry, in the case of nonagricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping and countervailing duties under Sec 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.

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b. EXCLUSIVE ORIGINAL JURISDICTION


Annulment of RTC judgments.

c. EXCLUSIVE APPELLATE JURISDICTION


Final judgments/decisions/resolutions/orders/awards of: - RTCs; - Quasi-judicial agencies/instrumentalities/ boards/commissions including: o SEC; o Social Security Commission; o ECC; o CSC. Exception: Those falling within the SCs appellate jurisdiction of the Supreme Court in accordance with: - The Constitution; - Labor Code; - BP 129; - Sec. 17, Par. 3(1) and Par. 4(4) of the Judiciary Act of 1948. Review of decisions by the NLRC: [St. Martins Funeral Home vs NLRC (1998)] Supposed appeals from the NLRC to the SC are interpreted and hereby declared to mean and refer to Petitioners for Certiorari under Rule 65. All such petitions should be initially filed in the CA in strict observance of the doctrine on the hierarchy of courts. All special civil actions arising out of any decision or final resolution or order of the NLRC filed with the SC after June 1, 1999 shall not longer be referred to the CA, but shall forthwith be dismissed. Powers of the Court of Appeals Try cases and conduct hearings; Receive evidence Perform any and all acts necessary to resolve factual issues raised, including the power to grant and conduct new trials or further proceedings. Trials or hearings must be continuous and must be completed within 3 months, unless extended by the Chief Justice.

b. Jurisdiction over cases involving criminal offenses:


General rule: Exclusive original jurisdiction over all criminal offenses arising from violations of the National Internal Revenue Code or Tariff and Customs Code and other laws administered by the BIR or the Bureau of Customs

REMEDIAL LAW REVIEWER


BUT! Offenses or felonies where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than P1,000,000.00 or where there is no specified amount claimed shall be tried by the regular Courts and the jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability for taxes and penalties shall at all times be simultaneously instituted with, and jointly determined in the same proceeding by the CTA, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filling of such civil action separately from the criminal action will be recognized. Whenever, in any case decided, the death penalty shall have been imposed, the records shall be forwarded to the SC whether the accused shall have appealed or nor, for review and judgment. [PD 1606 Sec 7]

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a. Original Exclusive Jurisdiction


Violations of RA 3019 (Anti-graft and Corrupt Practices Law); RA 1379 (Forfeiture of Illegally Acquired Wealth); Crimes by public officers or employees embraced in Ch. II, Sec.2 Title VII, Bk. II of the RPC (Crimes committed by Public Officers) namely: - Direct Bribery under Art. 210 as amended by BP 871, May 29, 1985; - Indirect Bribery under Art. 211 as amended by BP 871, May 29, 1985; - Qualified Bribery under Art. 211-A as amended by RA 7659, Dec. 13, 1993; - Corruption of public officials under Art. 212 where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense: o Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 Republic Act No. 6758) specifically including: o Provincial governors, vice-governors, members of the sangguniang panlalawigan, provincial treasurers, assessors, engineers and other provincial department heads; o City mayors, vice-mayors, members of the sangguniang panglungsod, city treasurers, assessors, engineers and other department heads; o Officials of the diplomatic service occupying the position of consul and higher; o Philippine Army and Air force colonels, naval captains and all officers of higher rank; o Officers of the PNP while occupying the position of Provincial Director and those holding the rank of Senior Superintendent or higher; o City and provincial prosecutors and their assistants; officials and the prosecutors in the Office of the Ombudsman and special prosecutor ; o President, directors or trustees or managers of government owned or controlled corporations, state universities or educational institutions or foundations; - Members of Congress and Officials thereof classified as Grade 27 and up under the Compensation and Classification Act of 1989; - Members of the Judiciary without prejudice to the provision of the Constitution; - Chairmen and members of Constitutional Commissions, without prejudice to the provision of the Constitution;

c. Exclusive appellate jurisdiction in criminal offenses:


Over appeals from the judgments, resolutions or orders of the RTCs in tax cases originally decided by them, in their respected territorial jurisdiction. Over petitions for review of the judgments, resolutions or orders of the RTCs in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs and MCTCs in their respective jurisdiction.

d. Jurisdiction over tax collection cases as herein provided:


General rule: Exclusive original jurisdiction in tax collection cases involving final and executory assessments for taxes, fees, charges and penalties: BUT! collection cases where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than P1,000,000.00 shall be tried by the proper MTC, MeTC and RTC

e. Exclusive appellate jurisdiction in tax collection cases:


Over appeals from the judgments, resolutions or orders of the RTCs in tax collection cases originally decided by them, in their respective territorial jurisdiction. Over petitions for review of the judgments, resolutions or orders of the RTCs in the Exercise of their appellate jurisdiction over tax collection cases originally decided by the MeTCs, MTCs and MCTCs, in their respective jurisdiction." NOTE: RA9282 elevated CTAs rank to the level of the Court of Appeals with special jurisdiction.

4. Sandiganbayan [Sec.4 of RA 8249]


Decisions and final orders of the Sandiganbayan shall be subject to review on certiorari by the Supreme Court in accordance with Rule 45 of the Rules.

REMEDIAL LAW REVIEWER


- All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. Other offenses or felonies whether simple or complexed with other crimes committed in relation to their office by the public officials and employees mentioned above; Civil and Criminal Cases filed pursuant to and in connection with EO 1, 2, 14 & 14-A issued in 1986 Petitions for issuance of Writ of mandamus, prohibition, certiorari, habeas corpus, injunction and other ancillary writs and processes in aid of its appellate jurisdiction; - Provided, jurisdiction is not exclusive of the Supreme Court Petitions for Quo Warranto arising or that may arise in cases filed or that may be filed under EO 1, 2, 14 & 14- A OTHERS provided the accused belongs to Salary Grade 27 or higher: - Violation of RA 6713 - Code of Conduct and Ethical Standards - Violation of RA 7080 The Plunder Law - Violation of RA 7659 - The Heinous Crime Law - RA 9160 - Violation of The Anti-Money Laundering Law when committed by a public officer - PD 46 referred to as the gift-giving decree which makes it punishable for any official or employee to receive directly or indirectly and for the private person to give or offer to give any gift, present or other valuable thing on any occasion including Christmas, when such gift, present or valuable thing is given by reason of his official position, regardless of whether or not the same is for past favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions. Included within the prohibition is the throwing of parties or entertainment in honor of the official or employee or his immediate relatives. - PD 749 which grants immunity from prosecution to any person who voluntarily gives information about any violation of Art.210, 211 or 212 of the RPC, RA 3019, Sec.345 of the NIRC, Sec. 3604 of the Customs and Tariff Code and other provisions of the said Codes penalizing abuse or dishonesty on the part of the public officials concerned and other laws, rules and regulations penalizing graft, corruption and other forms of official abuse and who willingly testifies against the public official or employee subject to certain conditions.

b. Appellate Jurisdiction
Over final judgments, resolutions or orders of the RTC whether in the exercise of their original or appellate jurisdiction over crimes and civil cases falling within the original exclusive jurisdiction of the Sandiganbayan but which were committed by public officers below Salary Grade 27.

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5. Regional Trial Courts


a. Exclusive Original Jurisdiction in Civil Cases [Sec. 19, BP 129, Asked in the 2002 Bar Examinations]
Incapable of pecuniary estimation (2000 Bar Exam); - If the action is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and jurisdiction over the action will depend on the amount of the claim. [RCPI v. CA (2002)] - If the basic issue is something other than the right to recover a sum of money, if the money claim is purely incidental to, or a consequence of, the principal relief sought, the action is one where the subject of the litigation may not be estimated in terms of money. [Soliven v. Fastforms (1992)] - If the thing sought to be deposited or consigned is a sum of money, the amount of the debt due is determinable and capable of pecuniary estimation. [Ascue v. CA (1991)] - Action for support is incapable of pecuniary estimation because the court is asked to determine first WON the plaintiff is indeed entitled to support. [Baito v. Sarmiento (1960)] - Action for specific performance is incapable of pecuniary estimation. [Manufacturers Distributors v. Yu Siu Liong (1966)] - The jurisdiction of the respective courts is determined by the value of the demand and not the value of the transaction out of which the demand arose. - The alternative prayer for specific performance is also of the same value, for the alternative prayer would not have been made in the complaint if one was more valuable than the other.[Cruz v. Tan (1950)] - Rescission is a counterpart of specific performance therefore also incapable of pecuniary estimation. [Lapitan v. Scandia (1968)] - Action for declaration of nullity of a deed of partition is incapable of pecuniary estimation. [Russel v. Vestil (1999)] - An action for expropriation is incapable of pecuniary estimation. [Bardillon v. Masili (2003)] Title to, or possession of, real property (or any interest therein) where the propertys assessed

NOTE: Private individuals can be sued in cases before the Sandiganbayan if they are alleged to be in conspiracy with the public officer.

REMEDIAL LAW REVIEWER


value exceeds P20K or P50K (for civil actions in Metro Manila); Exception: Forcible entry into and unlawful detainer of lands/buildings Admiralty and maritime jurisdiction where the demand/claim exceeds P300K or P400K (in Metro Manila); - Maritime and admiralty cases involve trade and transactions in the sea. Maritime jurisdiction includes maritime tort. [Negre v. Cabahug (1966)] Probate (testate and intestate) where the gross value of the estate exceeds P300K or P400K (in Metro Manila); Marriage contract and marital relations;

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d. Exclusive Appellate Jurisdiction [Sec. 22, BP 129]


All cases decided by MeTCs/MTCs/MCTCs in their respective territorial jurisdictions. Metropolitan, Municipal and Municipal Circuit Trial Courts

6. Family Courts
a. Exclusive Original Jurisdiction
Petitions for guardianship, custody of children, habeas corpus in relation to the latter; Petitions for adoption of children and revocation thereof; Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; Petitions for support and/ or acknowledgement; Summary judicial proceedings brought under the Family Code; Petitions for declaration of status of children as abandoned, dependent or neglected children, for voluntary or involuntary commitment of children, and for suspension, termination or restoration of parental authority under PD 603, EO 56 s. 1986 and other related laws; Cases for domestic violence against women and children, as defined therein but which do not constitute criminal offenses subject to criminal prosecution and penalties.

b. General Original Jurisdiction


All cases not within the exclusive jurisdiction of any court/tribunal/person/ body exercising judicial or quasi-judicial functions; Within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations; All other cases where the demand (exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs) or the value of the property in controversy exceeds P300K or P400K in Metro Manila. - The exclusion of the term damages of whatever kind in determining the jurisdictional amount under Sec. 19(8) and Sec. 33 (1) of BP 129, as amended by RA7691, applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However, if the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court.[Admin Circ. 0994] - Actions for damages based on quasi-delicts are primarily and effectively actions for the recovery of a sum of money for the damages suffered because of the defendants alleged tortious acts. This money claim is the principal relief sought, and is not merely incidental thereto or a consequence thereof. [Iniego v. Purganan (2006)]

7. Metropolitan Trial Courts/Municipal Trial Courts


a. Exclusive Original Jurisdiction [Sec. 33, BP 129]
Civil actions and probate proceedings (testate and intestate), including the grant of provisional remedies, where the value of the personal property, estate or amount of the demand does not exceed P300K or P400K (in Metro Manila) (value excludes of interest, damages of whatever kind, attorneys fees, litigation expenses, and costs); - Interest, damages of whatever kind, attorney's fees, litigation expenses and costs shall be included in the determination of the filing fees. - If there are several claims or causes of actions between the same/different parties in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, WON the causes of action arose out of the same/different transactions. Forcible entry and unlawful detainer - If the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without

c. Original Jurisdiction [Sec. 21, BP 129]


Certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; - CONCURRENT jurisdiction with SC and CA Actions affecting ambassadors and other public ministers and consuls. - CONCURRENT jurisdiction with SC

REMEDIAL LAW REVIEWER


deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. - That the MeTC has jurisdiction even in cases where the issue of possession is closely intertwined with the issue of ownership is now a settled doctrine in ejectment proceedings. [Heirs of B. Hernandez v. Vergara (2006)] All civil actions that involve title to, or possession of, real property (or any interest therein) where the assessed value of the property (or interest therein) does not exceed P20K or P50K (in civil actions in Metro Manila). - Value excludes interest, damages of whatever kind, attorneys fees, litigation expenses and costs - If land is not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots. All civil cases subject to summary procedure. other auxiliary writs and processes in aid of its appellate jurisdiction.

b. Concurrent Jurisdiction with Civil Courts


Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an asylum; All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit Court; and All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims Sharia Circuit Courts are courts where Muslims can file cases involving the following: Offenses defined and punished under PD 1083 Disputes relating to : - Marriage - Divorce - betrothal or breach of contract to marry - customary dower (mahr) - disposition and distribution of property upon divorce - maintenance and support and consolatory gifts (muta) - restitution of marital right - Disputes relative to communal properties NOTE: The Sharia District Court or the Sharia Circuit Court may constitute an Agama Arbitration Council to settle certain cases amicably and without formal trial. The Council is composed of the Clerk of Court as Chairperson and a representative of each of the conflicting parties.

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b. Delegated Jurisdiction in Cadastral and Land Registration Cases [Sec. 34, BP 129]
Lots where there is no controversy/ opposition; or Contested lots the value of which does not exceed P100K. - The value is to be ascertained: o By the claimants affidavit; o By agreement of the respective claimants, if there are more than one; o From the corresponding tax declaration of the real property. - MTC decisions in cadastral and land registration cases are appealable in the same manner as RTC decisions.

8. Shariah Courts
a. Original Jurisdiction (Article 143, CMPL)
All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws; 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; 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; 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 All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all

F. Jurisdiction over small claims, cases covered by the rules on Summary Procedure and Barangay Conciliation
[A.M. No. 08-8-7-SC, the Rule of Procedure for Small Claims Cases effective October 1, 2008]

1. Definition
Small claims courts are courts of limited jurisdiction that hear civil cases between private litigants [Rationale of Proposed Rule].

2. Purpose
The purpose of small claims process is to provide an inexpensive and expeditious means to settle disputes over small amounts [Riano].

REMEDIAL LAW REVIEWER 3. Scope

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This rule governs the procedure in actions before the Metropolitan trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed One Hundred Thousand Pesos (P100,000.00) exclusive of interest and costs. [Sec. 2, Scope]

G. Totality Rule
Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transaction [Riano citing Pantranco North Express v Standard Insurance (2005)]

4. Applicability
The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts shall apply this Rule in all actions which are: purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money, and the civil aspect of criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule of 111 of the Revised Rules of Criminal Procedure. These claims or demands may be: For money owed under any of the following; - Contract of Lease; - Contract of Loan; - Contract of Services; - Contract of Sale; or - Contract of Mortgage; For damages arising from any of the following; - Fault or negligence; - Quasi-contract; or - Contract; The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 of Republic Act 7160, otherwise known as the Local Government Code of 1991. [Sec. 4, Applicability]

CIVIL PROCEDURE

I. ACTIONS
Actions, in general: An ordinary suit in a court of justice by which one party prosecutes another for the enforcement/ protection of a right or the prevention/redress of a wrong [Santos vs. Vda. De Caparas, (1959)] Action vs Cause of action (Asked in the 1999 Bar Exam) Cause of action A cause of action is the basis of the action filed [Rule 2, Sec.1] Fact or combination of facts which affords a party a right to judicial interference in his behalf. [Into vs. Valle (2005)] Action Ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prosecution or redress of a wrong

1. Meaning of ordinary civil actions


An ordinary civil action is one that is governed by the rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]

2. Meaning of special civil actions


A special civil action is one that is subject to the specific rules prescribed for a special civil action; it is also governed by the rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]

5. Prohibited Pleadings
The following pleadings, motions, and petitions shall not be allowed in the cases covered by this Rule: Motion to dismiss the compliant except on the ground of lack of jurisdiction; Motion for a bill of particulars; Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; Petition for relief from judgment; Motion for extension of time to file pleadings, affidavits, or any other paper; Memoranda; Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; Motion to declare the defendant in default; Dilatory motions for postponement; Reply; Third-party complaints; and Interventions. [Sec. 14, Prohibited pleadings and motions]

3. Meaning of criminal actions


A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. [Rule 1, Sec. 3(b)]

4. Civil actions versus special proceedings


A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. [Rule 1, Sec. 3(a) par 1] A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. [Rule 1, Sec. 3 (c)]

REMEDIAL LAW REVIEWER


Distinctions between Civil Actions and Special Proceedings (Asked in the 1998 Bar Exam) Action Special Proceeding As to parties Involves 2 or more Involves at parties least 1 party or 2 or more parties in proper cases As to cause Involves a right May involve a of action and a violation of right, but there such right by the need not be a defendant which violation of this causes some right damage/prejudice upon the plaintiff As to Requires the Requires no formalities application of such legal remedies in formalities, as accordance with it the prescribed may be granted rules upon application As to governing rules As to appeal from an interlocutory order Ordinary rules of procedure Cannot be directly and immediately appealed to the appellate court until after final judgment on the merits Special rules of procedure Can be immediately and directly appealed to the appellate court matter in litigation must also involve any of the following issues: title to, ownership, possession, paritition, foreclosure or mortgage or any interest in real property. (Riano) Real action Ownership or possession of real property is involved Personal action Personal property is sought to be recovered or damages for breach of Contract or the enforcement of a contract are sought Founded on privity of contract Filed in the court where the plaintiff or any of the defendants resides, at the plaintiffs option Mixed action Both real and personal properties are involved

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Founded on privity of real estate Filed in the court where the property (or any portion thereof) is situated

Founded both

on

The rules on venue of real actions govern

6. Local and transitory actions


Local action One that could be instituted in one specific place [2011 Reviewer] Venue depends upon the location of the property involved in the litigation (Riano) Transitory action One that could be prosecuted in any one of several places [2011 Reviewer] Its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff (Riano)

5. Personal actions and real actions


Real Actions: Actions affecting title to or possession of real property, or interest therein. [Rule 4, Sec. 1 par 1] Personal Actions: All other actions are personal actions. [Rule 4, Sec.2] Importance of Distinction: for purposes of determining the venue of the action (Riano) Real actions shall be commenced and tried n the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. [Rule 4, Sec.1] Personal actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant, where he may be found, at the election of the plaintiff. [Rule 4, Sec.2] NOTE: Not every action involving a real property is a real action because the realty may only be incidental to the subject matter of the suit. To be a real action, it is not enough that the action must deal with real property. It is important that the

7. Actions in rem, in personam and quasi in rem


[Riano citing Domagas v. Jensen, (2005) and Biaco v. Philippine Countryside Rural Bank, (2007)] Action in rem Directed against the thing itself Jurisdiction over the person of the defendant is NOT required Action in personam Directed against particular persons Jurisdiction over the person of the defendant is required Action quasi in rem Directed against particular persons Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired

REMEDIAL LAW REVIEWER


Action in rem Action in personam An action to impose responsibility or liability upon a person directly Action quasi in rem A proceeding to subject the interest of a named defendant over a particular property to an obligation/lie n burdening it Deal with the status, 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 interest of all possible claimants [Domagas v. Jensen (2005)] Judgment is binding upon particular persons Ex: Action for partition; action to foreclose real estate mortgage

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A proceeding to determine the state/condition of a thing

II. CAUSE OF ACTION


1. Meaning of cause of action
A cause of action is the act or omission by which a party violates a right of another. [Rule 2, Sec.2] Elements of a Cause of Action [cited in Riano] Plaintiffs legal right; Defendants correlative obligation to respect plaintiffs right; Defendants act/omission in violation of plaintiffs right [Ma-ao Sugar Central v. Barrios (1947)] (Asked in the 1997 Bar Exam). Every ordinary civil action must be based on a cause of action [Rule 2, Sec. 1] A cause of action stems from the sources of obligations under Art. 1156, CC - Law, Contract, Quasi-contract, Acts and omissions punishable by law and Quasi-delict. [Sagrada Orden etc v. National Coconut Corporation (1952)]

2. Right of action versus cause of action [Regalado]


Right of action The 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 Right to sue as a consequence of the delict Whether such acts give him right of action determined by substantive law Cause of action The delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff The delict or wrong Determined by averments in pleading regarding acts committed by defendant the the the the

Judgment is binding on the whole world

Ex: Accion reivindicatoria; annulment of marriage; naturalization proceedings

Judgment is binding only upon parties impleaded or their successors in interest Ex: Action for specific performance; action to recover money or property (real or personal)

NOTE: There can be no right of action without a cause of action being first established [Regalado citing Espaol v. The Chairman of PVA (1985)]

3. Failure to state a cause of action


There is a failure to state a cause of action if the pleading asserting the claim states no cause of action. This is a ground for a motion to dismiss. [Rule 16, Sec.1(g)] It is submitted that the failure to state a cause of action dos not mean that the plaintiff has no cause of action. It only means that the plaintiffs allegations are insufficient for the court to know that the rights of the plaintiff were violated by the defendant. (Riano) There is a failure to state a cause of action if allegations in the complaint taken together, do not completely spell out the elements of a particular cause of action. (Riano)

The question of whether the trial court has jurisdiction depends on the nature of the action, i.e., whether the action is in personam, in rem, or quasi in rem. [Riano citing Biaco v. Philippine Countryside Rural Bank (2007)] The distinction is important to determine whether or not jurisdiction over the person of the defendant is required and consequently to determine the type of summons to be employed. [Riano citing Gomez v. Court of Appeals (2004)]

REMEDIAL LAW REVIEWER


A failure to state a cause of action is not the same as an absence or a lack of cause of action. The former refers to an insufficiency in the allegations of the complaint while the latter refers to the failure to prove or to establish by evidence ones stated cause of action. (Riano) only 1 cause of action arises. [Joseph v. Bautista (1989)] For a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action which is proscribed by Rule 2, Sec. 3 and 4. [City of Bacolod v. SM Brewery (1969)]

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4. Test of the sufficiency of a cause of action


Whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint [Santos v. de Leo (2005)]

6. Joinder and misjoinder of causes of action


Joinder of Cause of Action: It is the assertion of as many causes of action as a party may have against another in one pleading alone. It is also the process of uniting 2 or more demands or rights of action in one action. [Riano citing Rule 2, Sec. 5 and CJS] Purpose: promote the policy on avoiding multiplicity of suits. The rule however is purely permissive as the plaintiff can always file separate actions for each cause of action. [Baldovir vs. Sarte, 36 Phil. 550] Requisites [Rule 2, Sec. 5]: The party joining the causes of action must comply with the rules on joinder of parties; The joinder shall not include special civil actions or actions governed by special rules; Where causes of action are between the same parties but pertain to different venues/jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action are within the RTCs jurisdiction and the venue lies therein; TOTALITY RULE - Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. Misjoinder of causes of action [Rule 2, Sec. 6] Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion or motu propio, be severed and proceeded with separately. There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action (Regalado).

5. Splitting a single cause of action and its effects


Definition: The act of instituting two or more suits on the basis of the same cause of action. [Rule 2, Sec.4] The act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. (Regalado) Effects of splitting a cause of action: [Taken from 2011 Reviewer] The filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. [Rule 2, Sec.4] Filing of the 1st complaint may be pleaded in abatement of the 2nd complaint, on the ground of litis pendentia; or A judgment upon the merits in any of the complaints is available as ground for dismissal of the others based on res judicata. A MTD under Rule 16 Sec. 1(e) or (f) may be filed in order that the complaint may be dismissed. Basis: A party may not institute more than one suit for a single cause of action. [Rule 2, Sec. 3] Purpose [City of Bacolod v. SM Brewery (1969)] To prevent repeated litigation between the same parties in regard to the same subject or controversy; To protect the defendant from unnecessary vexation. Nemo debet vexare pro una et eadem causa (No man shall be twice vexed for one and the same cause); To avoid the costs and expenses incident to numerous suits. A single act/omission can be violative of various rights at the same time, as when the act constitutes juridically a violation of several separate and distinct legal obligations. However, where there is only one delict/wrong, there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person. The singleness of a cause of action lies in the singleness of the delict/wrong violating the rights of a person. If only 1 injury resulted from several wrongful acts,

III. PARTIES TO CIVIL ACTIONS


Requirements for a person to be a party to a civil action: HE MUST BE EITHER [Rule 1, Sec.3]: - A natural person; - A juridical person; o The State and its political subdivisions; o Other corporations, institutions and entities for public interest or purpose, created by law; and

REMEDIAL LAW REVIEWER


o Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member [Art. 44, CC] - An entity authorized by law. o The estate of a deceased person [Limjoco vs. Intestate Estate of Fragante (1948)]; o A political party incorporated under Act 1459 [now BP 68 (Corporation Code)]; o A corporation by estoppel is precluded from denying its existence and the members thereof can be sued and be held liable as general partners. [Riano citing Sec. 21, BP68, The Corporation Code of the Philippines] o A contract of partnership having a capital of P3,000.00 or more but which fails to comply with the registration requirements is nevertheless liable as a partnership to third persons. [Riano citing Art. 1772 in rel. to Art. 1768, Civil Code] o A registered labor union [Sec. 243, PD 442 (Labor Code)], with respect to its property. o A legitimate labor organization may sue and be sued in its registered name. [Riano citing Art. 2429(e), Labor Code] o The Roman Catholic Church has legal capacity to sue. As to its properties, the archbishop or diocese to which they belong may be a party. [Barlin v. Ramirez (1906); Riano citing Barlin v. Ramirez and Versoza v. Fernandez(49 Phil. 627)]. o A dissolved corporation may prosecute and defend suits by or gainst it provided that the suits (i) occur within three years after its dissolution, and (ii) the suits are in connection with the settlement and closure of its affairs. [Riano citing Sec. 122, Corporation Code] HE MUST HAVE THE LEGAL CAPACITY TO SUE; HE MUST BE THE REAL PARTY IN INTEREST. [Berman v. Cheng (2005)] - Only natural or juridical persons or entities authorized by law may be parties in a civil case. - A sole proprietorship is not vested with juridical personality and cannot sue or file or defend an action. - There is no law authorizing sole proprietorship to file a suit. - A sole proprietorship does not possess a judicial personality separate and distinct from the personality of the owner of the enterprise. [Rimbunan v. Oriental (2005)] - An unlicensed foreign corporation is nonetheless permitted to bring suit in the Philippines if it is suing on an isolated transaction. - Thus, the ascertainment of whether a foreign corporation is merely suing on an isolated transaction or is actually doing business in the Philippines requires the elicitation of at least a preponderant set of facts. Note: A foreign corporation may be party to an action in Philippine courts: If licensed to engage in business in the Philippines, it may sue or be sued in our courts; If not licensed, it cannot sue, but it may be sued in our courts; If not engaged in business in the Philippines, it may sue in courts on a single isolated transaction, but it cannot be sued in our courts on such transaction. Lack of legal capacity to sue The plaintiffs general disability to sue, such as on account of minority, insanity, incompetence, lack of juridical personality or any other general disqualifications It can be a ground for a MTD [Rule 16 (1) (d)] Lack of legal personality to sue The plaintiff is not the real party in interest

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It can be used as ground for a MTD based on the failure of complaint to state a cause of action. [Rule 16 (1) (g)]

Parties to a civil action PLAINTIFF One having interest in the matter of the action or in obtaining the relief demanded; the claiming party or the original claiming party and is the one who files the complaint [Riano]; does not exclusively apply to the original plaintiff [Rinao]; may refer to the claiming party, the counter-claimant, the crossclaimant, or the third (fourth, etc.)-party plaintiff [Rule 3, Sec.1] DEFENDANT One claiming an interest in the controversy or the subject thereof adverse to the plaintiff. The term may also include [Rule 3, Sec 1): - UNWILLING CO-PLAINTIFF A party who should be joined as plaintiff but whose consent cannot be obtained. He may be made a defendant and the reason therefore shall be stated in the complaint. [Rule 3, Sec. 10] - The original plaintiff becoming a defendant to the original defendants counterclaim; also refers to the corss-defendant, or the third (fourth, etc.)-party defendant. [Rule 3, Sec 1]

1. Real parties in interest; indispensable parties; representatives as parties; necessary parties; indigent parties; alternative defendants
Real party in interest [Rule 3, Sec.2] - The party who stands to be benefited/injured by the judgment in the suit; - The party entitled to the avails of the suit. Rules: o Every action must be prosecuted or defended in the name of the real party in interest. [Rule 3, Sec.2]

REMEDIAL LAW REVIEWER


o The partys interest must be direct, substantial and material [Sumalo v. Litton (2006)]. o Husband and wife shall sue and be sued jointly, except as provided by law [Rule 3, Sec. 4] o A minor or a person alleged to be incompetent may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. [Rule 3, Sec. 5] o Minors (represented by their parents) are real parties in interest under the principle of intergenerational responsibility. [Oposa v. Factoran (1993)] Note: This doctrine is inconsistent with Rule 3, Sec. 1 which provides that only natural or juridical persons may be parties in a civil action. o If a party becomes incompetent/ incapacitated during the pendency of the action, the action survives and may be continued by/against the incompetent/ incapacitated assisted by his legal guardian or guardian ad litem [Rule 3, Sec. 18] Indispensable parties - An indispensable party is a real party-ininterest without whom no final determination can be had of an action. [Rule 3, Sec.7] - A party who has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting that interest. (Riano) - The joinder of a party becomes compulsory when the one involved is an indispensable party. [Riano citing Rule 3, Sec.7] - A person is NOT an indispensable party if his interest in the controversy or subject matter is separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does not complrete justice between them. (Riano) Representative as parties [Rule 3, Sec. 3] - Those acting in fiduciary capacity, such as a trustee/guardian/executor/administrator or a party authorized by law or ROC. - The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. - An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal. Exception: If the contract involves things belonging to the principal. [Art. 1883, CC] Necessary Party [Rule 3, Sec. 8] - One who is not indispensable but ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action - Indispensable parties v. Necessary parties [taken from 2011 Reviewer and Riano] Indispensable parties [Rule 3, Sec. 7] Must be joined under any and all conditions, his presence being a sine qua non for the exercise of judicial power No valid judgment if indispensable party is not joined. Necessary parties [Rule 3, Sec. 8] Should be joined whenever possible; the action can proceed even in their absence because their interest is separable from that of the indispensable party The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined They are those whose presence is necessary to adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them.

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They are those with such an interest in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence.

- Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader is under obligation to: (i) set forth the name of the necessary party, if known, and (ii) state the reason why the necessary party is omitted. [Riano citing Rule 3, Sec. 9 par 1] - The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party [Rule 3, Sec. 9 par 3] Indigent Party [Rule 3, Sec. 21] - INDIGENT One who has no money or property sufficient and available for food, shelter and basic necessities. - 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. o If the court determines after hearing that the party declared indigent has sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. - The authority to litigate as an indigent shall include an exemption from: o Payment of docket fees and other lawful fees; o Payment of TSN. - The amount of docket and other lawful fees is a lien on any judgment rendered in favor of indigent party, unless court otherwise provides. Alternative Defendants [Rule 3, Sec. 13] - Where the plaintiff is uncertain against whom of several persons he is entitled to relief, he may join any or all of them in the alternative,

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although a right to relief against one may be inconsistent with a right to relief against the other. had been made in the honest conviction that it was proper and the subsequent dropping is requested because it has turned out that such inclusion was a mistake. [Riano citing Lim Tan Hua v. Ramolete(1975)]

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2. Compulsory and permissive joinder of parties


Compulsory joinder of indispensable parties [Rule 3, Sec 7] - Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants Permissive joinder [Rule 3, Sec. 6] - Parties can be joined, as plaintiffs or defendants, in one single complaint or may themselves maintain or be sued in separate suits. Requisites (Regalado): - Right to relief arises out of the same transaction or series of transactions; Note: SERIES OF TRANSACTIONS 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; - Such joinder is not otherwise proscribed by the rules on jurisdiction and venue.

4. Class suit
Requisites [Rule 3, Sec. 12] - Subject matter of the controversy is one of common/general interest to many persons; - The persons are so numerous that it is impracticable to join them all as parties (i.e. impracticable to bring them all before the court); - Parties bringing the class suit are sufficiently numerous and representative of the class and can fully protect the interests of all concerned; - The representative sues/defends for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. [Rule 3, Sec. 12] If a class suit is improperly brought, the action is subject to dismissal regardless of the cause of action [Rule 16, Sec 1 (d)]. A taxpayer's suit or a stockholder's derivative suit is in the nature of a class suit, although subject to the other requisites of the corresponding governing law especially on the issue of locus standi. [Regalado] There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual sugar planters for an allegedly libelous article in an international magazine. There is no common or general interest in reputation of a specific individual. Each of the sugar planters has a separate and distinct reputation in the community not shared by the others. [Riano citing Newsweek, Inc. v. Intermediate Appellate court (1986)] A class suit does not require a commonality of interest in the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation. [Riano citing Mathay v. Consolidated Bank &Trust Company (1974)] Class Suit There is a single cause of action pertaining to numerous persons. Permissive Joinder of Parties There are multiple causes of action separately belonging to several persons.

3. Misjoinder parties

and non-joinder

of

A party is misjoined when he is made a party to the action although he should not be impleaded. A party is not joined when he is supposed to be joined but is not impleaded in the action. (Riano) Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action. [Rule 3, Sec. 11] Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. [Rule 3, Sec.11] Any claim against a misjoined party may be severed and proceeded with separately. [Rule 3, Sec. 11] Non-joinder of an indispensable party is not a ground for outright dismissal. Reasonable opportunity must be given for his inclusion by amendment of the complaint [Cortez v Avila (1957)]. Objections to defects in parties should be made at the earliest opportunity. The moment such defect becomes apparent, a motion to strike the names of the parties must be made. Objections to misjoinder cannot be raised for the first time on appeal [Regalado citing Garcia v Chua]. The rule on misjoinder or non-joinder of parties does not comprehend whimsical and irrational dropping or adding of parties in a complaint. What it really contemplates is erroneous or mistaken non-joinder and misjoinder or parties. The rule presupposes that the original inclusion

CLASS SUIT AND DERIVATIVE SUIT, COMPARED (Asked in the 2005 Bar Examination) CLASS SUIT DERIVATIVE SUIT

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When the subject matter of the controversy is one of common or general interest to many persons, and the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. [Rule 3, Sec. 12] An action brought by minority shareholders in the name of the corporation to redress wrongs committed against it, for which the directors refuse to sue. It is a remedy designed by equity and has been the principal defense of the minority shareholders against abuses by the majority. In a derivative action, the real party in interest is the corporation itself, not the shareholders who actually instituted it [Lim vs. Lim Yu (2001)) - The court may appoint a guardian ad litem for the minor heirs. - The court shall order the legal representative(s) to appear and be substituted within 30 days from notice. - If no legal representative is named or if the one so name shall fail to appear within the specified period, the court may order the opposing party to procure the appointment of an executor or administrator for the estate. - 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 [Ferreria v Vda de Gonzales (1986]. Death or separation of a party who is a public officer [Rule 3, Sec. 17] Requisites: - Public officer is a party to an action in his official capacity; - During the pendency of the action, he either dies/resigns or otherwise ceases to hold office; - It is satisfactorily shown to the court by any party, within 30 days after the successor takes office, o that there is a substantial need to continue/maintain the action and o The successor adopts/continues (or threatens to do so) his predecessors action - The party or officer affected was given reasonable notice of the application therefore and accorded an opportunity to be heard. Action on contractual money claims [Rule 3, Sec. 20] Requisites: - The action must primarily be for recovery of money/debt or interest thereon; - The claim arose from express/implied contract; - Defendant dies before the entry of final judgment in the court in which the action was pending. The defendants death will not result in the dismissal of the action. The deceased shall be substituted by his legal representatives in the manner provided for in Rule 3, Sec. 16, and the action will continue until the entry of final judgment (Asked in the 2000 Bar Exam) However, execution shall not issue in favor of the winning plaintiff. It should be filed as a claim against the decedents estate without need of proving the claim. Transfer of interest during the pendency of the action [Rule 3, Sec. 19] General rule: The rule does not consider the transferee an indispensable party. Hence, the action may proceed without the need to implead him.

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5. Suits against entities juridical personality

without

Requisites [Rule 3, Sec.15] There are 2 or more persons not organized as a juridical entity; They enter into a transaction; A wrong is committed against a 3rd person in the course of such transaction. Effect: Persons associated in an entity without juridical personality may be sued under the name by which they are generally/commonly known, but they cannot sue under such name. [Rule 3, Sec. 15] The service of summons may be effected upon all the defendants by serving upon any of them, or upon the person in charge of the office or place of business maintained under such name. [Rule 14, Sec. 8]

6. Effect of death of party litigant [this


section is taken from the 2011 Reviewer] Substitution of parties Death of a party, where the claim is not extinguished by the death of the party (e.g. cases involving property and property rights [Bonilla v Barcena (1976)]); [Rule 3, Sec. 16] (Asked in the 1998 and 1999 Bar Exams) - Counsels duty: o Inform court within 30 days after such death of the fact thereof; o Give the name and address of the legal representatives. Note: Failure to comply with this duty is a ground for disciplinary action. - The heirs may be substituted for the deceased without requiring the appointment of an executor or administrator.

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Exception: When the substitution by or joinder of the transferee is ordered by court. - The case will be dismissed if the plaintiffs interest is transferred to defendant unless there are several plaintiffs, in which case the remaining plaintiffs can proceed with their own cause of action.

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3. Venue of personal actions


At the plaintiffs election: [Rule 4, Sec. 2] Where the plaintiff or any of the principal plaintiffs resides; Where the defendant or any of the principal defendants resides; In case of a non-resident-defendant, where he may be found.

IV. VENUE
Venue is the place, or the geographical are where an action is to be filed and tried. In civil cases, it relates only to the place of the suit and not to the jurisdiction of the court. [Riano citing Manila Railroad Company v. Attorney General, (1911)]

4. Venue of actions against nonresidents [Rule 5, Sec. 3] [also taken


from 2011 Reviewer]
Non-resident found in the Philippines - For personal actions Where the plaintiff resides; - For real actions Where the property is located. Non-resident not found in the Philippines An action may be filed only when the case involves: - Personal status of plaintiff - Where plaintiff resides; - Any property of said defendant located in the Phil. - Where the property (or any portion thereof) is situated/found.

1. Venue versus jurisdiction [Riano]


Distinctions between Venue and Jurisdiction (Asked in the 2006 and 2008 Bar Exams) Venue Jurisdiction Place where the action is Power of the court to instituted hear and decide a case May be waived Jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot-be waived Procedural Substantive May be changed by the Is fixed by law and written agreement of the cannot be the subject of parties the agreement of the parties Establishes a relation Establishes a relation between plaintiff and between the court and defendant, or petitioner the subject matter and respondent Not a ground for a motu Lack of jurisdiction over propio dismissal (except the subject matter is a in cases of summary ground for a motu procedure; Rule 4, Rule proprio dismissal. on Summary Procedure)

5. When the rules on venue do not apply [Rule 4, Sec. 4]


If a specific rule/law provides otherwise (e.g. action for damages arising from libel); Stipulations as to Venue is permitted if the parties have validly agreed - in writing - before the filing of the action - on the exclusive venue In the absence of qualifying restrictive words (e.g. only/solely/exclusively in such court), venue stipulation is merely permissive; that is, the stipulated venue is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco (1969)] The mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place. [Riano citing Spouse Lantin v. Lantion, (2006)]

2. Venue of real actions


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, Sec. 1, par 1] Forcible entry and detainer actions shall be commenced and tried in the municipal court of the municipality or city wherein the real property involved, or a portion thereof, is situated. [Rule 4, Sec. 1 par 2] If the property is located at the boundaries of 2 places, file the case in either place (at the plaintiffs option). If the case involves 2 properties located in 2 different places: - If the properties are the object of the same transaction, file it in any of the 2 places; - If they are the objects of 2 distinct transactions, separate actions should be filed in each place unless properly joined.

6. Effects of stipulations on venue


To be binding, the parties must have agreed on the exclusive nature of the venue of any prospective action between them. The agreement of parties must be restrictive and not permissive. [Regalado] In the absence of qualifying restrictive words (e.g. only/solely/exclusively in such court), venue stipulation is merely permissive; that is,

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the stipulated venue is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco (1969)] The court may declare agreements on venue as contrary to public policy if such stipulation unjustly denies a party a fair opportunity to file suit in the place designated by the Rules [Regalado, citing Hoechst Philippines v Torres (1978)]. Other rules on venue IMPROPER VENUE: The Court may not motu propio dismiss an action on the ground of improper venue. [Dacoycoy v. IAC (1991)] - Exception: In summary procedures. CHANGE OF VENUE: The SC has the power to change the venue to prevent a miscarriage of justice. [Art. 8, Sec. 5, Consti] WAIVER OF VENUE: - Until and unless the defendant objects to the venue in a motion to dismiss prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since for all intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Although venue is mandatory, it is waivable. [Diaz v. Adiong (1993)] - Means of waiving venue: o Where parties validly agreed in writing before the filing of the action on the exclusive venue thereof [Rule 4, Sec 4 (b)]; and o Failure to raise improper venue as affirmative defense or in motion to dismiss court.

Always filed judgment

before

May be filed even after judgment

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1. Kinds of Pleadings
Pleadings allowed [RULE 6, SEC. 2] 1) Complaint; 2) Answer; 3) Counterclaim; 4) Cross-claim; 5) 3rd-party Complaint, 6) Complaint-in-intervention; 7) Reply;

a. Complaint [Rule 6, Sec. 3]


Definition The pleading alleging the plaintiffs cause/s of action. It should contain a concise statement of the ultimate facts constituting the plaintiffs cause/s of action, not evidentiary facts or legal conclusions. It shall contain: in a methodical and logical form a plain, concise and direct statement of ultimate facts on which the plaintiff relies for his claim, omitting statement of mere evidentiary facts. [Rule 8, Sec 1] Its function is to inform the defendant clearly and definitely of claims made against him so that he may be prepared to meet the issues at trial. It should inform the defendant of all material facts on which the plaintiff relies to support his demand. It should state the theory of a cause of action which forms the bases of plaintiffs claim of liability. [Tantuico v. Republic (1991)] ULTIMATE FACTS Essential facts constituting the plaintiffs cause of action. A fact is essenti al if it cannot be stricken out without leaving the statement of the cause of action insufficient. [Remitere v. Montinola (1966)] Not ultimate facts: Evidentiary or immaterial facts; Legal conclusions, conclusions or inferences of facts from facts not stated, or incorrect inferences or conclusions from facts stated; Conclusions of law alleged in the complaint are not binding on the court. The details of probative matter or particulars of evidence, statements of law, inferences and arguments. TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE COMPLAINT: WON upon the averment of facts, a valid judgment may be properly rendered [Pamintan v. Costales (1914)].

V. PLEADINGS
1. Kinds of Pleadings 2. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure 3. Parts of a pleading 4. Allegations in a pleading 5. Effect of failure to plead 6. Default 7. Filing and Service of pleadings 8. Amendment
Definition Pleadings are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment [Rule 6, Sec. 1] Pleading Purpose: To submit a claim/defense for appropriate judgment May be initiatory Motion Purpose: To apply for an order not included in the judgment Cannot be initiatory as they are always made in a case already filed in

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b. Answer [Rule 6, Sec. 4]
Definition The pleading where the defendant sets forth his affirmative/negative defenses. It may also be the response to a counterclaim or a cross-claim. Two kinds of defenses that may be set forth in the answer [Rule 6, Sec 5] Negative Defenses Specific denials of the material facts alleged in the pleading of the claimant essential to his cause of action. - Negative Pregnant - Denial pregnant with an admission. It is a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. [Philamgen v. Sweet Lines (1993)] Affirmative Defenses Allegations of new matters which, while hypothetically admitting the material allegations in the claimants pleading, would nevertheless prevent/bar recovery by him. It includes fraud, prescription, release, payment and any other matter by way of confession and avoidance. In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. [Rule 6, Sec. 7] In the case of Agustin v. Bacalan, if a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived. But in Calo v. Ajax, the remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance. Kinds of counterclaims Compulsory counterclaim One which arises out of or is necessarily connected with the transaction or occurrence -that is the subject matter of the opposing party's claim. Does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Barred if not set up in the action. Need not be answered; no default. Permissive counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing party's claim. 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, the defendant can be declared in default.

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c. Counterclaims [Rule 6, Sec. 6]


Definition Any claim which a defending party may have against an opposing party. A counterclaim is in the nature of a crosscomplaint. Although it may be alleged in the answer, it is not part of the answer. Upon its filing, the same proceedings are had as in the original complaint. For this reason, it must be answered 10 days from service [Rule 11, Sec 4] (Asked in the 2002 and 2008 Bar Exams). How to raise counterclaims Included in the answer: A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. [Rule 11, Sec. 8] Exception: Pleadings may be amended under Rule 11, Sec. 10: - By leave of court; - Before judgment; - On the grounds of: o Oversight; o Inadvertence; o Excusable neglect; o When justice requires. After the answer [Rule 11, Sec. 9] Counterclaims/cross-claims arising after the answer, with the courts permission, may be presented as a counterclaim/cross-claim by supplemental pleading before judgment. Rules on counterclaims

A permissive counterclaim requires the payment of docket fees. [Sun Insurance v. Asuncion (1989)] A plaintiff who fails or 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 in the complaint. [Gojo v. Goyala (1970)]

i. Compulsory counterclaim
Requisites of a compulsory counterclaim [Rule 6, Sec 7] (Asked in the 1998 bar exam) It must arise out of, or be necessarily connected with, the transaction/occurrence that is the subject matter of the opposing party's claim; It does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction; It must be within the courts jurisdiction both as to the amount and the nature. [Regalado, citing Quintanilla v CA (1997)] General rule: A compulsory counterclaim not set up in the answer is deemed barred. Exception: If it is a counterclaim which either matured or was acquired by a party after serving his answer. In this case, it may be pleaded by filing a supplemental answer or pleading before judgment. [Rule 11, Sec. 9]

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Note: The filing of a MTD and the setting up of a compulsory counterclaim are incompatible remedies. In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time, he must choose only one remedy. If he decides to file a MTD, he will lose his counterclaim. But if he opts to set up his counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer. If any of the grounds to dismiss under Rule 17, Sec. 3 arise, the proper recourse for a defendant who desires to pursue his compulsory counterclaim in the same proceeding is not a MTD. Instead, he should only move to have the plaintiff declared non-suited on the complaint so that the latter can no longer present his evidence thereon, and simultaneously move that he be declared as in default on the compulsory counterclaim, and reserve the right to present evidence ex parte on his compulsory counterclaim. [BA Finance v. Co (1993)] adjudication of said cross-claim. In this case, the cross-claim is considered permissive. The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking an affirmative relief. [Torres v. CA (1973)] Cross Claim, Counterclaim and Third Party Complaint (Asked in the 1997 and 1999 Bar Exams) Cross-claim Counterclaim 3rd Party complaint Against a co- Against an Against a party opposing party person not a party to the action Must arise May arise out of or Must be in out of the be necessarily respect of the transaction connected with opponents that is the the transaction or (plaintiffs) subject the subject matter claim matter of the of the opposing original partys claim action or of a (compulsory counterclaim counterclaim), or therein it may not (permissive counterclaim) Counter-counterclaims and counter-cross-claims [Rule 6, Sec. 9] Counter-Counterclaim - A claim asserted against an original counter-claimant. Counter-Cross-claim - A claim filed against an original cross-claimant.

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ii. Permissive counterclaim


[NOTE: Please also refer to table comparing compulsory and permissive counterclaims] Test to determine whether a counterclaim is compulsory or permissive LOGICAL RELATIONSHIP TEST: Where conducting separate trials of the respective claims would entail substantial duplication of effort and time and involves many of the same factual and legal issues. [Meliton v. CA (1992)]

e. Third (fourth, etc.) party complaints [Rule 6, Sec. 11]


[NOTE: See also table in immediately preceding subsection] Definition: It is a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. There could also be a 4th/etc.-party complaint with the same purpose and function. 3rd-party complaint Brings into the action a 3rd person who was not originally a party Initiative is with the person already a party to the action 3rd-party complaint Need not be within the jurisdiction of the court trying the main case Diminishes/defeats the Same Initiative is with a nonparty who seeks to join the action Counterclaim Must be within the jurisdiction of the court trying the main case Need not Complaint in intervention

iii. Effect on the Counterclaim when the complaint is dismissed


Under Section 3, Rule 17, dismissal of action due to plaintiffs fault shall be without prejudice to the defendants right to prosecute his counterclaim in the same/separate action.

d. Cross-claims [Rule 6, Sec. 8]


Requisites for cross-claim A claim by one party against a co-party; It must arise out of the subject matter of the complaint or of the counterclaim; The cross-claimant is prejudiced by the claim against him by the opposing party. General rule: A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2] Exceptions: When it is outside the courts jurisdiction; If the court cannot acquire jurisdiction over 3rd parties whose presence is necessary for the

REMEDIAL LAW REVIEWER


recovery sought by the opposing party diminish/defeat the recovery sought by the opposing party May exceed in amount or be different in kind from that sought in the original complaint when he is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or of an officer thereof. Not an independent action Intervention is not an independent action, but is ancillary and supplemental to an existing litigation. [Republic v. Sandiganbayan] It is neither compulsory nor mandatory but only optional and permissive. [Mabayo v. CA (2002)] The Court has full discretion in permitting or disallowing intervention, which must be exercised judiciously and only after consideration of all the circumstances obtaining in the case. [Mago v. CA (1999)] It is not an absolute right as it can be secured only in accordance with the terms of applicable statute or rule. [Office of Ombudsman v. Samaniego (2010)] Requisites for valid intervention There must be a motion for intervention filed before rendition of judgment by the trial court. Movant must show in his motion that he has a: - legal interest in (1) the matter of litigation, (2) the success of either of the parties in the action or (3) against both parties. - that the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof - that the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenors rights may not be fully protected in a separate proceeding. Meaning of legal interest The legal interest 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. Remedy for denial of motion for intervention The movant may file a motion for reconsideration since the denial of a motion for intervention is an interlocutory order. Alleging grave abuse of discretion, movant can also file a certiorari case.

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Cannot exceed amount stated in original complaint

the the

Tests to determine whether the 3rd-party complaint is in respect of plaintiff's claim [Capayas v. CFI (1946)] WON it arises out of the same transaction on which the plaintiff's claim is based, or although arising out of another/different transaction, is connected with the plaintiffs claim; WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiffs claim against the original defendant; WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiffs claim. NOTE: Leave of court to file a 3rd-party complaint may be obtained by motion under Rule 15. Summons on 3rd (4th/etc.) party defendant must be served for the court to obtain jurisdiction over his person, since he is not an original party. Where the trial court has jurisdiction over the main case, it also has jurisdiction over the 3rdparty complaint, regardless of the amount involved as a 3rd-party complaint is merely auxiliary to and is a continuation of the main action. [Republic v. Central Surety (1968)] A 3rd-party complaint is not proper in an action for declaratory relief.

f. Complaint-in-intervention
Pleadings in intervention [Rule 19, Sec. 3] COMPLAINT-IN-INTERVENTION If intervenor asserts a claim against either or all of the original parties. ANSWER-IN-INTERVENTION If intervenor unites with the defending party in resisting a claim against the latter. Definition INTERVENTION is a remedy by which a third party, not originally impleaded in a proceeding, becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding. Its purpose is "to settle in one action and by a single judgment the whole controversy (among) the persons involved." [First Philippine Holdings v. Sandiganbayan (1996); Rule 19] When allowed Intervention shall be allowed when a person has: a legal interest in the matter in litigation; or in the success of any of the parties; or an interest against the parties; and

g. Reply [Rule 6, Sec. 10]


Definition: The plaintiffs response to the defendant's answer, the function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters.

REMEDIAL LAW REVIEWER


Effect of failure to reply (Asked in the 2000 bar exam) General rule: Filing a reply is merely optional. New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto. Exception: Reply is required: Where the answer is based on an actionable document. [Rule 8, Sec. 8] Where the answer alleges the defense of usury. [Rule 8, Sec. 11] provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid. NOTE: Courts decision shall be contained in Form 13SCC Prohibited Pleadings and Motions: Motion to dismiss the complaint except on the ground of lack of jurisdiction; Motion for a bill of particulars; Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; Petition for relief from judgment; Motion for extension of time to file pleadings, affidavits, or any other paper; Memoranda; Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; Motion to declare the defendant in default; Dilatory motions for postponement; Reply; Third-party complaints; and Interventions.

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2. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure
Under the Revised Rules on Summary Procedure the only pleadings allowed to be filed are: complaints; compulsory counterclaims and cross-claims pleaded in the answer; and the answers thereto. [Sec. 3] Prohibited pleadings, motions or petitions: Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with required barangay conciliation proceedings; Motion for a bill of particulars; Motion for new trial, or for reconsideration of a judgment, or for opening of trial; Petition for relief from judgment; Motion for extension of time to file pleadings, affidavits or any other paper; Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; Motion to declare the defendant in default; Dilatory motions for postponement; Reply; Third party complaints; and Interventions. [Sec. 19] Forms used under the Rule of Procedure under Small Claims Cases: Instead of filing complaint, a Statement of Claim using Form 1-SCC shall be filed [Sec. 5] Answer shall be filed by way of a Response using Form 3-SCC [Sec. 10] Defendant may file counterclaim if he possesses a claim against the plaintiff that (a) is within the coverage of this Rule, exclusive of interest and costs; (b) arises out of the same transaction or event that is the subject matter of the plaintiffs claim; (c) does not require for its adjudication the joinder of third parties; and (d) is not the subject of another pending action, the claim shall be filed as a counterclaim in the Response; otherwise, the defendant shall be barred from suit on the counterclaim. The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence,

3. Parts of a pleading [Rule 7, Secs. 1 to 3]


a. Caption
Caption - Courts name, actions title (i.e. parties names) and docket number. Body - Pleadings designation, allegations of party's claims/defenses, relief prayed for and pleadings date. - Paragraphs must be numbered, and each paragraph number must contain a single set of circumstances - Headings: if more than one cause of action, use "1st cause of action," 2nd cause of action," etc. - Specify relief sought, but it may add a general prayer for such further/other relief as may be deemed just/equitable. - Every pleading shall be dated.

b. Signature and address


Pleading must be signed by the party/counsel. State address (not PO box) in either case.

c. Verification and certification against forum shopping [Rule 7, Sec 4]


Verification Pleadings need not be verified, unless otherwise provided by the law/rules. How a Pleading is Verified [Rule 7, Sec 4] By an affidavit: That the affiant read the pleading; That the allegations therein are true and correct of his personal knowledge or based on authentic documents.

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Certification of Non-Forum Shopping (CNFS) [Rule 7, Sec. 5] Definition: The filing of multiple suits in different courts, simultaneously or successively, involving the same parties, to ask the courts to rule on the same/related causes and/or to grant the same or substantially the same relief. [T'Boli Agro-Industrial Development, Inc. (TADI) v. Solidapsi (2002)] (Asked in the 2006 Bar Exam) Test to Determine WON there is Forum Shopping (ASKED IN THE 2002 BAR EXAM) - WON in the 2 or more cases pending, there is identity of: Parties; Rights or causes of action; Relief sought. The CNFS is to be executed by the petitioner, not by the counsel. CNFS is required only for complaints or initiatory pleadings (e.g. permissive counterclaim, cross-claim etc.). CNFS is not required in a compulsory counterclaim. A counterclaim is not an initiatory pleading. [UST Hospital v. Surla (1998)] Failure to comply is not curable by mere amendment of the pleading but shall be cause for the dismissal of the case, without prejudice and upon motion and after hearing, unless otherwise provided. Effect of Submission of False CNFS or NonSubmission of CNFS Indirect contempt; Administrative and criminal actions. Effect of Willful and Deliberate Forum Shopping (Asked in the 2006 and 2007 Bar Exams) Ground for summary dismissal of the case with prejudice; Direct contempt and administrative sanctions. - Pleadings as well as remedial laws should be liberally construed - in order that the litigant may have ample opportunity to prove their respective claims, and possible denial of substantial justice, due to technicalities, may be avoided. [Gerales v. CA (1993)] Requirements of a corporation executing the verification/certification of non-forum shopping Only individuals vested with authority by a valid board resolution may sign the certificate of nonforum shopping in behalf of a corporation. In addition, the Court has required that proof of said authority must be attached. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatorys authority. [PAL v. FASAP (2006)] Counsels signature is a certification that: - He has read the pleading; - To the best of his knowledge, information and belief there is good ground to support it; - It is not interposed for delay. An unsigned pleading produces no legal effect. However, the court may allow such deficiency to be remedied if it shall appear that the same was due to inadvertence and not intended for delay.

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4. Allegations in a pleading
a. Manner of making allegations
In general [RULE 8, SEC. 1] In a methodical and logical form. Plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim/defense. Omit evidentiary facts. If defense relied on is based on law, cite the provisions and their applicability. Condition precedent - a general averment of the performance or occurrence of all conditions precedent shall be sufficient [RULE 8, SEC. 3] Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts - Circumstances constituting fraud or mistake must be stated with particularity while malice, intent, knowledge or other condition of the mind of a person may be averred generally [RULE 8, SEC. 5] Facts that may be Averred Generally Conditions precedent; but there must still be an allegation that the specific condition precedent has been complied with, otherwise it will be dismissed for lack of cause of action; [Rule 8, Sec 3] Capacity to sue or be sued; Capacity to sue or be sued in a representative capacity; [Rule 8, Sec 4] Legal existence of an organization; - A party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by specific denial which shall include supporting particulars within the pleader's knowledge. [Rule 8, Sec 4] Malice/intent/knowledge or other condition of the mind; [Rule 8, sec 5] Judgments of domestic/foreign courts, tribunals, boards or officers (without need to show jurisdiction); [Rule 8, Sec 6] Official documents/acts. [Rule 8, Sec 9] Facts that must be Averred Particularly Circumstances showing fraud/mistake averments of fraud/mistake [Rule 8, Sec 5] in all

d. Effect of the signature of counsel in a pleading

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b. Pleading an actionable document
Actionable document A document which is really the basis of the cause of action (or defense), and not merely evidentiary thereof. [Rule 8, Sec. 7] Genuineness and due execution of an actionable instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts. [Rule 8, Sec. 8] Exception to the requirement of an oath: when the adverse party does not appear to be a party to the instrument. [Donato v. CA (1993)] How an action or defense may be based on a document: By copying a substantial portion of the document into the pleading; By annexing /incorporating the document into the pleading; By both copying and annexing document into the pleading. DENIAL WITH QUALIFICATION - Specifies so much of it as is true and material, and deny the remainder. SPECIFIC DENIAL FOR LACK OF KNOWLEDGE/INFORMATION sufficient to form as belief as to the truth of a material averment made in the complaint. SPECIFIC DENIAL UNDER OATH - Contests the authenticity or due execution of an actionable document. [Rule 8, Sec. 8] Disciplinary Action on Counsel Regarding Pleadings [Rule 7, Sec. 3] Deliberately filing an unsigned pleading; Deliberately signing a pleading in violation of the Rules; Alleging scandalous/Indecent matter in the pleading; Failing to promptly report a change of his address. Effect of failure to make specific denials General rule: Defenses and objections not pleaded either in a MTD or in the answer, are deemed waived. [Rule 9, Sec. 1] Exceptions: - Lack of jurisdiction over the subject matter; - Litis pendentia; - Res judicata; - Prescription When a specific denial requires an oath - Contests the authenticity or due execution of an actionable document. [Rule 8, Sec. 8]

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c. Specific denials
Three Ways of Making a Specific Denial SPECIFIC ABSOLUTE DENIAL by specifically denying the averment and, whenever practicable, setting forth the substance of the matters relied upon for such denial. PARTIAL SPECIFIC DENIAL part admission and part denial; DISAVOWAL OF KNOWLEDGE by an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party's pleading. This does not apply where the fact as to which want of knowledge is asserted is, to the knowledge of the court, so plain and necessarily within the defendant's knowledge that his averment of ignorance must be palpably untrue. NOTE: General rule: Allegations not specifically denied are deemed admitted [Rule 8, Sec. 11] Exceptions: Allegations as to the amount of unliquidated damages; Allegations immaterial to the cause of action; Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. [Rule 8, Sec. 12] Conclusion of law. Kinds of denial (Asked in the 2004 Bar Exam) SPECIFIC DENIAL Specifies each material allegation of fact the truth of which he does not admit, and sets forth the substance of the matters upon which he relies to support his denial. [Rule 8, Sec. 10]

5. Effect of failure to plead


a. Failure to plead defenses and objections
General rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed waived. (Omnibus Motion Rule) [Rule 9] Exceptions: - Lack of jurisdiction over the subject matter; - Litis pendentia between same parties for the same cause - Res judicata - Action barred by statute of limitations.

b. Failure to plead a counterclaim and cross-claim

compulsory

Compulsory counterclaim General Rule: A compulsory counterclaim not set up is considered barred. [Rule 9, Sec. 2] Exception: If due to oversight, inadvertence, excusable neglect, etc. the compulsory counterclaim, with leave of court, may be set up by amendment before judgment. [Rule 11, Sec. 10] Cross-claim A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2]

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6. Default [Rule 9, Sec. 3]

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c. Relief from an order of default [Rule 9, Sec 3(b)]


Before judgment, a party declared in default may file a motion under oath to set aside the order of default upon proper showing that: - His failure to answer was due to fraud, accident, mistake or excusable negligence; and that - He has a meritorious defense. In such case, the order of default may be set aside on terms and conditions as justice requires. Remedies of a party declared in default Pleadings, as well as remedial laws, should be liberally construed in order that litigants may have ample opportunity to prove their respective claims, and possible denial of substantial justice. [Gerales v. CA (1993)] Dulos v. CA (1990) MOTION TO SET At any time after the discovery ASIDE ORDER OF of default and before DEFAULT [RULE 9, judgment, defendant may file a SEC. 3(B)] motion under oath to set aside order of default on the ground that his failure to file an answer or appear on the date set for the pre-trial was due to fraud, accident mistake of law, and excusable negligence and that he has a meritorious defense MOTION FOR NEW If the judgment has already TRIAL [RULE 37, been rendered when the SEC. 1(A)] defendant discovered the default, but before the same became final and executory. It should be filed within the period for perfecting an appeal. Timely filing thereof interrupts the 15-day reglementary period for an appeal. It is required that defendant file first a motion to lift order of default to regain his standing. [Tan v. CA (1997)] PETITION FOR If the defendant discovered the RELIEF FROM default after the judgment has ORDER, become final and executory JUDGMENT OR OTHER PROCEEDINGS [RULE 38, SEC. 1 AND 2] APPEAL FROM THE The defendant may also appeal RTC [RULE 41, from the judgment rendered SEC. 1] against him as contrary to the evidence or the law, even if he did not present a petition to set aside the order of default An order of default is an interlocutory order which is not appealable. A judgment by default is a final disposition of the case and is

Definition: Failure of the defendant to answer within the proper period. It is not his failure to appear nor his failure to present evidence (Asked in the 2000 and 2001 Bar Exams) Order of default Issued by the court on plaintiffs motion, for failure of the defendant to file his responsive pleading seasonably Interlocutory -Not appealable Judgment by default Rendered by the court following a default order or after it received ex parte plaintiffs evidence Final Appealable

a. When a declaration of default is proper


Court validly acquired jurisdiction over the defendants person, either by service of summons or voluntary appearance; Defendant fails to answer within the time allowed therefor; Motion to declare the defendant in default; Notice to the defendant by serving upon him a copy of such motion; Proof of such failure to answer.

b. Effect of an order of default (Asked in the 1999 Bar Exam) [Rule 9, Sec 3(a)]
Party in default loses standing in court as a party litigant. His failure to answer operates as a waiver of right to take part in the trial, of being heard, and of presenting evidence in his favor. - If the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the withdrawal of the original complaint. - Hence, the defendant was entitled to file answer to the amended complaint as to which he was not in default. The court shall proceed to render judgment granting the claimant relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. The party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. - A defendant declared in default cannot take part in the trial, but he cannot be disqualified from testifying as a witness in favor of nondefaulting defendants. [Cavili v. Florendo (1987)] - A party in default is entitled to notice of: o Motion to declare him in default; o Order declaring him in default; o Subsequent proceedings; o Service of final orders and judgments.

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appealable. [MERALCO v. La Campana Food Products (1995)] A petition for certiorari under Rule 65, although not a substitute for an available or lost appeal, may be invoked while the orders of the lower court are issued without or in excess of jurisdiction. Judgment by default being appealable, appeal should be perfected within 15 days from receipt of copy of order denying MFR of default judgment. [Oriental Media v. CA (1995)] A satisfactory showing by the movant of the existence of fraud, accident, mistake or excusable neglect is an indispensable requirement for the setting aside of a judgment of default or an order of default. A meritorious defense is only one of the two conditions. The meritorious defense must concur with the satisfactory reason for the nonappearance of the defaulted party. If there is no such reason, the appropriate remedy is an ordinary appeal under Rule 41, Sec. 2. [Ramnani v. CA (1993)] The jurisdiction was properly acquired by the TC over the defendants person; he was therefore properly declared in default for not having filed any answer. Despite his failure to file a motion to set aside the declaration of default, he has the right to appeal the default judgment. But in the appeal, only the evidence of the petitioner may be considered, respondent not having adduced any defense evidence. [Boticano v. Chu (1987)] was filed but defendant did not appear at the hearing, the award may exceed the amount or be different in kind from that prayed for.

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f. Actions where default are not allowed


Cases where no defaults are allowed [Rule 9, Sec 3(e)] Annulment of marriage; Declaration of nullity of marriage; Legal Separation; 1) Here, the court shall order the prosecuting attorney to investigate WON parties are colluding and, if there is no collusion, to intervene from the State to ensure that evidence is not fabricated. Special civil actions of certiorari, prohibition and mandamus, where comment (instead of an answer) is required to be filed. Failure to appear at pre-trial Who fails to appear Plaintiff Effect Cause for dismissal of the action which will be with prejudice, unless otherwise ordered by the court Cause to allow plaintiff to present evidence ex parte, and court to render judgment on the basis thereof As in default (failure to appear by plaintiff) (Rule 18, Sec. 5) Not required Not required Court to allow plaintiff to present evidence ex parte, then the court shall render judgment Relief awarded may be of different nature and amount from the relief prayed for

Defendant

Default by defendant (Rule 9, Sec. 3) Upon motion and notice to defendant. Requires proof of failure to answer Court to render judgment, unless it requires submission of evidence Relief awarded must be the same in nature and amount as prayed for in the complaint

d. Effect of a partial default [Rule 9, Sec 3(c)]


If the pleading asserting a claim states a common cause of action against several defending parties, and some of the defending parties answer while the others fail, the court shall try the case against all defendants upon the answers filed and render judgment upon the evidence presented. Exception: If the defense is personal to the one who answered; in which case, it will not benefit those who did not answer.

e. Extent of relief
Extent of relief to be awarded The award shall not exceed the amount or be different in kind from that prayed for; nor award unliquidated damages. Rationale: It is presumed that where the relief demanded is greater or different in kind, defendant would not have allowed himself to be declared in default. Datu Samad Mangelen v. CA (1992): In a judgment based on evidence presented ex parte, judgment should not exceed the amount or be different in kind from that prayed for. On the other hand, in a judgment where an answer

Lesaca v. CA (1992): A defendant who already filed an answer cannot be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. Bayog v. Natino (1996): The Revised Rules on Summary Procedure does not provide that an answer filed after the reglementary period should be expunged from the records. As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer. The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure. Such a motion is allowed under

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Sec. 19(a) thereof. always be within the prescriptive period of the action filed. [Sun Insurance v. Asuncion] Further Modification by Heirs of Hinog v. Melicor (2005): FEES AS LIEN. Where the trial court acquires jurisdiction over a claim by the filing of the pleading and the payment of the prescribed filing fee, BUT SUBSEQUENTLY, the judgment awards a claim not specified in the pleading, or cannot then be estimated, or a claim left for determination by the court, then the additional filing fee shall constitute a lien on the judgment. Note: Appellate docket and other lawful fees must be paid within the same period for taking an appeal. Non-payment is a valid ground for dismissal of an appeal. [M.A. Santander v. Villanueva (2004)] However, delay in the payment of docket fees confers upon the court discretionary and not mandatory power to dismiss an appeal. [Villamor v. CA (2004)]

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Malanyaon v. Sunga (1992): Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control. Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order.

Acquisition of jurisdiction

7. Filing and Service of pleadings


Definition FILING The act of presenting the pleading or other paper to the clerk of court. [Rule 13, Sec. 2] SERVICE The act of providing a party or his counsel with a copy of the pleading or paper concerned. [Rule 13, Sec. 2] Papers Required to be Filed and Served [RULE 13, SEC. 4] Pleading subsequent to the complaint; Appearance; Written Motion; Notice; Order; Judgment; Demand; Offer of Judgment; Resolution; Similar papers.

b. Filing versus service of pleadings


Filing is the act of presenting the pleading or other papers to the clerk of court. [RULE, 13, SEC. 2] Service is the act of providing a party with a copy of the pleading or paper concerned. [RULE, 13, SEC. 2]

c. Periods of filing of pleadings


Answer to the complaint - The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. [Rule 11.1] within thirty (30) days after receipt of summons of the foreign entity where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed [Rule 11.2] Answer to amended complaint - Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. Note that this Rule shall apply to the answer to an amended counterclaim, amended crossclaim, amended third (fourth, etc.) party complaint, and amended complaint-inintervention. [Rule 11.3]

a. Payment of docket fees


As a rule, the court acquires jurisdiction over the case only upon payment of prescribed fees General rule: Without payment, case is considered not filed. Payment of docket fees is mandatory and jurisdictional. It is not simply the filing of the complaint or appropriate initiatory pleading but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action [Proton Pilipinas v. Banque National de Paris] Effect of Failure to Pay Docket Fees at Filing Manchester v. CA (1987) [Old Rule]: AUTOMATIC DISMISSAL. Any defect in the original pleading resulting in underpayment of the docket fees cannot be cured by amendment, such as by the reduction of the claim as, for all legal purposes, there is no original complaint over which the court has acquired jurisdiction Modification by Sun Insurance v. Asuncion (1989): NOT AUTOMATIC DISMISSAL BUT Court may allow payment of fees within reasonable period of time. Note that payment should

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Answer to counterclaim or cross-claim - A counterclaim or cross-claim must be answered within ten (10) days from service. [Rule 11.4] Answer to third (fourth, etc.)- party complaint - Same rule as the answer to the complaint. [Rule 11.5] Reply - within ten (10) days from service of the pleading responded to. [Rule 11.6] Answer to supplemental complaint - within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. Note that the answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. 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. [Rule 11.11] Service by (registered) mail [Rule 13, Sec. 7] - By depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office or 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. - If no registry service is available in the locality of either sender or addressee, service may be done by ordinary mail. Substituted service [Rule 13, Sec. 8] By delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail Completeness of service (Rule 13 Sec. 10) Upon actual delivery Proof of service (Rule 13 Sec. 13) Written admission of the party served, OR Official return of the server OR Affidavit of the party serving, with a full statement of the date/place/manner of service. Affidavit of the person mailing of facts showing compliance with Sec. 7 of Rule 13. Affidavit of the person mailing of facts showing compliance with Sec. 7 of Rule 13 AND Registry receipt issued by the post office

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Personal service

d. Manner of filing
Manner of filing [Rule 13, Sec. 3] (Asked in the 2005 Bar particularly in comparison with filing in criminal actions) Personally. - By personally presenting the original to the clerk of court. - The pleading is deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing. - If a party avails of a private carrier, the date of the courts actual receipt of the pleading (not the date of delivery to the private carrier) is deemed to be the date of the filing of that pleading. [Benguet Electric Cooperative v. NLRC (1992]] By registered mail. - Filing by mail should be through the registry service (i.e. by depositing the pleading in the post office). - The pleading is deemed filed on the date it was deposited with the post office.

Service by ordinary mail Service by registered mail

10 days after mailing, unless otherwise provided by the court Whichever is earlier: Actual receipt by the addressee 5 days after the addressee received 1st postmaster's notice

e. Modes of service [Rule 13, Sec. 5]


Personal service [Rule 13, Sec. 6] - Delivering personally a copy to the party or his counsel. - Leaving a copy in counsel's office with his clerk or with a person having charge thereof. - If no person is found in his office, or if his office is unknown, or if he has no office Leaving the copy between 8am and 6pm at the party's or counsel's residence (if known) with a person of sufficient age and discretion then residing therein.

Service of judgments, final orders or resolutions [Rule 13, Sec. 9] By personal service; By registered mail; By publication at the expense of the prevailing party if party was summoned by publication and has failed to appear in the action. Priorities in modes of service and filing [Rule 13, Sec. 11] General rule: Personal filing and service. Resort to other modes of filing and service must be accompanied by an explanation why the service/filing was not done personally. If there is no written explanation, the paper is considered not filed.

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Exception: Papers emanating from the court. - an affidavit of the person mailing containing the facts showing compliance with Rule 13, Sec. 7, AND - the registry receipt issued by the mailing office. - the registry return card which shall be filed immediately upon its receipt by the sender, or in lieu thereof of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. Notice of lis pendens [Rule 13, Sec. 14] LIS PENDENS - Notice of a pendency of the action between the parties involving title to or right of possession over real property. Requisites: [AFP Mutual Benefit Association v. CA (2001)] Action affects the title or the right of possession of the real property; Affirmative relief is claimed; Notice shall contain the name of the parties and the object of the action/defense and a description of the property affected thereby; Action in rem. - The notice serves as a warning to all persons, prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings. - The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer. - The notice of cannot be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated, as Sec. 14 provides that such cancellation may be authorized only upon order of court, after proper showing that: [Roxas v. CA (1993)] - The notice is for the purpose of molesting the adverse party; or - It is not necessary to protect the rights of the party who caused it to be recorded

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When service is deemed complete Personal service is deemed complete upon actual delivery [Rule 13, Sec. 10] Service by registered mail is complete upon actual receipt by the addressee or after 5 days from the date he received the first notice of the postmaster, whichever date is earlier. [Rule 13, Sec. 10] Service by ordinary mail is complete upon the expiration of 10 days after mailing, unless the court otherwise provides [Rule 13, Sec. 10] Substituted service is complete at the time of delivery of the copy to the clerk of court together with the proof of failure of both personal service and service by mail. [Rule 13, Sec. 8]

Proof of filing and service


Proof of filing Filing is proved by its existence in the record of the case [Rule 13, Sec. 12]. If it is not in the record [Rule 13, Sec. 12]. When pleading is deemed filed Upon receipt of the pleading by the clerk of court On the date the pleading was deposited with the post office Proof of filing

Personally

Written/stamped acknowledgment the clerk of court

by

By registered mail

Registry receipt, and affidavit of the person who did the mailing with: Full statement of the date/place of depositing the mail in the post office in a sealed envelope addressed to the court Postage fully paid Instructions to the postmaster to return the mail to the sender after 10 days if undelivered

Amended and supplemental pleadings

8. Amendment
How to amend pleadings [Rule 10, Sec. 1] Adding an allegation of a party; Adding the name of a party; Striking out an allegation of a party; Striking out the name of a party; Correcting a mistake in the name of a party; and Correcting a mistaken or inadequate allegation or description in any other respect. Purpose: That the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.

Proof of Service [Rule 13, Sec. 13] Proof of personal service shall consist of: - a written admission of the party served, or the official return of the server, OR - the affidavit of the party serving, - Content: full statement of the date, place and manner of service. Proof of service by ordinary mail: - an affidavit of the person mailing - Content: facts showing compliance with Rule 13, Sec. 7 Proof of service by registered mail

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Barfel Development v. CA (1993): As a general policy, liberality in allowing amendments is greatest in the early stages of a law suit, decreases as it progresses and changes at times to a strictness amounting to a prohibition. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. Form [Rule 10, Sec. 7] A new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. subject only to the limitations that amendments should not substantially change the cause of action or alter the theory of the case or made to delay the action. Once exercised, it cannot be disturbed on appeal, except in case of abuse thereof. [Metropolitan Bank v. Presiding Judge (1990)]

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c. Formal amendment [Rule 10, Sec. 4]


A defect in the designation of the parties and other clearly clerical errors may be summarily corrected by the court motu proprio or by motion at any stage of the action. Provided that no prejudice is caused to the adverse party.

a. Amendment as a matter of right


SUBSTANTIAL AMENDMENTS once, made at any time before a responsive pleading is served. If it is a reply, once, made at any time within l0 days after it is served. [Rule 10, Sec. 2] (Asked in the 2003 Bar Exam) If as a matter of discretion Amendment requires leave of court if: It is substantial; and A responsive pleading has already been served. [Rule 10, Sec. 3]

d. Amendments to conform to or authorize presentation of evidence [Rule 10, Sec. 5] (Asked in the 2004 Bar Exam)
If issues not raised by the pleadings are tried with the express/implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Amendment of pleadings as may be necessary to cause them to conform to the evidence and to raise these issues, may be made upon motion of any party, any time (even after judgment). - But failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made.

b. Amendments by leave of court


SUBSTANTIAL AMENDMENTS - If as a matter of discretion, requires leave of court if: It is substantial; and A responsive pleading has already been served. [Rule 10, Sec. 3] Requisites for amendments by leave of court Motion filed in court; Notice to the adverse party; Opportunity to be heard afforded to the adverse party. (NOTE: In the 2008 Bar Exam, a question was asked on amendment of complaint to implead additional parties) When amendment by leave of court may not be allowed If the cause of action, defense or theory of the case is changed. If amendment is intended to confer jurisdiction to the court. - If the court has no jurisdiction in the subject matter of the case, the amendment of the complaint cannot be allowed so as to confer jurisdiction on the court over the property. [PNB v. Florendo (1992)] If amendment is for curing a premature or nonexisting cause of action. If amendment is for purposes of delay. Note: Admitting an amended complaint in intervention is a matter addressed to the courts discretion,

Amendments pleadings

vis--vis

supplemental

e. Different from supplemental pleadings


Supplemental pleadings (ASKED IN THE 2000 BAR EXAM) Definition: One which sets forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [Rule 10, Sec. 6] It is made upon motion of a party with reasonable notice and upon terms as are just. The cause of action stated in the supplemental complaint must be the same as that stated in the original complaint. Otherwise, the court should not admit the supplemental complaint. [Asset Privatization Trust v. CA (1998)] A supplemental complaint/pleading supplies deficiencies in aid of an original pleading, not to entirely substitute the latter.

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Unlike in an amended complaint, the original complaint exists side by side with the supplemental complaint. [Shoemart v. CA (1990)] Amendments Reason for the amendment is available at time of the 1st pleading Either as a matter of right or a matter of discretion Supersedes the pleading Supplemental pleadings Grounds for the supplemental pleading arose after the 1st pleading was filed Always a matter of discretion Supplements the pleading (i.e. Exists side by side with the original pleading) A supplemental pleading does not require the filing of a new copy of the entire pleading corresponding summons to the defendants. [Rule 14, Sec. 1] Contents of summons [Rule 14, Sec. 2] Summons must be directed to the defendant, signed by the clerk of the court under seal, and contain: (1) Name of the court and names of the parties; (2) Direction that the defendant answer within the time fixed; (3) Notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem (if any) shall be attached to the original and each copy of the summons. NOTE that jurisdiction over person of defendant may also be acquired through voluntary appearance.

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When an amended pleading is filed, a new copy of the entire pleading must be filed

f. Effect of amended pleading


Effect [Rule 10, Sec. 8] Amended pleading supersedes the pleading that it amends. Claims and defenses in superseded pleading which are not incorporated in the amended pleading are deemed waived. Admissions made in the superseded pleading may still be received in evidence against the pleader.

2. Voluntary appearance
General rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons; Exception: Special appearance to file a MTD. BUT inclusion in the MTD of grounds other than LOJ over the defendants person, is not deemed a voluntary appearance. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)] Who serves the summons [rule 14, sec. 3] (1) The sheriff or his deputy; (2) Other proper court officers; (3) For justifiable reasons, any suitable person authorized by the court issuing the summons. (4) Officer having management of a jail or institution deputized as special sheriff when defendant is a prisoner [rule 14, sec. 9] Return of summons [rule 14, sec. 4] When the service has been completed, the server shall, within 5 days therefrom, serve a copy of the return (personally or by registered mail) to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. Alias summons [rule 14, sec. 5] Upon plaintiffs demand, the clerk may issue an alias summons if either: (1) Summons is returned without being served on any/all of the defendants. (2) Summons was lost. The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom, stating the reasons for the failure of service.

VI. SUMMONS
1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem 2. Voluntary appearance 3. Personal service 4. Substituted service 5. Constructive service (by publication) 6. Extra-territorial service, when allowed 7. Service upon prisoners and minors 8. Proof of service
Definition: A coercive force issued by the court to acquire jurisdiction over the person of the defendant (asked in the 1999 Bar Exam)

1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
Purpose (1) To acquire jurisdiction over the person of the defendant in a civil case; (2) To give notice to the defendant that an action has been commenced against him. Issuance of summons Upon the filing of the complaint and the payment of legal fees, the clerk of court shall issue the

REMEDIAL LAW REVIEWER


Modes of service of summons Any application to the court under Rule 14 for leave to effect service in any manner for which leave of court is necessary shall be made by: (1) motion in writing, (2) supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. [Rule 14, Sec. 17] Absence in the sheriff's return of a statement about the impossibility of personal service does not conclusively prove that the service is invalid. Proof of prior attempts at personal service may be submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service. While the sheriff's return carries with it the disputable presumption of regularity in the sense that the entries therein are deemed correct, it does not necessarily follow that an act done in relation to the official duty for which the return is made was not done simply because it is not disclosed therein. [Mapa v. CA (1992)]

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3. Personal service
Service in person on defendant (1) By handing a copy of summons to him; (2) By tendering it to him, if he refuses to receive and sign for it. [Rule 14, Sec. 6]

4. Substituted service [Rule 14, Sec. 7] (asked in the 2004 Bar Exam)
Rationale: Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable from the various incidences of state citizenship. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him. [Northwest v. CA (1995)] For a valid substituted service of summons, the following must be established in the proof of service: [Sps. Ventura v. CA (1987)] (1) Impossibility of the personal service of summons within a reasonable time; (2) Efforts made to find the defendant personally and the fact that such efforts failed; [Laus v. CA (1993)] (3) Service by leaving copy of summons either: (a) With some person of suitable age and discretion then residing in the defendants residence; (b) With some competent person in charge of the defendants office or regular place of business. For a substituted service to be valid, summons served at the defendant's residence must be served at his residence at the time of such service and not at his former place of residence. "Dwelling house" or "residence" refer to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. [Sps. Ventura v. CA (1987)] Substituted service must be used only as prescribed and in the circumstances authorized by statute. Statutes prescribing modes other than personal service of summons must be strictly complied with to give the court jurisdiction, and such compliance must appear affirmatively in the return. [Laus v. CA (1993)]

5. Constructive service publication) [Rule 14, Sec. 14]

(by

Requisites (1) The action is in rem or quasi in rem; (2) Defendant's identity or whereabouts are unknown and cannot be ascertained by diligent inquiry; (3) There must be leave of court. Summons by publication in a personal action cannot confer upon the court jurisdiction over the person of the defendant, who does not voluntarily submit himself to the authority of the court. The proper recourse for the plaintiff is to locate properties of the defendant whose address is unknown and cause them to be attached. [Consolidated Plywood vs. Breve (1988)] Service of summons upon different entities See Annex A.

a. Service upon a defendant where his identity is unknown or where his whereabouts are unknown [Rule 14, Sec. 14]
With leave of court, by publication in a newspaper of general circulation

b. Service upon residents temporarily outside the Philippines [Rule 14, Sec. 16]
With leave of court, may serve extraterritorially Service of summons upon different entities Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant's residence, even if defendant was abroad at that time. The fact that the defendant did not actually receive the summons did not invalidate the service of such summons. [Montalban v. Maximo 1963]

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6. Extra-territorial service, allowed [Rule 14, Sec. 15]

when

Exception: Doctrine of substantial compliance If defendant actually received summons and complaint despite all these technicalities. Proof of service If personal or substituted service: In writing by the server and shall: [Rule 14, Sec. 18] (1) Set forth the manner/place/date of service; (2) Specify any papers which have been served with the process and the name of the person who received the same; (3) Be sworn to when made by a person other than a sheriff or his deputy. If by publication: [Rule 14, Sec. 19] (1) Affidavit of the printer, his foreman, principal clerk, or the editor, business/advertising manager, with a copy of the publication attached, AND (2) Affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. Effect of non-service of summons (asked in the 2006 Bar Exam) Unless the defendant voluntarily submits to the jurisdiction of the court,non-service or irregular service of summons renders null and void all subsequent proceedings and issuances in the action from the order of default up to and including the judgment by default and the order of execution. If the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint if it does not introduce new causes of action. [Ong Peng v. Custodio 1961] But if the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment. [Atkins v. Domingo 1923] Waiver of service of summons [Rule 14, Sec. 20] General rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons; Exception: Special appearance to file a MTD. Inclusion in the MTD of grounds other than LOJ over the defendants person, is not deemed a voluntary appearance. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)] Service of summons upon different entities See Annex A.

Requisites: (Asked in the 1997 and 2008 Bar Exam) (1) Defendant does not reside or is not found in the Philippines; (2) Action either: (a) Affects the plaintiffs personal status; (b) Relates to or the subject matter of which is property within the Philippines in which defendant has a lien/interest; (c) Demands a relief which consists wholly/partially in excluding the defendant from any interest in any property within the Philippines; (d) Has defendants property in the Philippines, attached. Modes of service (1) With leave of court, serve outside the Philippines by personal service; or (2) With leave of court, serve by publication in a newspaper of general circulation, in which case copy of the summons and order of the court must also be sent by registered mail to the defendants last known address; (3) Any other manner the court deems sufficient The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer.

7. Service upon prisoners and minors


Service upon prisoner [Rule 14, Sec. 9] Serve upon the officer having management of the jail/prison Service upon minors and incompetents [Rule 14, Sec. 10] Serve upon the minor/incompetent and on his legal guardian. If there is no guardian, plaintiff may apply for the appointment of a guardian ad litem. If minor, may serve on his parents.

8. Proof of service
Return of service [Rule 14, Sec. 4] When service has been completed, the server shall serve a copy of the return within 5 days (personally or by registered mail) to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied with the proof of service. General rule: Return of service of summons immediately shifts burden of evidence from plaintiff to defendant since there is a presumption of regularity. Without return of service: Burden is on plaintiff. In the Mapa case though, while there was a return, return was patently irregular, thus no presumption of regularity could be had.

REMEDIAL LAW REVIEWER

VII. MOTIONS
1. Motions in general 2. Motions for Bill of Particulars 3. Motion to Dismiss

Exception: Oral motions: (1) Made in open court; (2) In the course of a hearing/trial.

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d. Notice of hearing and hearing of motions


Requisites of motions (not made in open court or in the course of hearing/trial) (1) In writing; [Rule 15, Sec. 2] (2) Hearing on the motion set by the applicant Notice of hearing shall be addressed to all parties, and shall specify the time and date of the hearing which shall not be later than 10 days from the filing of the motion. [Rule 15, Sec. 5] Notice must be addressed to the counsels. A notice of hearing addressed to the clerk of court, and not to the parties, is no notice at all. Accordingly, a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper, as if it were not filed; hence, it did not suspend the running of the period to appeal. [Provident International Resources v. CA (1996)] (3) Motion and notice of hearing must be served at least 3 days before the date of hearing; [Rule 15, Sec. 4] Purpose: To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion. Exceptions: (1) Ex parte motions; (2) Urgent motions; (3) Motions agreed upon by the parties to be heard on shorter notice, or jointly submitted by the parties; (4) Motions for summary judgment which must be served at least 10 days before its hearing.

1. Motions in general
a. Definition of a motion
An application for relief other than by a pleading [Rule 15, Sec. 1] Motion day [Rule 15, Sec. 7] Except for urgent motions, motions are scheduled for hearing: (1) On Friday afternoons; (2) Afternoon of the next working day, if Friday is a non-working day. Motion for leave to file a pleading/motion [Rule 15, Sec. 9] Must be accompanied by the pleading/motion sought to be admitted Motions not acted upon Parties and counsel should not assume that courts are bound to grant the time they pray for. After all, a motion that is not acted upon in due time is deemed denied. [Orosa v. CA (1996)]

b. Motions versus pleadings


Motion Contains allegations of facts Prays for a relief Grant of the relief does not extinguish the action (interlocutory relief) Generally in writing (with some exceptions) Pleading Contains allegations of the ultimate facts Prays for a relief Grant of relief extinguishes the action (final relief) Always in writing

Proof of service [Rule 15, Sec. 6]


General rule: A written motion set for hearing will not be acted upon by the court if there is no proof of service thereof. What may be proof: (1) If by registered mail: Affidavit or registry receipt or postmark on envelope or return card, with an explanation. (2) If by personal service: Affidavit or acknowledgment of receipt by the other party. Exceptions: (1) If the motion is one which the court can hear ex parte. (2) If the court is satisfied that the rights of the adverse parties are not affected by the motion. (3) If the party is in default because such a party is not entitled to notice.

General rule: A motion cannot pray for judgment. Exception: (1) Motion for judgment on the pleadings. (2) Motion for summary judgment. (3) Motion for judgment on demurrer to evidence.

c. Contents and form of motions


Contents [Rule 15, Sec. 3] (1) Relief sought to be obtained (2) Grounds upon which it is based (3) If it is required/necessary to prove facts alleged in a motion, it shall be accompanied by supporting affidavits and other papers. (4) Motions raising factual issues must be supported by affidavits. Form of motions [Rule 15, Sec. 2] General rule: In writing.

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e. Omnibus motion rule [Rule 15, Sec. 8]
The purpose of a BOP is to define/ clarify/particularize/limit/circumscribe the issues in the case to expedite the trial and assist the court. The only question to be resolved in a motion for a BOP is WON the allegations in the complaint are averred with sufficient definiteness/particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. [Tantuico, Jr. v. Republic (1991)] A BOP becomes part of the pleading for which it was intended. [Rule 12, Sec. 6] When applied for [Rule 12, Sec. 1] (1) Before responding to a pleading (2) If the pleading is a reply, within 10 days from service thereof What a motion for bill of particulars should point out [Rule 12, Sec. 1] (1) The defects complained of; (2) The paragraph wherein they are contained; (3) The details desired.

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Definition: A motion attacking a pleading/order/ judgment/proceeding must include all objections then available. All objections not included in the motion are deemed waived. Exception: When the courts jurisdiction is in issue: (1) LOJ over subject-matter; (2) Litis pendentia; (3) Res judicata; (4) Prescription.

f. Litigated and ex parte motions


Kinds of Motion (1) MOTION EX PARTE - Made without notification to the other party because the question generally presented is not debatable. (2) LITIGATED MOTION - Made with notice to the adverse party so that an opposition thereto may be made. (3) MOTION OF COURSE - Motion for a kind of relief/remedy to which the movant is entitled to as a matter of right, Allegations contained in such motion do not have to be investigated/verified. (4) SPECIAL MOTION - Discretion of the court is involved. An investigation of the facts alleged is required.

b. Actions of the court [Rule 12, Sec. 2]


(1) Deny; (2) Grant the motion outright; (3) Allow the parties the opportunity to be heard.

g. Pro-forma motions
PRO FORMA MOTION A motion failing to indicate time and date of the hearing

c. Compliance with the order and effect of non-compliance


Compliance with order [Rule 12, Sec. 3] If motion for BOP is granted wholly/partially: (1) Within 10 days from notice of order, BOP or a more definite statement should be submitted (unless court fixes a different period). (2) BOP or definite statement filed either as a separate pleading or as an amended pleading, a copy of which must be served on the adverse party. Effect of non-compliance [Rule 12, Sec. 4] In case of non-compliance or insufficient compliance with the order for BOP, the court: (1) May order the striking out of the pleading (or portion thereof) to which the order is directed; OR (2) Make such order as it may deem just. If the plaintiff fails to obey, his complaint may be dismissed with prejudice unless otherwise ordered by the court. [Rule 12, Sec. 4; Rule 17, Sec. 3] If defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff. [Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4]

2. Motions for Bill of Particulars


Bill of particulars (ASKED IN THE 2003 BAR EXAM) Definition: It is a detailed explanation respecting any matter which is not averred with sufficient definiteness/particularity in the complaint as to enable a party to properly prepare his responsive pleading or to prepare for trial. [Rule 12, Sec. 1]

a. Purpose and when applied for


It is filed by the plaintiff pursuant to a court order issued upon granting a motion for BOP filed by the defendant before the latter files an answer. In said motion, the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint. An action cannot be dismissed on the ground that the complaint is vague/indefinite. The remedy of the defendant is to move for a BOP or avail of the proper mode of discovery. [Galeon v. Galeon (1973)] Purpose To inform the adverse party more specifically of the precise nature and character of the cause of action or defense alleged in the pleading, with the view of enabling him to prepare properly his responsive pleading or to prepare for trial.

d. Effect on the period to file a responsive pleading [Rule 12, Sec. 5]


A Motion for BOP interrupts the period to file a responsive pleading.

REMEDIAL LAW REVIEWER


The period to which the movant is entitled at the time of filing of the motion, which shall not be less than 5 days in any event. NOTE the following distinctions: Bill of Particulars (BOP) Purpose is to enable a party bound to respond to a pleading to get more details about matters which are alleged generally or which are indefinite and vague, so as to properly guide such party in answering the pleading and to avoid surprise in the trial of the case Available to the defendant before he files his responsive pleading Intervention Purpose is to enable a person not yet a party to an action, yet having a certain right or interest in such action, the opportunity to appear and be joined so he could assert or protect such right or interest (a) Upon notice by plaintiff; (b) Upon motion by plaintiff; (c) Due to fault of plaintiff. (3) Demurrer to evidence after plaintiff has completed the presentation of his evidence under Rule 33; (4) Dismissal of an appeal. Note: A MTD shall be proved/disproved according to the rules of evidence. The hearing shall be conducted as an ordinary hearing and the parties shall be allowed to present evidence, except when the motion is based upon failure of the complaint to state a cause of action. When the MTD is based on facts not appearing of record, the court may hear the matter on affidavits/depositions.

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Available to any person not yet a party to the action at any time after the commencement of an action, even during the proceeding, but not after the trial has been concluded

a. Grounds [Rule 16, Sec. 1] (Asked in the 2008 Bar Exam)


i. ii. iii. iv. v. vi. vii. viii. ix. x. xi. LOJ over the defendants person LOJ over the subject matter of the claim Improper venue Plaintiffs lack of legal capacity to sue Litie pendentia Res judicata Prescription Failure to state a cause of action Extinguished claim Unenforceable claim under the Statute of Frauds Non-compliance with a condition precedent for filing claim

Terminating the action before trial

3. Motion to Dismiss
Definition A remedy of the defendant, or the responding party in general, which attacks the entire pleading and seeks its dismissal based on: (1) Grounds which are patent on the face of the complaint; (2) Defenses available to the defendant at the time of the filing of the complaint It hypothetically admits the facts stated in the complaint. It is not a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof. General rule: A court may not motu propio dismiss a case, unless a motion to that effect is filed by a party. Exception: (1) Cases where the court may dismiss a case motu propio; [Rule 9, Sec. 1] (2) Failure to prosecute; [Rule 17, Sec. 3] (3) Sec. 4, Revised Rule on Summary Procedure. Types of dismissal of action (1) MTD before answer under Rule 16; (2) MTD under Rule 17:

i. LOJ over the defendants person The objection of LOJ over the person on account of lack of service or defective service of summons, must be raised: (1) At the very first opportunity; (2) Before any voluntary appearance is made. If a defendant had not been properly summoned, the period to file a MTD for LOJ over his person does not commence to run until he voluntarily submits to the jurisdiction of the court. [Laus v. CA (1993)] Appearance of counsel is equivalent to summons, unless such is made to protest the jurisdiction of the court over the person of the defendant. If grounds other than invalid service of summons are raised, it cannot be considered as a special appearance. [De los Santos v. Montesa (1993)] ii. LOJ over the subject matter of the claim If the complaint shows on its face LOJ, the court may dismiss the case outright instead of hearing the motion. A MTD on the ground of LOJover the subject matter may be raised either: (1) Before answer; (2) After answer is filed; (3) After hearing had commenced;

REMEDIAL LAW REVIEWER


(4) At any stage of the proceeding, even for the first time on appeal and even if no such defense is raised in the answer. iii. Improper venue Unless and until the defendant objects to the venue in a MTD prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since, for all practical intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Improper venue may be waived and such waiver may occur by laches. [Diaz v. Adiong (1993)] A stipulation between the parties as to venue does not preclude the filing of suits in the residence of plaintiff/defendant under Rule 4, Sec. 2(b). In the absence of qualifying/restrictive words which would indicate that a specific place alone is the venue, an agreement as to venue is merely permissive and there is no waiver of right to pursue remedy in other courts. [HSBC v. Sherman (1989)] If the court erroneously denies the MTD, the remedy is prohibition. iv. Plaintiffs lack of legal capacity to sue The plaintiff lacks legal capacity to sue: (1) When he does not possess the necessary qualification to appear at the trial (e.g. when he plaintiff is not in the full exercise of his civil rights); (2) When he does not have the character which he claims, which is a matter of evidence (e.g. when he is not really a duly appointed administrator of an estate). Lack of legal capacity to sue refers to plaintiffs disability; while lack of legal personality to sue refers to the fact that the plaintiff is not a real party in interest, in which case the ground for dismissal would be that the complaint states no cause of action. v. Litis pendentia Requisites: [Anderson Group v. CA (1997) Asked in the 2007 Bar Exam] (1) Identity of parties; (2) identity of rights asserted and relief prayed for; (3) Relief founded on the same facts and the same basis; (4) Identity in the 2 proceedings should be such that any judgment which may be rendered in the other action will amount to res judicata on the action under consideration. It is not required to allege that there be a prior pending case. It is sufficient to allege and prove the pendency of another case, even if same had been brought later. It does not require that the later case be dismissed in favor of the earlier case. To determine which case should be abated, apply: (1) The More Appropriate Action Test; (2) The Interest of Justice Test, taking into account: (a) Nature of the controversy; (b) Comparative accessibility of the court to the parties; (c) Other similar factors. In both tests, the parties good faith shall be taken into consideration. The 1st case shall be abated if it is merely an anticipatory action or defense against an expected suit. The 2nd case will not be abated if it is not brought to harass. [Vitrionics Computers v. RTC (1993)] vi. Res judicata Requisites (Asked in the 2000 Bar Exam): (1) Former judgment rendered by a court having jurisdiction over the subject matter and over the parties; (2) Judgment must be a final judgment; (3) Judgment must be on the merits; There can be res judicata without a trial, such as in a judgment on the pleadings (Rule 34); a summary judgment (Rule 35); or an order of dismissal under Rule 17, Sec. 3. (4) There must be identity of parties, of subject matter and of the causes of action. For res judicata to apply, absolute identity of parties is not required because substantial identity is sufficient. Inclusion of additional parties will not affect the application of the principle of res judicata. The test of identity of cause of action lies not in the form of the action but on WON the same evidence would support and establish the former and the present causes of action. [DBP v. Pundogar (1993)] Rationale: The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided because of: (1) Public policy and necessity makes it the interest of the State that there should be an end to litigation; (2) The hardship on the individual that he should be vexed twice for the same cause. [Nabus v. CA (1991)] Two concepts of res judicata [ABALOS V. CA 1993, ASKED IN THE 1997 BAR EXAM)] (1) BAR BY PRIOR JUDGMENT Judgment on the merits in the 1st case constitutes an absolute bar to the subsequent action not only as to every matter which was offered and received to sustain or defeat the claim/demand, but also to any other admissible matter which might have been offered for that purpose and to all matters that could have been adjudged in that case. (Asked in the 2002 Bar Exam) (2) CONCLUSIVENESS OF JUDGMENT Where the 2nd action between the parties is upon a different claim/demand, the judgment in the 1st case operates as an estoppel only with regard to those issues directly controverted, upon the determination of which the judgment was rendered.

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(b) A special promise to answer for the debt, default, or miscarriage of another; (c) An agreement made in consideration of marriage, other than a mutual promise to marry; (d) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum; (e) An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein; (f) A representation as to the credit of a third person. x. Non-compliance with a condition precedent Non-compliance with PD 1508 (Katarungang Pambarangay Law) may result in dismissal of the case on the ground of non-compliance with a condition precedent.

vii. Statute of limitations Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later, the court must defer decision on the motion until such time as proof may be presented on such fact of prescription. Prescription Concerned with the fact of delay A matter of time Statutory Applies in law Based on fixed time Laches Concerned with the effect of delay A matter of equity Not statutory Applies in equity Not based on fixed time

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viii. Complaint states no cause of action Failure to state a cause of action (not lack of cause of action) is the ground for a MTD. The former means there is insufficiency in the allegations in the pleading. The latter means that there is insufficiency in the factual basis of the action. The failure to state a cause of action must be evident on the face of the complaint itself. Test: Assuming the allegations and statements to be true, does the plaintiff have a valid cause of action? A MTD based upon the ground of failure to state a cause of action imports a hypothetical admission by the defendant of the facts alleged in the complaint. If the court finds the allegations of the complaint to be sufficient but doubts their veracity, it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits. A complaint containing a premature cause of action may be dismissed for failure to state a cause of action. If the suit is not brought against the real party-ininterest, a motion to dismiss may be filed on the ground that the complaint states no cause of action. [Tanpinco v. IAC (1992)] viii. Extinguished claim That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished. ix. Unenforceable claim under the statute of frauds Article 1403 (2) CC requires certain contracts to be evidenced by some note or memorandum in order to be enforceable, to wit: (a) An agreement that by its terms is not to be performed within a year from the making thereof;

b. Resolution of Motion
During the hearing of the motion, parties shall submit: [Rule 16, Sec. 2] (1) Their arguments on questions of law; (2) Their evidence on questions of fact. Exception: Those not available at that time. If the case goes to trial, such evidence presented shall automatically be part of the evidence of the party presenting the same. After the hearing, the court may either: [Rule 16, Sec. 3] (1) Dismiss the action/claim; (2) Deny the MTD; (3) Order the amendment of pleadings. The court cannot defer the resolution of the MTD for the reason that the ground relied upon is not indubitable. The courts resolution on the MTD must clearly and distinctly state the reasons therefor.

c. Remedies of plaintiff when the complaint is dismissed


Remedies of plaintiff when motion to dismiss is granted If the motion is granted, the complaint is dismissed. Since the dismissal is final and not interlocutory in character, the plaintiff has several options: (1) Depending upon the ground for the dismissal of the action, the plaintiff may refile the

REMEDIAL LAW REVIEWER


complaint, e.g when ground for dismissal is anchored on improper venue. (2) He may appeal from the order of dismissal where the ground relied upon is one which bars refilling of complaint e.g. (a) Res judicata (b) Prescription (c) Extinguishment of the obligation (d) Violation of Statutes of Fraud (3) The plaintiff may also avail of a petition for certiorari, alleging grave abuse of discretion. [Riano] in a separate action) of a counterclaim pleaded in the answer.

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f. When grounds pleaded as affirmative defenses [Rule 16, Sec. 6]


If no MTD was filed, the grounds in Rule 16, Sec. 1 may be pleaded as an affirmative defense and the court may conduct a preliminary hearing thereon as if a MTD was filed.

g. Bar by dismissal
Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs: (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (h) That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished; and (i) - That the claim on which the action is founded is enforceable under the provisions of the statute of frauds shall bar the refiling of the same action or claim. [Rule 16, Sec. 5]

d. Remedies of the defendant when the motion is denied


1. The movant shall file his answer within the balance of the period described in Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event. Appeal is not a remedy since denial of a motion to dismiss is an interlocutory order. As a general rule, defendant files his answer and then may appeal an adverse judgment. 2. Another remedy is to file a certiorari, case under Rule 65 alleging grave abuse of discretion. [Riano]

e. Effect of dismissal of complaint on certain grounds


i. Of dismissal: [Rule 16, Sec.5] General rule: The action/claim may be re-filed. Exception: The action cannot be re-filed (although subject to appeal) if it was dismissed on any of the following grounds: (1) Res judicata; (2) Prescription; (3) Extinguishment of the claim/demand; (4) Unenforceability under the Statute of Frauds. [Rule 16, Sec. 1 (f),(h),(i)] ii. On periods for pleading: [Rule 16, Sec.4] If MTD is denied Movant must file his answer within the balance of the period under Rule 11 to which he was entitled at the time of serving his MTD (but not less than 5 days) computed from the his receipt of notice of the denial. If pleading is ordered to be amended movant must file his answer within the period under Rule 11, counted from service of the amended pleading (unless the court gives a longer period). iii. On other grounds and omnibus motion rule: MTD based on the following grounds may be filed even after filing an answer: [Rule 9, Sec. 1] (1) LOJ over subject-matter; (2) Litis pendentia; (3) Res judicata; (4) Prescription. Dismissal of the complaint under Rule 16, Sec. 6 is without prejudice to the prosecution (in the same or

h. Distinguished from demurrer to evidence under Rule 33


MTD under Rule 16 Based on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for, but prior to, the filing of the defending partys answer to the pleading asserting the claim against him If denied, defendant answers; else, he may be declared in default. If granted, plaintiff may appeal or if a subsequent case is not barred, he may re-file the case MTD under Rule 33 (Demurrer to evidence) Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff May be filed only after the plaintiff has completed the presentation of his evidence If denied, defendant may present evidence. If granted, plaintiff appeals and the order of the dismissal is reversed; the defendant loses his right to present evidence.

VIII. DISMISSAL OF ACTIONS


1. Dismissal upon notice by plaintiff; Twodismissal rule 2. Dismissal upon motion by plaintiff; effect on existing counterclaim 3. Dismissal due to the fault of plaintiff 4. Dismissal of counterclaim, cross-claim or third-party complaint

REMEDIAL LAW REVIEWER

1. Dismissal upon notice by plaintiff; Two-dismissal rule


Dismissal upon plaintiffs notice [Rule 17, Sec. 1] Dismissal here is effected not by motion but by mere notice before the service of either: (1) The answer; (2) A motion for summary judgment. Upon plaintiffs filing of notice, the court shall issue an order dismissing the case. (i.e. the court has no discretion on WON to dismiss the case). General rule: The dismissal is without prejudice. Exceptions: (1) If the notice of dismissal provides that it is with prejudice. The dismissal is still with prejudice even it the notice of dismissal does not so provide, where such notice is premised on the fact of payment by the defendant of the claim involved. [Serrano v. Cabrera (1953)] (2) TWO-DISMISSAL RULE If the plaintiff has previously dismissed an action based on or including the same claim, the notice operates as an adjudication upon the merits.

The case may be dismissed motu proprio or upon the defendants motion if, without justifiable cause, plaintiff fails either: (1) To appear on the date of the presentation of his evidence-in-chief on the complaint; The plaintiffs 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 crossexamine and to object to the admissibility of evidence. [Jalover v. Ytoriaga (1977)] (2) To prosecute his action for an unreasonable length of time (nolle prosequi); The test for dismissal of a case due to failure to prosecute is WON, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. [Calalang v. CA (1993)] (3) To comply with the ROC or any court order. The dismissal has the effect of an adjudication on the merits, unless the court declares otherwise, without prejudice to the right of the defendant to prosecute his counter-claim in the same or separate action. Rule 17, Sec. 2 Dismissal is at the plaintiffs instance Dismissal is a matter of procedure, without prejudice unless otherwise stated in the court order or on plaintiffs motion for dismissal of his own complaint. Dismissal is without prejudice to the defendants right to prosecute his counterclaim in a separate action (unless within 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action). Rule 17, Sec. 3 Dismissal is not procured by plaintiff, although justified by causes imputable to him Dismissal is a matter of evidence, an adjudication on the merits

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2. Dismissal upon motion by plaintiff; effect on existing counterclaim


Dismissal upon plaintiffs motion [Rule 17, Sec. 2] Here, dismissal of the complaint is subject to the courts discretion and upon such terms and conditions as may be deemed proper by court Leave of court for the dismissal is necessary because the motion is made after a responsive pleading or a motion for summary judgment has been served. If defendant pleaded a counterclaim prior to the service upon him of the plaintiffs motion for dismissal, the dismissal shall be without prejudice to the defendants right to either: (1) Prosecute his counterclaim in a separate action; (2) Have the counterclaim resolved in the same action, by manifesting such preference within 15 days from being notified of plaintiffs motion for dismissal. Dismissal here is without prejudice, unless otherwise provided in the order. Court approval of the court is necessary in the dismissal/compromise of a class suit.

Dismissal is without prejudice to the defendants right to prosecute his counterclaim in the same or in a separate action

4. Dismissal of counterclaim, crossclaim or third-party complaint [Rule 17, Sec. 4]


This Rule applies to the dismissal of counterclaims, cross-claims or 3rd-party complaints. Where a counterclaim is made the subject of a separate suit, it may be abated upon a plea of auter action pendentia and/or dismissal on the ground of res judicata. Res judicata, however, is not

3. Dismissal due to the fault of plaintiff


Dismissal due to plaintiffs fault [Rule 17, Sec. 3]

REMEDIAL LAW REVIEWER


applicable since the court held that it did not acquire jurisdiction due to non-payment of docket fees. Dismissal on the ground of LOJ does not constitute res judicata, there being no consideration and adjudication of the case on the merits. Neither is there litis pendentia. [Meliton v. CA (1992)] Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference (PTC) all issues of law and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters. The determination of issues at a pretrial conference bars the consideration of other questions on appeal. [Caltex v. CA (1992)] When conducted: After the last pleading has been served and filed, it shall be the plaintiffs duty to move ex parte that the case be set for pre-trial. [Rule 18, Sec. 1] A pre-trial cannot validly be held until the last pleading has been filed, which last pleading may be the plaintiff's reply, except where the period to file the last pleading has lapsed. Discretion to declare a party non-suited in PTC must not be abused. Unless a party is so negligent, irresponsible, contumacious, or dilatory as to provide substantial grounds for dismissal for non-appearance, the court should consider lesser sanctions which would still amount to achieving the end desired. [Calalang v. CA (1993)]

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IX. PRE-TRIAL
1. 2. 3. 4. Concept of pre-trial Nature and purpose Notice of pre-trial Appearance of parties; effect of failure to appear 5. Pre-trial brief; effect of failure to appear 6. Distinction between pre-trial in civil case and pre-trial in criminal case 7. Alternative Dispute Resolution (ADR)

1. Concept of pre-trial
Definition A mandatory conference and personal confrontation before the judge between the parties litigant and their representative counsels, called by the court after the joinder of issues in a case or after the last pleading has been filed and before trial, for the purpose of settling the litigation expeditiously or simplifying the issues without sacrificing the necessary demands of justice (Asked in the 1999 Bar Examination, Examiner asked to compare this with proceedings in the Katarungang Pambarangay).

3. Notice of pre-trial [Rule 18, Sec. 3]


Notice of pre-trial shall be served on counsel, or on the party who has no counsel. Counsel served with such notice has a duty to notify the party he represents. At the start of the preliminary conference, the judge is mandated to refer the parties and/or their counsels to the mediation unit of the Philippine Mediation Center (PMC) for purposes of mediation. If the mediation fails, the judge will schedule the continuance of the preliminary conference. This rule applies to Metro Manila, Cebu Davao City, and other place where PMC Units may be further organized and designated. [Admin, Circular No. 20-2002; Admin. Circular No. 50-2005, April 26, 2005]

2. Nature and purpose


Purpose To consider: [Rule 18, Sec. 2] Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; Simplification of the issues; Necessity/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 therefor be found to exist; Advisability/necessity of suspending the proceedings; and Other matters that may aid in the prompt disposition of the action. Note: Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised.

4. Appearance of parties; effect of failure to appear


Appearance of parties [Rule 18, Sec. 4] It is the duty of the parties and their counsel to appear at the pre-trial. A partys non-appearance may be excused only if either: Valid cause is shown for it; A representative appears in his behalf, fully authorized in writing: - To enter into an amicable settlement; - To submit to alternative modes of dispute resolution; - To enter into stipulations/admissions of facts and of documents. Citibank v. Chua (1993): SC admonishes the courts against precipitate orders of default as they have the effect of denying the party the chance to be heard.

REMEDIAL LAW REVIEWER


There are instances when parties may properly be defaulted, but such is the exception rather than the rule and should be used only in clear cases of obstinate refusal or inordinate neglect to comply with court orders. Failure to appear at pre-trial Who fails to appear Plaintiff Effect Cause for dismissal of the action which will be with prejudice, unless otherwise ordered by the court Cause to allow plaintiff to present evidence ex parte, and court to render judgment on the basis thereof As in default (failure to appear by plaintiff) (Rule 18, Sec. 5) Not required Not required Court to allow plaintiff to present evidence ex parte, then the court shall render judgment Relief awarded may be of different nature and amount from the relief prayed for

5. Pre-trial brief; effect of failure to appear


Pre-trial brief [Rule 18, Sec. 6] Parties shall file and serve their respective pretrial briefs, ensuring receipt by adverse party at least 3 days before the date of the pre-trial. Pre-trial briefs contents (Asked in the 2001 Bar Exam): - Statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; - Summary of admitted facts and proposed stipulation of facts; - Issues to be tried/resolved; - Documents/exhibits to be presented, stating the purpose thereof; - Manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; - Number and names of the witnesses, and the substance of their respective testimonies. NOTE: Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. Record of pre-trial [Rule 18, Sec. 6] The pre-trial proceedings shall be recorded. Upon termination of such proceedings, the court shall issue the pre-trial order. Pre-trial orders contents: - Matters taken up in the conference; - Action taken thereon; - Amendments allowed on the pleadings; - Agreements/admissions made by the parties as to any matters considered; - Should the action proceed to trial, the explicit definition and limit of the issues to be tried. Consequence: The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice. Upon manifestation of the parties of their willingness to discuss a compromise, the TC should order the suspension of the proceedings to allow them reasonable time to discuss and conclude an amicable settlement. If despite all efforts exerted by the TC and the parties the settlement conference still fails, then the action should have continued as if no suspension had taken place. [Goldloop Properties v. CA (1992)] Note: AM 03-1-09-SC (No termination of pre-trial for failure to settle) Calendar of Cases Under the direct supervision of the judge, the clerk of court shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned/postponed, and those with motions to set for hearing. [Rule 20, Sec. 1]

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Defendant

Default by defendant (Rule 9, Sec. 3) Upon motion and notice to defendant. Requires proof of failure to answer Court to render judgment, unless it requires submission of evidence Relief awarded must be the same in nature and amount as prayed for in the complaint

A defendant who already filed an answer cannot be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. [Lesaca v. CA (1992)] The Revised Rules on Summary Procedure does not provide that an answer filed after the reglementary period should be expunged from the records. As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer. The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure. Such a motion is allowed under Sec. 19(a) thereof. [Bayog v. Natino (1996)] Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control. Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order. [Malanyaon v. Sunga (1992)]

REMEDIAL LAW REVIEWER


Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. [Rule 20, Sec. 1] The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. [Rule 20, Sec. 2] Civil Case A pre-trial brief is specifically required to be submitted [Rule 18, Sec. 6] Criminal Case A pre-trial brief is not specifically required.

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6. Distinction between pre-trial in civil case and pre-trial in criminal case (Bar 1997, Riano)
Civil Case Set when the plaintiff moves ex parte to set the case for pre-trial [Rule 18, Sec. 1] Criminal Case Ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense [Rule 118, Sec. 1] Ordered by the court after arraignment and within 30 days from the sate the court acquired jurisdiction over the person of the accused [Rule 118, Sec. 1] Does not include the considering of the possibility of amicable settlement of ones criminal liability as one of its purposes [Rule 118, Sec. 1] (Stricter procedure) 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. [Rule 118, Sec. 2]

7. Alternative (ADR)

Dispute

Resolution

X. INTERVENTION
1. Requisites for intervention 2. Time to intervene 3. Remedy for the denial of motion to intervene
Definition of intervention (Asked in the 2003 Bar Exam) A legal remedy whereby a person is permitted to become a party in a case, by either: Joining the plaintiff; Joining the defendant; Asserting his right against both plaintiff and defendant, considering that either: - He has a legal interest in the subject matter of the action; - He is going to be adversely affected by the disposition of the property in the custody of the court Metropolitan Bank v. Presiding Judge (1990): Intervention is a proceeding in a suit/action by which a 3rd person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them. Cario vs. Ofilada (1993): It is the act/proceeding by which a 3rd person becomes a party in a suit pending between others. It is the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings. An intervenor is a party to the action as the original parties are, and to make his right effectual he must necessarily have the same powers as the original parties. He is entitled to have the issues raised between him and the original parties tried and determined. Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest. Hence, the final dismissal of the principal action results into the dismissal of said ancillary action. Who may intervene [Rule 19, Sec. 1]

Made after the pleading has been served and filed [Rule 18, Sec. 1]

Considered the possibility of an amicable settlement as an important objective [Rule 118, Sec. 2(a)] The arrangements and admissions in the pretrial are not required to be signed by both parties and their counsels. Under the Rules, they are instead to be contained in the record of pre-trial and pre-trial order [Rule 18, Sec. 7] [AM No. 03-1-09] requires the proceedings during the preliminary conference to be recorded in the Minutes of Preliminary Conference to be signed by both parties and/or counsel. (Note: either party or his counsel is allowed to sign) The sanctions for nonappearance are imposed upon the plaintiff and the defendant [Rule 18, Sec. 4]

Sanctions are imposed upon the counsel for the accused or the prosecutor [Rule 118, Sec. 3]

REMEDIAL LAW REVIEWER


One who has a legal interest in the matter in litigation; One who has a legal interest in the success of either of the parties; One who has an interest against both parties; One who is so situated as to be adversely affected by a distribution/disposition of property in the courts custody. Meaning of legal interest One that is actual and material, direct and of an immediate character, not merely contingent or expectant so that that intervenor will either gain or lose by the direct legal operation of the judgment. When the title to the property if declared void by final judgment, intervention will not revive or reinstate the movants title derived from the title declared void. [Firestone Ceramics vs. CA (1999)] The assignee of a property who assumed payment of whatever amount may be finally adjudged against the assignor, may intervene in a proceeding involving the execution of the property pursuant to a judgment. [Robles vs. Timario (1962)] In an action for foreclosure of mortgage, the alleged owners of the land sought ot be foreclosed may intervene. [Roxas vs. Dinglasan (1969)] Magsaysay-Labrador v. CA (1989): Interest in the subject means a direct interest in the cause of action as pleaded and which would put the intervenor in a legal position to litigate a fact alleged in the complaint, without the establishment of which plaintiff could not recover. Pleadings in intervention [Rule 19, Sec. 3] COMPLAINT-IN-INTERVENTION If intervenor asserts a claim against either or all of the original parties. ANSWER-IN-INTERVENTION If intervenor unites with the defending party in resisting a claim against the latter. Answer to complaint-in-intervention [Rule 19, Sec. 4] It must be filed within 15 days from notice of the order admitting the complaint-in-intervention, unless a different period is fixed by the court. Intervention An ancillary action Proper in any of the four situations mentioned in Rule 19 Interpleader An original action Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein, which in whole or in part is not disputed by the other parties to the action Defendants are being sued precisely to implead them

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1. Requisites for intervention


How intervention is done By a motion to intervene, with the pleading-inintervention attached. Must also serve copy of the pleading-in-intervention on the original parties. [Rule 19, Sec. 2] General rule: Allowance discretionary with the court. of intervention is

There is already a defendant among the original parties to the pending suit

2. Time to intervene
Intervention is allowed any time before TC renders judgment. [Rule 19, Sec. 2] After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the movants right. The movants remedy is to file a separate action.

Exception: When the intervenor is an indispensable party. Factors considered in allowing intervention WON intervention will unduly delay or prejudice the adjudication of the rights of the original parties. WON the intervenor's rights may be fully protected in a separate proceeding. Carino vs Ofilada (1993): The interest must be actual and material, direct and immediate; not simply contingent or expectant. It must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.

3. Remedy for the denial of motion to intervene


Remedies For denial of intervention: - Appeal. - Mandamus, if there is GAD. For improper granting of Certiorari.

intervention:

XI. SUBPOENA
1. 2. 3. 4. Subpoena duces tecum Subpoena ad testificandum Service of subpoena Compelling attendance of Contempt 5. Quashing of subpoena

witnesses;

REMEDIAL LAW REVIEWER


Subpoena is a process issued by court which is either: Types (and definition) of subpoena [Rule 21, Sec. 1] Subpoena duces tecum Subpoena ad testificandum By whom issued [Rule 21, Sec. 2] The court before whom the witness is required to attend; The court of the place where the deposition is to be taken; The officer/body authorized by law to do so in connection with investigations conducted by said officer/body; Any SC/CA Justice in any case or investigation pending within the Philippines. Form and contents of subpoena [Rule 21, Sec. 3] Name of court; Title of action/investigation; Directed to a person whose attendance is required If subpoena duces tecum, a reasonable description of the books/documents/things demanded which must appear to the court prima facie relevant. Subpoena for depositions [Rule 21, Sec. 5] Proof of service of a notice to take a deposition is sufficient authorization for the issuance of subpoena ad testificandum for the persons named in the notice. Issued by the clerk of court of the place in which the deposition is to be taken. However, subpoena duces tecum for depositions cannot be issued without court order. Exception: Tender not required if subpoena is issued by or on behalf of the Republic or an officer/agency thereof. For subpoena duces tecum, also tender the reasonable cost of producing the books/documents/things demanded. Service must be made so as to allow the witness reasonable time for preparation and travel to the place of attendance

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4. Compelling attendance witnesses; Contempt

of

Personal appearance in court [Rule 21, Sec. 7] A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court/officer. Application for subpoena to prisoner [Rule 21, Sec. 2] The judge/officer shall examine and study the application carefully to determine WON it is made for a valid purpose. However, no prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in a penal institution shall be brought outside for appearance/attendance in any court unless authorized by the SC. Remedy in case of witness failure to attend Upon proof of service of subpoena and of witness failure to attend, the court/judge issuing the subpoena may issue a warrant to the sheriff to arrest the witness and bring him before the court/officer where his attendance is required. [Rule 21, Sec. 8] The cost of warrant and seizure shall be paid by the witness if the court determines that the failure to attend was willful and without just excuse. Such failure shall be deemed a contempt of the court which issued the subpoena. [Rule 21, Sec. 9] If subpoena was not issued by a court, the disobedience shall be punished by applicable law or ROC. Exception: Arrest warrant and contempt not applicable to: [Rule 21, Sec. 10] A witness who resides more than 100km from his residence to the place where he is to testify. A detention prisoner, if there is no permission from the court in which his case is pending.

1. Subpoena duces tecum


Process directed to a person, requiring him to bring with him any books/documents/things under his control. (Asked in the 1997 Bar Exam) Subpoena duces tecum distinguished from Order for production or inspection See Annex B.

2. Subpoena ad testificandum
Process directed to a person, requiring him to attend and to testify at the hearing/trial of an action or at any investigation conducted by competent authority, or for the taking of his deposition.

3. Service of subpoena [Rule 21, Sec. 6]


Same manner as personal or substituted service of summons. The original shall be exhibited and a copy delivered to person on whom it is served, with tender of fees for one days attendance and kilometrage.

5. Quashing of subpoena [Rule 21, Sec. 4]


Upon motion promptly made, at/before the time specified in the subpoena. Grounds for quashing: Subpoena duces tecum: - It is unreasonable and oppressive; - The relevancy of the books/documents/ things does not appear;

REMEDIAL LAW REVIEWER


- The person in whose behalf the subpoena is issued fails to advance the reasonable cost of production; - Witness fees and kilometrage were not tendered when subpoena was served. Subpoena ad testificandum: - That the witness is not bound thereby; - That witness fees and kilometrage were not tendered when the subpoena was served. documents, or other tangible things and the identity of any persons having knowledge of relevant facts. [Rule 23, sec. 2]

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c. Uses of deposition pending action


Dasmarias Garments,Inc. v. Reyes (1993): General Rule: A deposition is not generally supposed to be a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a partys or witness deposition is inadmissible in evidence for being hearsay. Exception: [Rule 23, Section 4] Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: - that the witness is dead; or - that the witness resides at a distance more than one hundred (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; or - that the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment; or - that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or - upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

XII. MODES OF DISCOVERY


1. Depositions pending action; Depositions before action or pending appeal 2. Written interrogatories to adverse parties 3. Request for Admission 4. Production or inspection of documents or things 5. Physical and mental examination of persons 6. Consequences of refusal to comply with modes of discovery

1. Depositions pending action; Depositions before action or pending appeal [RULES 23 and 24]
Depositions Under Rule 23 a. Meaning and purpose of deposition
Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial. The liberty of a party to avail of such modes of discovery is unrestricted if the matters inquired into are relevant and not privileged, and the inquiry is made in good faith and within the bounds of the law. Limitations would arise if the examination is conducted in bad faith; or in such a manner as to annoy, embarrass or oppress the person under examination; or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege. Under certain conditions and for certain limited purposes, it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand. [Jonathan Landoil v Mangudadatu (2006)]

d. Before whom taken


General Rule: Depositions may be taken before any judge, notary public, or the person referred to in section 14 (which refers to any person authorized to administer oaths designated by the parties by stipulation). Exceptions: In our jurisdiction, depositions in foreign countries may be taken: on notice before a secretary of embassy or legation, consul general, consul, vice consul, or

b. Scope of examination
Unless otherwise provided by the court, the deponent may be examined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any party including the existence, description, nature, custody, condition and location of any books,

REMEDIAL LAW REVIEWER


consular agent of the Republic of the Philippines; before such person or officer as may be appointed by commission or under letters rogatory; or before any person authorized to administer oaths as stipulated in writing by the parties. interposed during the course of the deposition although any objections shall be noted by him upon the deposition. Any evidence that is objected to shall still be taken but subject to the objection. [Rule 23, Section 17]

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f. When may taking of deposition terminated or its scope limited

be

COMMISSION Addressed to whom Any authority in a foreign country authorized therein to take down depositions Rules laid down by the court issuing the commission Preferred over letters rogatory since the process is simpler (generally, no need to resort to diplomatic channels unlike in letters rogatory)

LETTERS ROGATORY A judicial authority in the foreign country Rules laid down by such foreign judicial authority Generally resorted to when there is difficulty or impossibility of obtaining the deposition by commission (Regalado) is: of or or

The court in which the action is pending or the RTC of the place where the deposition is being taken may order the officer conducting the examination to cease from taking the deposition, or may limit the scope and manner of taking the deposition WHEN: At any time during the taking of the deposition, on the motion or petition of any party or of the deponent GROUND: that the examination is being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass or oppress the deponent or party [Rule 23, sec. 18] If the order made terminates the examination, it shall be resumed only upon the order of the court in which the action is pending.

Rules that govern the deposition When issued

g. When may objections to errors and irregularities be made [Rule 23, sec. 29]
Objection As to notice to parties Deposition officer disqualified is When Made Waived, unless written objection is promptly served upon party giving notice Waived, unless made before the taking of the deposition or as soon as the disqualification becomes known or could be discovered with reasonable certainty NOT waived by failure to make them before or during the taking of the deposition, unless the ground for the objection is one which might have been obviated or removed if presented at that time Waived, unless reasonable objection is made at the taking of the deposition 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 Waived, unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with reasonable diligence might have been, ascertained

No deposition shall be taken before a person who [Rule 23, sec. 13] a relative within the sixth degree consanguinity or affinity, or employee or counsel of any of the parties, who is a relative within the same degree, employee of such counsel; or who is financially interested in the action.

e. Procedure
A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every party to the action stating the time and place for taking the deposition and the name and address of each person to be examined. [Rule 23, Section 15] After the notice is served, the court may make any order for the protection of the parties and the deponent. [Rule 23, Section 16] The attendance of the witnesses may be compelled by the use of subpoenas. [Rule 23, Section 1] The deponent may be examined or cross examined following the procedures for witnesses in a trial. He may be asked questions on direct, cross, re-direct or re-cross. He has the same rights as a witness and may be impeached like a court witness because Sections 3 to 18 of Rule 132 apply to deponent. [Rule 23, Section 3] The officer before whom the deposition is being taken has no authority to rule on objections

Lack of relevance, materiality and competence of the deposition to the action Error in the manner of taking the deposition Error in the form of written interrogatories

Error in manner preparing deposition

the of the

REMEDIAL LAW REVIEWER


h. Other rules
Effect of substitution of parties [Rule 23, Sec. 5] Substitution of parties 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 in interest, all depositions lawfully taken and duly filed in the former action MAY BE USED IN THE LATTER AS IF ORIGINALLY TAKEN THEREFOR. Effect of taking deposition [Rule 23, Sec. 7] A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. Effect of using deposition [Rule 23, Sec. 8] General Rule: Introduction in evidence of deposition or any part thereof for any purpose makes the deponent the witness of the party introducing the deposition. Exception: if the purpose is to contradict or impeach the deponent. Leave of court [Rule 23, Sec. 1] Leave of court is NOT required after an answer has been served. It is required before the service of an answer but after jurisdiction has been acquired over the defendant or over the property subject of the action. ONLY INSTANCE WHEN ONE ALWAYS NEEDS LEAVE OF COURT BEFORE TAKING DEPOSITIONS: Where the deponent is in jail. to rely on such a defense, that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion. The use of discovery procedure in criminal cases is directed to the sound discretion of the trial judge. The deposition taking cannot be based nor can it be denied on flimsy reasons. Discretion has to be exercised in a reasonable manner and in consonance with the spirit of the law. Dasmarias Garments v. Reyes (1993): Any deposition offered to prove the facts therein at the trial of the case, in lieu of actual testimony of the deponent in court, may be opposed and excluded for being hearsay save in specific instances under the Rules.

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Depositions Before Action Under Rule 24


Purpose To perpetuate the testimony of witnesses for probable use in the event of further proceedings in said court. Procedure FILE A VERIFIED PETITION IN THE COURT OF THE PLACE OF THE RESIDENCE OF ANY EXPECTED ADVERSE PARTY. The petition shall be entitled in the name of the petitioner and shall show: 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; the subject matter of the expected action and his interest therein; the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from 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. NOTICE AND SERVICE to 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.

Written Interrogatories under Rule 23


A deposition need not be conducted through an oral examination. It may be conducted through written interrogatories which shall be served upon every other party. The party served may also serve crossinterrogatories upon the party proposing to take the deposition within 10 days from service of the written interrogatories. The latter may, within 5 days serve re-direct interrogatories and within 3 days the other party may serve re-cross interrogatories [Rule 23, Sec. 25] Copies of all these interrogatories shall be delivered to the officer before whom the deposition is taken and who shall take the responses and prepare the record. [Rule 23, Sec. 26] People v. Hubert Webb (1999): DEPOSITION, WHEN AVAILABLE IN CRIMINAL CASES: A deposition, in keeping with its nature as a mode of discovery, should be taken BEFORE AND NOT DURING TRIAL. In fact, rules on criminal practice - particularly on the defense of alibi, which is respondents main defense in the criminal proceedings against him in the court below - states that when a person intends

REMEDIAL LAW REVIEWER


ORDER AND EXAMINATION: If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. Note: Procedure for taking deposition by oral examination or written interrogatories will be governed by Rule 23 on depositions de bene esse. NOTE: Interrogatories under RULE 25 are served directly upon the adverse party unlike written interrogatories under RULE 23 which are delivered to the officer before whom the deposition is to be taken.

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c. Answer
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. [Rule 25, Sec. 2]

Depositions Pending Appeal Under Rule 24


J. Regalado believes that the following procedure is applicable to civil and criminal cases. Procedure: DURING THE PENDENCY OF AN APPEAL, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony in the event of further proceedings in the said court. The party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state: the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and the reason for perpetuating their testimony. ORDER ALLOWING THE DEPOSITION: 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 deposition to be taken.

d. Effect of objections to interrogatories


When objections to any interrogatories is presented to the court within 10 days after service thereof, with notice as in case of a motion, the answer shall be deferred until the objections are resolved [Rule 25, Sec. 3]

e. Number of interrogatories
No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. [Rule 23, Sec. 4]

f. Scope of interrogatories
Any matter not privileged, and relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.

2. Written interrogatories to adverse parties [RULE 25]


a. Purpose
This mode of discovery is availed of by the party to the action for the purpose of eliciting material and relevant facts from any of the adverse party. [Rule 25, Sec. 1]

g. Use of interrogatories
Same as Rule 23, Sec. 4 mutatis mutandis.

h. Failure to file written interrogatories


A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal, UNLESS allowed by the court for good cause shown and to prevent failure of justice.

b. Procedure
By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or Without such leave after an answer has been served, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served, or if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf.

i. Consequences of refusal to answer


The party serving the interrogatories may apply to the court for an order to compel an answer. If court also finds that the refusal to answer was without substantial justification, it may require 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

REMEDIAL LAW REVIEWER


THE ORDER, INCLUDING ATTORNEY'S FEES (Rule 29, Sec. 1). Refusal to comply with an order of the court to compel an answer may be considered CONTEMPT of that court (Rule 29, Sec. 2) The subject of discovery shall be DEEMED ADMITTED OR ESTABLISHED (Rule 29 Sec. 3a). The disobedient party shall be prohibited from introducing CONTRADICTORY EVIDENCE (Rule 29, Sec. 3b) STRIKING OUT OF PLEADINGS OR PARTS THEREOF (RULE 29, SECTION 3c) STAYING FURTHER PROCEEDINGS UNTIL THE ORDER IS OBEYED (RULE 29, SECTION 3c) DISMISSING THE ACTION OR PROCEEDING OR ANY PART THEREOF(RULE 29, SECTION 3c) RENDERING A JUDGMENT BY DEFAULT AGAINST THE DISOBEDIENT PARTY; AND (RULE 29, SECTION 3c) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders [RULE 29, Sec. 3c] - setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.

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d. Deferment of compliance
To avoid the implied admission, the party requested may have the compliance of the filing and service of the sworn statement be deferred by filing with court objections to the request for admission. Compliance shall be deferred until such objections are resolved by the court. [Rule 26, Sec. 2 par. 2]

e. Effect of admission
Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. [Rule 26, Sec. 3]

3. Request for Admission [RULE 26]


a. Purpose
To allow one party to request the adverse in writing to admit certain material and relevant matters which most likely will not be disputed during the trial. To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to: - admit the genuineness of any material and relevant document described in and exhibited with the request; or - admit the truth of any material and relevant matter of fact set forth in the request [Rule 26, Sec. 1]

f. Withdrawal
The court may allow the party making an admission, whether express or implied under the Rule to withdraw or amend it upon such terms as may be just. The admitting party must file a motion to be relieved of the effects of his admissions.

g. Effect of failure to file and serve request for admission


General rule: The party who fails to file a request shall not be permitted to present evidence on such facts. Exception: Unless otherwise allowed by the court for: - good cause shown and - to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which ARE, OR OUGHT TO BE, WITHIN THE PERSONAL KNOWLEDGE OF THE LATTER [Rule 26, Sec. 5]

b. When may request be made


At any time after issues have been joined. Duque v. CA (2002): The request for admission MUST BE SERVED ON THE PARTY and NOT ON THE COUNSEL. This is an exception to the general rule that notices shall be served upon counsel and not upon the party.

c. Implied admission by adverse party


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 matters of which an admission is requested, or

4. Production or inspection documents or things [RULE 27]


a. Procedure

of

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. [Rule 27, Sec. 1] The court in which the action is pending shall issue an order: which shall specify the time, place and manner

REMEDIAL LAW REVIEWER


of making the inspection and taking copies and photographs, and which may prescribe such terms and conditions as are just. [Rule 27, Sec. 1] previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just If it is the physician who fails or refuses to make such a report the court may exclude his testimony if offered at the trial. [Rule 28, Sec. 3]

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b. What the court may order


To PRODUCE and PERMIT THE INSPECTION and copying or photographing, by or on behalf of the moving party, of any 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 the possession, custody or control of the party to whom the order is addressed. To PERMIT ENTRY upon designated land or other property in the position or control of the party to whom the order is addressed for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. [Rule 27, Sec. 1] NOTE: This mode of discovery does not mean that the person who is required to produce the document or the thing will be deprived of its possession even temporarily. It is enough that the requesting party be given the opportunity to inspect or copy or photograph the document or take a look at the thing. (Regalado) (Asked in the 2002 Bar Exam)

d. Waiver or privilege
By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined 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 examined or may thereafter examine him in respect of the same mental or physical examination.

e. Physician-Patient Privilege
Inapplicable because the results of the examination are intended to be made public. Such examination is not necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physic al or mental condition.

6. Consequences of refusal to comply with modes of discovery


See Annex C.

5. Physical and mental examination of persons [Rule 28]


a. Motion requesting Examination
Requisites The physical or mental condition of a party (NOT A WITNESS!) is in controversy Motion must be filed showing good cause Notice given to the party to be examined and to all other parties Notice must specify the time, place, manner, conditions and scope of examination Notice must also specify person/s who will make the examination

XIII. TRIAL
1. Adjournments and postponements 2. Requisites of motion to postpone trial a. For absence of evidence b. For illness of party or counsel 3. Agreed statement of facts 4. Order of trial; reversal of order 5. Consolidation or Severance of hearing or trial 6. Delegation of reception of evidence 7. Trial by commissioners a. Reference by consent or ordered on motion b. Powers of the commissioner c. Commissioners report; notice to parties and hearing on the report
Trial, defined A trial is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments [Acosta v. People]. A hearing is a broader term. It is not confined to the trial and presentation of the evidence because it actually embraces several stages in the litigation. It

b. Court to issue the order for examination in its discretion. c. Report of findings
If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, 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,

REMEDIAL LAW REVIEWER


includes the pre-trial and the determination of granting or denying a motion. [Trocio v Labayo] Notice of trial [Rule 30, Sec. 1] Upon entry of a case in the trial calendar, the clerk shall notify parties the date of its trial, ensuring receipt of the notice at least 5 days before the trial date. Parties may agree in writing upon the facts involved in the litigation, and submit the case for judgment without introduction of evidence. If the parties agree to only some of the facts in issue, trial shall be held as to the disputed facts in such order as the court shall prescribe.

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1. Adjournments and postponements [Rule 30, Sec. 2]


General rule: The court may adjourn a trial from day to day to any stated time, as the expeditious and convenient transaction of business may require. Exception: Court may not adjourn for longer than 1 month for each adjournment, nor more than 3 months in all. Exception to exception: When authorized in writing by the SC Court Administrator. Note: Postponement is not a matter of right. It is addressed to the sound discretion of the court. [Riano, citing Garces v Valenzuela]

4. Order of trial; reversal of order


Conduct of trial [Rule 30, Sec. 5] General rule: Trial shall be limited to the issues stated in the pre-trial order. Exception: Provisions on separate trials in Rule 31, Sec. 2 When for special reasons the court directs otherwise. General order of trial Plaintiff shall adduce evidence in support of his claim; Defendant shall adduce evidence in support of his defense, counterclaim, cross-claim and 3rd-party complaint; 3rd-party defendant (if any) shall adduce evidence of his defense, counterclaim, cross-claim and 4thparty complaint; 4th-party (and so forth) shall adduce evidence of the material facts pleaded by them; Parties whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order prescribed by the court. Parties may respectively adduce rebutting evidence only. Exception: When the court permits them to adduce evidence upon their original case, for good reasons and in furtherance of justice. Upon admission of 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. If several defendants or 3rd-party defendants having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence.

2. Requisites of motion to postpone trial


a. for absence of evidence b. for illness of party or counsel
Ground for postponement of trial For absence of evidence [Rule 30, Sec. 3] Requisite for motion to postpone Affidavit showing: The materiality/relevancy of such evidence; That due diligence has been used to procure the evidence But if the adverse party admits the facts to be given in evidence, trial shall not be postponed even if he objects or reserves the right to object to their admissibility. Affidavit or sworn certification: That the presence of such party/counsel at the trial is indispensable; That the character of his illness is such as to render his nonattendance excusable.

For illness of party/counsel [Rule 30, Sec. 4]

Subpoena See separate part for Subpoena BUT please take note that Subpoenas are issued within the context of a Trial and taking depositions under Modes of Discovery.

5. Consolidation or Severance of hearing or trial


Consolidation of trial [Rule 31, Sec. 1] When actions involving common question of law/fact are pending before the court, it may: Order a joint hearing/trial of any/all the matters in issue in the actions; Order all the actions consolidated;

3. Agreed statement of facts [Rule 30, Sec. 6]

REMEDIAL LAW REVIEWER


Make such orders concerning the proceedings as to avoid unnecessary costs or delay.

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a. Reference by consent or ordered on motion


Order of reference [Rule 32, Sec. 2 to 12] ORDER OF REFERENCE: When a reference is made, the clerk shall furnish the commissioner with a copy of the order of reference. MEETING: The commissioner shall set a time/place for the first meeting and shall notify parties/counsels. REPORT: Upon completion of the trial/hearing, the commissioner shall file a written report with the court. NOTICE: The clerk shall notify parties of the filing of the report. The parties 10 days to object to the reports findings. HEARING: After the 10 days, the report shall be set for hearing. The court may issue an order adopting/modifying/rejecting the report or part of it. When parties stipulate that the Commissioner's findings of fact are final, only questions of law shall thereafter be considered.

Where a case has been partially tried before one judge, the consolidation of the same with another related case pending before another judge who had no opportunity to observe the demeanor of the witness during trial makes the consolidation not mandatory. [PCGG v. Sandiganbayan (1992)] Severance of trial [Rule 31, Sec. 2] The court may issue separate trials for convenience or to avoid prejudice: Of any claim, cross-claim, counterclaim or 3rdparty complaint; Of any separate issue; Of any number of claims, cross-claims, counterclaims, 3rd-party complaints or issues. Statement of judge [Rule 30, Sec. 7] During the hearing/trial of the case, any statement made by the judge shall be made of record in the TSN if made with reference to the case/parties/witnesses/ counsels. Suspension of actions [Rule 30, Sec. 8] Governed by the CC provisions

6. Delegation of reception evidence [Rule 30, Sec. 9]

of

General rule: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. Exception: The court may delegate the reception of evidence to its clerk of court who is a member of the bar in: Default hearings; Ex parte hearings; Cases where parties agree in writing. However, the clerk of court has no power to rule on objections to any question/admission of exhibits. Objections shall be resolved by the court upon submission of the clerks report and TSN within 10 days from termination of the hearing.

b. Powers of the commissioner [Rule 32, Sec. 3]


When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may: Specify/limit the commissioners power Direct him to report only upon particular issues, to do/perform particular acts, or direct him to receive and report evidence only May fix the date for beginning and closing the hearings and for the filing of his report. Powers of the Commissioner: Regulate the proceedings in every hearing before him [subject to other specifications & limitations in the order] Power to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order [subject to other specifications & limitations in the order] He may issue subpoenas and subpoenas duces tecum, swear witnesses. He may rule upon the admissibility of evidence, unless otherwise provided in the order of reference. The trial or hearing before him shall proceed in all respects as it would if held before the court.

7. Trial by commissioners
COMMISSIONER Includes a referee, an auditor or an examiner. [Rule 32, Sec. 1] Kinds of trial by commissioner [Rule 32, Secs. 1 & 2] Reference by consent of both parties. Reference ordered on motion when: - Trial of an issue of fact requires the examination of a long account on either side - Taking of an account is necessary for the courts information before judgment, or for carrying judgment/order into effect. - A question of fact, other than upon the pleadings, arises in any stage of a case or for carrying a judgment/order into effect.

c. Commissioners report; notice to parties and hearing on the report


Report of commissioner [Rule 32, Sec. 9]

REMEDIAL LAW REVIEWER


Upon the 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 of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. Notice to parties of the filing of report [Rule 32, Sec. 10] Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed 10 days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon 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. Hearing on the report [Rule 32, Sec. 11] Upon the expiration of the 10-day period in Rule 32, Sec. 10, the report shall be set for HEARING. After which the court shall issue an ORDER: Adopting (in whole or in part), Modifying (in whole or in part) Rejecting the report (in whole or in part), Recommitting the report with instructions, or Requiring the parties to present further evidence before the commissioner or the court. Grant of demurrer The case dismissed shall be Denial of demurrer The defendant shall have the right to present evidence The court should set the date for the reception of the defendants evidence-in-chief [Northwest Airlines v. CA] xxx

133

Plaintiff's remedy would be to appeal. However, if the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Rule 33, Sec 1; Republic v. Tuvera] The appellate court should render judgment on the basis of the evidence submitted by the plaintiff. [Radiowealth Finance v. Del Rosario] Equivalent to judgment (i.e. based on the merits of the evidence presented so far)

An interlocutory order and not appealable. However, it may be the subject of a petition for certiorari for GAD under Rule 65 [Katigbak v. Sandiganbayan] Demurrer After the plaintiff rests his case Only ground: The plaintiff has shown no right to relief (i.e. evidence is insufficient)

XIV. DEMURRER TO EVIDENCE


1. 2. 3. 4. 5. Ground Effect of denial Effect of grant Waiver of right to present evidence Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case

When to File Ground

MTD Before the service and filing of the answer Those enumerated in Rule 16

Effect

1. Ground
Definition: A species of MTD that may be invoked based on insufficiency of evidence (i.e. upon the facts and the law the plaintiff has shown no right to relief). [Rule 33, Sec. 1] It is invoked after the plaintiff has presented all the evidence available to him.

If a MTD is granted, the complaint is likewise dismissed. But, depending on the ground, the complaint may be re-filed If the MTD is denied, the defendant shall file his responsive pleading

2. Effect of denial 3. Effect of grant


Grant of demurrer Denial of demurrer

4. Waiver of right to present evidence


If the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Rule 33, Sec .1; Republic v. Tuvera]

REMEDIAL LAW REVIEWER


Judgment must be in writing, personally and directly prepared by the judge; Note: A verbal judgment is, under the law, ineffective. [Corpus v. Sandiganbayan] Judgment must state clearly the facts and the law upon which the decision is based, signed by the judge and filed with the clerk of court. [Rule 35, Sec. 1] A decision need not be a complete recital of the evidence presented. So long as the factual and legal bases are distinctly and clearly set forth, the judgment is valid. [Chan v. CA] Kinds of judgment JUDGMENT UPON COMPROMISE - It is one conferred on the basis of a compromise agreement entered into between the parties. It is immediately executory in the absence of a motion to set aside on the ground of FAME. JUDGMENT UPON CONFESSION - It is one rendered by the court when a party expressly agrees to the other partys claim or acknowledges the validity of the claim against him. Judgment upon compromise The provisions and terms are settled by the parties to the action. The judgment is entered in the record by consent of the court. Judgment by confession An affirmative and voluntary act of the defendant himself. The court exercises a certain amount of supervision over the entry of judgment.

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5. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case


DIFFERENCES BETWEEN DEMURRER IN CIVIL AND CRIMINAL CASES (Asked in the 2003 and 2007 Bar Exams) Demurrer in civil cases Demurrer in criminal cases Defendant need not ask May be filed with or for leave of court without leave of court. Note: Leave of court is necessary so that the accused can present his evidence in case the demurrer is denied [Rule 119, Sec.23] The order of dismissal is not appealable because it will constitute double jeopardy The accused may adduce his evidence only if the demurrer is field with leave of court

If the demurrer is granted, the order of dismissal is appealable If a demurrer is denied, the defendant may proceed to present his evidence

XV. JUDGMENTS AND FINAL ORDERS


1. 2. 3. 4. 5. Judgment without trial Contents of a judgment Judgment on the pleadings Summary judgments Judgment on the pleadings versus summary judgments 6. Rendition of judgments and final orders 7. Entry of judgment and final order
JUDGMENT The final ruling by a court of competent jurisdiction regarding the rights and obligations of the parties or other matters submitted to it in an action/proceeding [Macahiling vs. Heirs of Magalit] REQUISITES OF A VALID JUDGMENT [RULE 36, SEC. 1; ART. 8, SEC. 14, 1987 CONSTITUTION] AJOEWS Court/tribunal must be with authority to hear and determine the matter before it; Court must have jurisdiction over the parties and the subject matter; Parties must have been given an opportunity to adduce evidence in their behalf; Evidence must have been considered by the tribunal in deciding the case; [Acosta v. COMELEC]

Kinds of judgment by confession: - JUDGMENT BY COGNOVIT ACTIONEM After service, the defendant, instead of entering a plea, acknowledged and confessed that the plaintiffs cause of action was just and rightful. - JUDGMENT BY CONFESSION RELICTA VERIFICATIONE After pleading and before trial, the defendant both: (a) confessed the plaintiffs cause of action and (b) withdrew his plea or other allegations, whereupon judgment was entered against him without proceeding to trial. Remedy against judgment by consent, confession or compromise is to first file a motion to set it aside; if denied, file the appropriate petition under Rule 65. 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. A judgment is on the merits when it amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts CLARIFICATORY JUDGMENT - It is rendered to clarify an ambiguous judgment or one difficult to comply with.

REMEDIAL LAW REVIEWER


JUDGMENT NON PRO TUNC - Literally, now for then. It is a judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. [Lichauco v Tan Pho] JUDGMENT SIN PERJUICIO - It may refer to a dismissal of a case without prejudice to it being re-filed. CONDITIONAL JUDGMENT - It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. Such a judgment is generally void because eof the absence of a disposition [cu-unjieng v mabalacat sugar co.] SEVERAL JUDGMENT - 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. [Rule 36, sec. 4] It is proper when the liability of each party is clearly separate and distinct from his co-parties such that the claims against each of them could have been the subject of separate suits, and the judgment for or against one of them will not necessarily affect the other. SEPARATE JUDGMENT - 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 that is the subject matter of said claim. [Rule 36, sec. 5] It is proper when more than one claim for relief is presented in an action for the determination as to the issues material to the claim has been made. The judgment shall terminate the action with respect to the claims disposed of, and shall proceed as to the remaining claims. The court may stay its enforcement until rendition of subsequent judgments, and may prescribe conditions to secure the judgments benefits. Judgment may be given for/against one or more of several plaintiffs/defendants. The court may require the parties on each side to file adversary pleadings as between themselves. [Rule 36, Sec. 3] If judgment is rendered against 2 or more persons sued as an entity without juridical personality, the judgment shall set out their individual names (if known). [Rule 36, Sec. 6] PROMULGATION - The process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel. MEMORANDUM DECISION - A decision of the appellate court which adopts the findings and conclusions of the TC. - A judgment is considered rendered upon the filing of the signed decision. - This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule.

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1. Judgment without trial


When trial is not necessary PSADSA (Asked in the 1996 Bar Exams) [Riano] The pleadings of the parties tender no issue at all judgment on the pleadings may be directed by the court [Rule 34] There is actually no genuine issue from the pleadings, affidavits, depositions and other papers court may render a summary judgment [Rule 35] Parties entered into a compromise or an amicable settlement either during the pre-trial or during the trial [Rule 18; Art. 2028 Civil Code] Complaint has been dismissed with prejudice [Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last par.)] Case falls under the Rules on Summary Procedure Agreed statement of facts [Rule 30, Sec. 6]

2. Contents of a judgment
Parts of a judgment Body, Ratio decidendi, or Opinion of the court It contains the findings of facts and conclusions of law; Fallo, or Disposition of the case It is the dispositive part of the judgment that actually settles and eclares the rights and obligation sof the parties, finally, definitevely, and authoritatively [Light Rail Transit Authority v CA]; The part of the judgment that is subject to execution [Riano] Signature of the judge. Distinction Between Judgment and Opinion of the Court (ASKED IN THE 2006 BAR EXAM) A judgment (or FALLO) must be distinguished from an opinion. The latter is the informal expression of the views of the court and cannot prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So there is a distinction between the findings and conclusions of a court and its judgment. While they may constitute its decision and amount to a rendition of a judgment they are not the judgment itself. They amount to nothing more than an order for judgment, which, of course, must be distinguished from the judgment. [Freeman on Judgments, Vol. I, 5th Edition, page 6, quoted in Casilan vs. Salcedo (1969)] Conflict between the dispositive portion and body of the decision

REMEDIAL LAW REVIEWER


Rule: Where there is a conflict between the fallo and the body of the decision, the fallo controls. Definition, nature A judgment granted by the court for the prompt disposition of civil actions, if it clearly appears (after the issues had been joined and on the basis of the pleadings and papers filed) that there exists no genuine issue/controversy as to any material fact, except as to the amount of damages. [Ley Construction v. Union Bank; Agbada v Inter-Urban Developers; Raboca v Velez] Also called accelerated judgment.

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Qualification: This rule applies only when the dispositive part is definite, clear, and unequivocal [Union Bank v Pacific Equipmetnt Corporation] Basis: The fallo is the final order. The opinion in the body is merely a statement ordering nothing [Poland Industrial Limited v. National Development Company]

3. Judgment on the pleadings [Rule 34] (Asked in the 1999 and 2005 Bar Exams)
Grounds: If the answer either Fails to tender an issue; Note: An answer fails to tender an issue due to either: - General denial of the material allegations of the complaint; - Insufficient denial of the material allegations of the compliant. Admits the material allegations of the adverse partys pleading. Cannot be rendered motu proprio A judgment on the pleadings can be done only upon MOTION to that effect filed by the appropriate party. It cannot be rendered by the court motu proprio. Exception: If at pre-trial the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio. [Rule 18, Sec. 2(g)] When judgment on the pleadings will not apply Declaration of nullity of marriage; Annulment of marriage; Legal separation. Effect: judgment on the pleadings will not lie and material facts alleged in the complaint must always be proved Effects By moving for judgment on the pleadings, the plaintiff waives his claim for unliquidated damages (because claims for such damages must be alleged and proved). One who prays for the judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence must be understood to admit all material and relevant allegations of the opposing party and to rest his motion for judgment upon those allegations taken together with such of his own as are admitted in the pleadings. [Falcasantos v. How Suy Ching (1952)]

Genuine issue An issue of fact which calls for the presentation of evidence; as distinguished from an issue which is sham, fictitious, contrived and patently insubstantial so as not to constitute a genuine issue for trial. When the facts as pleaded appear uncontested or undisputed, then there is no real/genuine issue as to the facts. The TC cannot motu propio issue a summary judgment. A party must move for summary judgment. [Riano] Procedure [Rule 35, Sec. 3] Movant files a motion for summary judgment with supporting affidavits, depositions or admission Service to the adverse party at least 10 days the hearing Adverse party may serve opposing affidavits, depositions or admissions at least 3 days before the hearing Hearing Court shall determine if a genuine issue as to any material fact exists and if the movant is entitled to a summary judgment as a matter of law Judgment

a. for the claimant [Rule 35, Sec. 1] b. for the defendant [Rule 35, Sec. 2]
Who may file the motion Claimant Defendant When May file the motion only after the answer has been served May file the motion any time

Filing of a motion for summary judgment does not interrupt the running of the period for filing an answer. Hence, the movant must also file a Motion for Extension of Time to File Answer. Bases of summary judgment: When, upon the following, no genuine issue as to any material fact exists: Affidavits made on personal knowledge; Depositions of the adverse or a 3rd party; (Rule 23) Admissions of the adverse party; (Rule 26)

4. Summary judgments [Rule 35] (Asked in the 1986, 1989, 1996 and 1999 Bar Exams)

REMEDIAL LAW REVIEWER


Answers to interrogatories. (Rule 25) Based on the pleadings, depositions, admissions and affidavits There is no genuine issue between the parties Based solely upon the pleadings The answer fails to tender an issue or there is an admission of the material allegations Generally available only to the plaintiff, unless the defendant presents a counterclaim 3-day notice required On the merits Based on the complaint and evidence, if court requires its presentation No issues as no answer is filed by the defending party

c. When the case not fully adjudicated


Partial summary judgment (Asked in the 2004 Bar Exam) Applies when for some reason there can be no full summary judgment. Trial should deal only with the facts not yet specified or established. Duty of court [Rule 35, Sec. 4] Ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted based on: - An examination of the pleadings and evidence before it - Interrogation of the counsel Make an order specifying the facts and the extent of the amount of damages that appear without substantial controversy Direct further proceedings as are just Conduct trial on the controverted facts accordingly Effect A partial summary judgment is not a final judgment, but merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case. [Guevarra v. CA (1983)]

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Available to both plaintiff and defendant

Available to the plaintiff alone

d. Affidavits and attachments


Form of affidavits and supporting papers [Rule 35, Sec. 5] Made on personal knowledge Shall set forth such facts as would be admissible in evidence Shall show affirmatively that the affiant is competent to testify to the matters stated therein. Attachments [Rule 35, Sec. 5] Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto OR served therewith. Affidavits in bad faith [Rule 35, Sec. 5] Definition Affidavits presented under this Rule which appear to the court at any time as presented in bad faith or solely for the purpose of delay Effects: Court shall order the offending party or counsel to pay the other party amount of reasonable expenses which the filing of the affidavits caused him to incur, including attorneys fees Court may adjudge the offending party or counsel guilty of contempt, after hearing

10-day notice required May be interlocutory or on the merits Usually available in actions to recover a debt, or for a liquidated sum of money, or for declaratory relief

3-day notice rule applies On the merits

Available in any action, except annulment of marriage or legal separation cases

Available in any action, except annulment of marriage or legal separation cases

6. Rendition of judgments and final orders


Form of judgment [Rule 36, Sec. 1] In writing Personally and directly prepared by the judge Stating clearly & distinctly the facts and the law on which it is based Signed by the judged Filed with the clerk of court. Definition of rendition of judgment It is the filing of the judgment 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 v. CA] Period within which decision is to be rendered [1987 Constitution, Art. VIII, Sec. 15] All cases filed must be decided or resolved by the Supreme Court within 24 months from the date of their submission for decision. Unless reduced by the SC, within 12 months for lower collegiate courts and within 3 months for all other lower courts.

5. Judgment on the pleadings versus summary judgments


Summary judgment Judgment on the pleadings Judgment by default

REMEDIAL LAW REVIEWER


A case is deemed submitted for resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court. An extension of the period may be set by the SC upon request by the judge concerned on account of heavy caseload or by other reasonable excuse [Arap v Mustafa] Interpretation of the judgment Where the judgment is difficult to execute because of ambiguity in its terms, the remedy of the party is to file a motion for clarificatory judgment and not to assail the judgment as void. [Poland Industrial Limited v National Development Company] To make corrections of clerical errors, not substantial amendments, as by an amendment non pro tunc; To clarify an ambiguity which is borne out by and justifiable in the context of the decision; In judgments for support, which can always be amended from time to time. Amended/clarified judgment An entirely new decision and supersedes the original judgment Court makes a thorough study of the original judgment and renders the amended and clarified judgment only after considering all the factual and legal issues Supplemental decision Does not take the place of or extinguish the original judgment Serves to add to the original judgment

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7. Entry of judgment and final order


Definition of entry of judgment The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has become final and executory. [Riano] Rendition of judgment Filing of the judgment with the clerk of court Entry of judgment Act of clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment

XVI. POST-JUDGMENT REMEDIES


1. Motion for New Trial or reconsideration 2. Appeals in General 3. Relief from judgments, orders and other proceedings 4. Annulment of Judgments or final orders and resolutions 5. Collateral attack of judgments
Remedies BEFORE finality of judgment Motion for Reconsideration Motion for New Trial Appeal

Entry of Judgments and Final Orders [Rule 36, Sec. 2] If there is no appeal/MNT/MFR filed within the prescribed periods, the clerk of court shall enter the judgment or final order in the book of entries of judgments. Date of finality of the judgment = Date of its entry in the book Note: the periods for filing the following pleadings are reckoned from the date of entry of judgment Execution of a judgment by motion (5 years from entry) [Rule 39, Sec. 6] Petition for relief (as one of its periods, not more than 6 months from entry of the judgment or final order) [Rule 38, Sec. 3] The record: Shall contain the judgments dispositive part Shall be signed by the clerk of court with a certificate that the judgment has become final and executory. Amendments to judgment (Asked in the 2008 Bar Exams) The power to amend judgments is inherent to the court before judgment becomes final and executory. General rule: The court cannot amend the judgment once it has become final and executory. Exception:

1. Motion for Reconsideration

New

Trial

or

Motion for reconsideration A motion for reconsideration under Rule 37 is directed against a judgment or final order. It is not the motion for reconsideration of interlocutory order, which often precedes a petition for certiorari under Rule 65. It does not apply to cases that fall under Summary Procedure. Contents of motion for new trial or reconsideration Rule 37, Sec.2. Contents of motion for new trial or reconsideration.The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. A motion for new trial shall be proved in the manner provided for proof of motions. A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence.

REMEDIAL LAW REVIEWER


A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. The aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of the said party: FAME (Extrinsic Fraud, Accident, Mistake or Excusable Negligence) which ordinary prudence could not have guarded against and by reason of which the aggrieved party has probably been impaired in his rights. - The motion shall be supported by affidavits of merit. Non-compliance with this requirement would reduce the motion to a mere pro forma motion. - The affidavits of merit must show the facts (not mere conclusions or opinions) constituting the valid cause of action or defense which the movant may prove in case a new trial is granted. Otherwise, if the complaint is after all groundless or the defense is ineffective, a new trial would serve no purpose. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. - The motion shall be supported by: affidavits of the witnesses by whom such evidence is expected to be given; and/or duly authenticated documents which are proposed to be introduced in evidence. - Non-compliance with this requirement would reduce the motion to a mere pro forma motion. Tumang vs. CA: Newly discovered evidence may and does commonly refer to evidence already in existence prior to or during trial but which could not have been secured and presented during the trial despite reasonable diligence on the part of the litigant. Extrinsic fraud: any fraudulent scheme executed by the prevailing party outside of the trial against the losing party who, because of such fraud, was prevented from presenting his side of the case. Intrinsic fraud: acts of a party during the trial which does not affect the presentation of the case. Accident: an event that occurs without ones foresight or expectation. Mistake: generally, mistakes of facts or law where, in good faith, the defendant was misled in a case.

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a. Grounds
Rule 37, Sec.1. Grounds of and period for filing motion for new trial or reconsideration.Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or (b) Newly discovered evidence, which could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary law. Grounds for a motion for reconsideration The evidence is insufficient to justify the decision; The damages awarded are excessive; The decision or final order is contrary to law. Form and content of a motion for reconsideration Motion for reconsideration must be in writing, a written notice of which must be served on the adverse party. It is not sufficient to mention the ground relied upon. It is necessary for the motion for reconsideration to point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. Non-compliance with this requirement would reduce the motion to a mere pro forma motion, which shall not toll the period for appeal. Grounds for motion for new trial

b. When to file
The motion must be filed within the period for appeal. The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. The 15-day period is deemed to commence upon receipt by the counsel of record,

REMEDIAL LAW REVIEWER


which is considered notice to the parties. Service upon the parties themselves is prohibited and is not considered as official receipt of judgment. No motion for extension of time shall be allowed. Where a record on appeal is required, the appellant shall file: a notice of appeal, and record on appeal within 30 days from notice of the judgment or final order. A record on appeal is required only in: Special proceedings; Other cases of multiple or separate appeals. Resolution of the motion Rule 37, Sec.4. Resolution of motion.A motion for new trial or reconsideration shall be resolved within 30 days from the time it is submitted for resolution. Effect of filing The filing of a timely motion interrupts the period to appeal. The 30-day period to resolve the motion is held to be mandatory [Gonzales vs Bantolo (2006)] Rule 37, Sec.3. Action upon motion for new trial or reconsideration.The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly. The prohibition on a second motion does not apply to a motion for reconsideration of an interlocutory order. Denial of motion for new trial The judgment or final order shall stand as is. Rule 37, Sec.8. Effect of order for partial new trial.When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. When there is an order for partial new trial, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. When a second motion for new trial is permissible: When a ground for new trial was not existing or available when the first motion was made.

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d. Grant of the motion; effect


Grant of motion for reconsideration The court may amend the judgment or final order accordingly. The amended judgment is in the nature of a new judgment, which supersedes the original judgment. Grant of motion for new trial The original judgment shall be vacated, and the action shall stand for trial de novo. The recorded evidence upon the former trial shall be used at the new trial without retaking them (if they are material and competent).

c. Denial of the motion; effect


Denial of motion for reconsideration The judgment or final order shall stand as is. Rule 37, Sec.7. Partial new trial or reconsideration.If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. Single motion rule Rule 37, Sec.5. Second motion for new trial.A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial based on a ground not existing or available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. No party shall be allowed a second motion for reconsideration of a judgment or final order.

e. Remedy when motion is denied, Fresh 15day period rule


Rule 37, Sec.9. Remedy against order denying a motion for new trial or reconsideration.An order denying a motion for new trial or reconsideration is now appealable. (As modified by AM 07-7-12) Remedy if motion is denied To appeal from the judgment or final order itself. The order denying the motion for new trial or reconsideration may itself be assailed by a petition for certiorari under Rule 65. Habaluyas vs. Japson (1986): A motion for new trial or reconsideration is not a prerequisite to an appeal, a petition for review or a petition for review on certiorari. And since the purpose is to expedite the final disposition of cases, a strict but prospective application of said ruling is in order. Fresh period rule Neypes vs. CA (2005): If the motion is denied, the movant has a fresh period of 15 days from receipt or notice of the order denying the motion for new trial or motion for reconsideration within which to file an appeal.

REMEDIAL LAW REVIEWER


This fresh period rule shall also apply to: Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. distinctly state the law and the facts on which it is based such a requirement

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b. Matters not appealable


Not appealable under Rule 41 Order denying motion for new trial or reconsideration; Order denying petition for review or any similar motion seeking relief from judgment; Interlocutory order; Order disallowing/dismissing appeal; Order denying motion to set aside judgment by consent or confession or compromise on ground of fraud or mistake or duress or any other vitiation of consent; Order of execution; While the case is pending, judgment or final order: - For/against one or more of several parties; - In separate claims, counterclaims, crossclaims, third-party complaints. Exception: If court allows appeal. Order dismissing an action without prejudice. In the 8 cases not appealable under Rule 41, the aggrieved party may file a special civil action under Rule 65.

2. Appeals in General
a. Judgments and final orders subject to appeal
Rule 41 [as amended by A.M. 07-7-12 (2007)] SECTION 1. Subject of appeal. 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 these Rules to be appealable. No appeal may be taken from: (a) An order denying a petition for relief or any similar motion seeking relief from judgment; (b) An interlocutory order; (c) An order disallowing or dismissing an appeal; (d) An 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; (e) An order of execution; (f) A 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 (g) An order dismissing an action without prejudice. In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65. SIGNIFICANCE OF THE AMENDMENT An order denying motion for new reconsideration is NOW APPEALABLE! FINAL ORDER Disposes of the matter in its entirety, leaving nothing more to be done but to enforce execution Appealable Must clearly and

c. Remedy against judgments and orders which are not appealable d. Modes of appeal
i. Ordinary appeal

Procedure in the Court of Appeals


Ordinary appealed cases Rule 44, Sec. 1. Title of cases.In all cases appealed to the Court of Appeals under Rule 41, the title of the case shall remain as it was in the court of origin, but the party appealing shall be further referred to as the appellant and the adverse party as the appellee. Counsels and guardians Rule 44, Sec. 2. Counsel and guardians.The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are appointed, notice thereof shall be served immediately on the adverse party and filed with the court. Order of transmittal of record Rule 44, Sec. 3. Order of transmittal of record.If the original record or the record on appeal is not transmitted to the Court of Appeals within 30 days after the perfection of appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal.

trial

or

INTERLOCUTORY ORDER Does not dispose of a case completely but leaves something more to be decided upon. Not appealable except through a petition for certiorari under Rule 65 No need to comply with

REMEDIAL LAW REVIEWER


Case docketing Rule 44, Sec. 4. Docketing of case.Upon receiving the original record or the record on appeal and the accompanying documents and exhibits transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and notify the parties thereof. Within 10 days from receipt of said notice, the appellant, in appeals by record on appeal, shall file with the clerk of court 7 clearly legible copies of the approved record on appeal, together with the proof of service of 2 copies thereof upon the appellee. Any unauthorized alteration, omission or addition in the approved record in appeal shall be a ground for dismissal of the appeal. Record completion Rule 44, Sec. 5. Completion of record.Where the record of the docketed case is incomplete, the clerk of court of the Court of Appeals shall so inform the court and recommend to it measures necessary to complete the record. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. Rule 44, Sec. 6. Dispensing with complete record. Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult cases, the court, on its own motion or on motion of an of the parties, may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining the reasons for such declaration. The failure of appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order is a ground for dismissal of the appeal. Appellants brief Rule 44, Sec.7. Appellants brief.It shall be the duty of the appellant to file with the court, within 45 days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, 7 copies of his legibly written, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellee. Important numbers to remember File brief within 45 days from receipt of notice, File seven copies of the brief, Serve two copies to appellee and file proof of service. Contents of appellants brief Rule 44, Sec. 13. Contents of appellants brief. The appellants brief shall contain, in the order herein indicated, the following: (a) 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; (b) An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively; (c) 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; (d) Under the heading Statement of Facts, a clear and concise statement in a narrative form of facts admitted by both parties and of those in controversy, together with the substance of proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; (e) A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment; (f) Under the heading Argument, the appellants arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. (g) Under the heading Relief, a specification of the order of judgment which the appellant seeks; and (h) In cases not brought up by record on appeal, the appellants brief shall contain, as an appendix, a copy of the judgment or final order appealed from. Rule 44, Sec. 15. Questions that may be raised on appeal.Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. Rule 124, Sec. 7. Contents of brief.The briefs in criminal cases shall have the same contents as provided in sections 13 and 14 of Rule 44. A certified true copy of the decision or final order appealed from shall be appended to the brief of the appellant. Appellees brief Rule 44, Sec. 8. Appellees brief.Within 45 days from receipt of the appellants brief, the appellee shall file with the court 7 copies of his legibly typewritten, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellant. Contents of appellees brief Rule 44, Sec. 14. Contents of appellees brief.The appellees brief shall, in the order herein indicated, the following:

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(a) 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; (b) Under the heading Statement of Facts, the appellee shall state that the accepts the statement of facts in the appellants brief, or under the heading Counter-Statement of Facts, he shall point out such insufficiencies or inaccuracies as he believes exist in the appellants statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellants statement of facts; and (c) 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. Reply brief Rule 44, Sec. 9. Appellants reply brief.Within 20 days from receipt of the appellants brief, the appellee shall file with the court 7 copies of his legibly typewritten, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellant. Memoranda in special cases Rule 44, Sec. 10. Time for memoranda in special cases.In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible period of 30 days from receipt of the notice issued by the clerk that all the evidence, oral or documentary, is already attached to the record. The failure of the appellant to file his memorandum within the period therefore may be a ground for dismissal of the appeal. Several or plurality of appellants, appellees and/or counsel Rule 44, Sec. 11. Several appellants or appellees or several counsel for each party.Where there are several appellants or appellees, each counsel representing one or more but not all of them shall be served with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them. Extension of time for filing briefs Rule 44, Sec. 12. Extension of time for filing briefs.Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. The brief De Liano vs. CA (2001): The purpose of the brief is to present to the court in concise form the points and questions 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. The brief should be so prepared as to minimize the labor of the court in the examination of the record upon which the appeal is heard and determined. Failure to comply with required contents of appellants brief is cause for dismissal of the petition. Dismissal of appeal Rule 50, Sec. 1. Grounds for dismissal of appeal. An appeal may be dismissed Court of Appeals, on its own motion or on that of appellee, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal of the record on appeal within the period prescribed by these Rules; (c) Failure of the appellant to pay the docket and other lawful fees as provide in section 5 of Rule 40 and Section 4 of Rule 41; (d) Unauthorized alterations, omission or additions in the approved record on appeal as provided in section 4 of Rule 44; (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (f) Absence of specific assignment of errors in the appellants brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; (g) 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; (h) 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 (i) The fact that the order or judgment appealed from is not appealable. PNB vs. Philippine Milling (1969): CA has discretion to dismiss or not to dismiss appeal. Although said discretion must be a sound one, to be exercised in accordance with the tenets of justice and fair play, having in mind the circumstances obtaining in each case, the presumption is that it has been so exercised. Padasdas vs. CA (1974): Failure to file appellants brief within the reglementary period need not necessarily cause dismissal of appeal where the same was due to force majeure. Dismissal of improper appeal Rule 50, Sec. 2. Dismissal of improper appeal to the Court of Appeals.An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals

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raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. Atlas Consolidated vs. CA (1991): Circular No.2-90 now prohibits the transfer of appeals erroneously taken to the SC or CA to whichever of these tribunals has appropriate appellate jurisdiction. But where SC believes that there are factual issues which must be resolved, it may, in the exercise of its sound discretion and considering the attendant circumstances, either itself take cognizance of and decide such issues or refer them to CA for determination. Cu-unjieng vs. CA (2006): Nonpayment of the appellate court docket and other lawful fees within the reglementary period as provided under Rule 41, Sec. 4 is a ground for the dismissal of an appeal under Rule 50, Sec. 1(c). The Supreme Court has invariably sustained the Court of Appeals dismissal on technical grounds under the afore-quoted provision unless considerations of equity and substantial justice present cogent reasons to hold otherwise. True, the rules may be relaxed but only for persuasive and weighty reasons, to relieve a litigant of an injustice commensurate with his failure to comply with the prescribed procedure. Withdrawal of appeal Rule 50, Sec. 3. Withdrawal of appeal.An appeal may be withdrawn as of right at any time before the filing of the appellees brief. Thereafter, the withdrawal may be allowed in the discretion of the court. Stay of execution General rule: If judgment is rendered against the defendant, execution shall issue immediately upon motion. Exception: Immediate execution of judgment may be stayed if the following requisites concur: an appeal has been perfected the defendant files a sufficient supersedeas bond, approved by the MTC and executed in favor of the plaintiff to pay the rents, damages and costs accruing down to the time of the judgment appealed from during the pendency of the appeal, the defendant deposits with the appellate court the amount of rent due from time to time under the contract; in the absence of a contract, he shall deposit with the RTC the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the 10th day of each succeeding month or period The supersedeas bond shall be transmitted by the MTC, with the other papers, to the clerk of the RTC to which the action is appealed. All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary band, and shall be held there until the final disposition of the appeal, UNLESS the court: by agreement of the interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree otherwise. Should the defendant fail to make the payments, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits. After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court. In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal. Habere Facias Possessionem; definition The name of the process commonly resorted to by the successful party in an action for ejectment, for the purpose of being placed by the sheriff in the actual possession of the land recovered. San Pedro vs CA: Judgments in ejectment cases which are favorable to the plaintiff are immediately executory. They can be stayed by the defendant only by: perfecting an appeal; filing a supersedeas bond; and making a periodic deposit of the rental or the reasonable compensation for the use and occupation of the property during the pendency of the appeal. These requisites must concur. Puncia vs Gerona: A stay of execution may also be warranted once the writ is issued: where the delay in the deposit is due to fraud, accident, mistake, or excusable negligence; or, where supervening events occurring subsequent to the judgment bring about a material change in the situation of the parties which makes execution inequitable where there is no compelling urgency for the execution because it is not justified by the prevailing circumstances

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Rule 39, Sec. 2. Discretionary execution. (a) Execution of a judgment or a final order pending appeal.On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. (b) Execution of several, separate or partial judgments.A several, separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. Sec. 21, Revised Rules on Summary Procedure. Appeal. The judgment or final order shall be appealable to the appropriate RTC which shall decide the same in accordance with Sec. 22 of BP 129. The decision of the regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 shall be deemed repealed. Rule 43, Sec. 12. Effect of appeal.The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just. Rule 39, Sec. 4. Judgments not stayed by appeal. Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are not or may hereafter be declared to be immediately executory shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. General rule: In ordinary appeals, execution is stayed. Exceptions Decision in forcible entry and unlawful detainer. Exception to exception: If appellant stays immediate execution by filing a notice of appeal, supersedeas bond and depositing in court a monthly rental or compensation for the occupation as fixed by the court which rendered the decision. Decision of the MeTC, MTC or MCTC or the RTC where execution pending appeal has been granted by the court of origin or in a proper case by the appellate court upon good reasons to be stated in the order. Decision of the RTC rendered in the exercise of its appellate jurisdiction on cases tried and decided by the court of origin under Summary Procedure. Decision of a quasi-judicial agency under the Rule 43, Sec. 12, UNLESS otherwise provided by the Court CA; Decision in cases of injunction, receivership, support and accounting.

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Service Specialists vs Sheriff of Manila: An appeal from the order denying the petition for relief does not stay the judgment from which relief is sought. In order to stay execution, it is necessary to obtain a writ of preliminary injunction. When case is submitted for judgment Rule 51, Sec. 1. When case deemed submitted for judgment.A case shall be deemed submitted for judgment: A. In ordinary appeals. Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or memorandum required by the Rules or by the court itself, or the expiration of the period for its filing. When such hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. B. In original actions and petitions for review. Where no comment is filed, upon the expiration of the period to comment. Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the court, or the expiration of the period for its filing. Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. The period within which a court must render a decision is mandatory [New Frontier Mines vs NLRC] Judgment Rule 51, Sec. 2. By whom rendered.The judgment shall be rendered by the members of the court who participated in the deliberation on the merits of the case before its assignment to a member for the writing of the decision. Rule 51, Sec. 3. Quorum and voting in the court. The participation of all three Justices of a division

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shall be necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final resolution. If the three Justices do not reach a unanimous vote, the clerk shall enter the votes of the dissenting Justices in the record. Thereafter, the Chairman of the division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who shall designate two Justices chosen by raffle from among the other members of the court to sit temporarily with them, forming a special division of five Justices. The participation of all the five members of the special division shall be necessary for the deliberation required in section 2 of this Rules and the concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution. Rule 51, Sec. 4. Disposition of a case.The CA, in the exercise of its appellate jurisdiction, may affirm, reverse, or modify the judgment or final order appealed from, and may direct a new trial or further proceedings to be had. Sec.40, BP 129. Form of decision in appealed cases.Every decision or final resolution of a court in appealed cases shall clearly and distinctly state the findings of fact and the conclusion of law on which it is based, which may be contained in the decision or final resolution itself, or adopted by reference from those set forth in the decision, order, or resolution appealed from. Rule 51, Sec. 5. Form of decision.Every decision or final resolution of the court in appealed cases shall clearly and distinctly state the finding of fact and the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted from those set forth in the decision, order, or resolution appealed from. The body of the judgment must contain the reasons or conclusions of the court to serve as a guide or enlightenment to determine the ratio decidendi. But what actually constitutes the resolution of the court which is the subject of the execution is the dispositive portion of the fallo. [Olac vs. CA] Rule 51, Sec. 6. Harmless error.No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceedings must disregard any error or defect which does not affect the substantial rights of the parties. Rule 51, Sec. 7. Judgment where there are several parties.In all actions or proceedings, an appealed judgment may be affirmed as to some of the appellants, and revered as to others, and the case shall thereafter be proceeded with, so far as necessary, as of separate actions had been begun and prosecuted; and execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such cases, as the court shall deem proper. Rule 51, Sec. 8. Questions that may be decided.No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors, or closely related to or dependent on an assigned error Rule 51, Sec. 9. Promulgation and notice of judgment.After the judgment or final resolution and dissenting or separate opinions, if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies thereof to be served upon the parties or their counsel.

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ii. Petition for review iii. Petition for review on certiorari

Procedure in the Supreme Court (Appealed Cases)


Mode of appeal Rule 56, Sec. 3. Mode of appeal.An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Procedure Rule 56, Sec. 4. Procedure.The appeal shall be governed by and disposed of in accordance with the applicable provisions of the Constitution, laws, Rules 45, 48, sections 1, 2 and 5 to 11 of Rules 51, 52 and this Rule. Grounds for dismissal of appeal Rule 56, Sec. 5. Grounds for dismissal of appeal. The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: (a) Failure to take the appeal within the reglementary period; (b) Lack of merit in the petition; (c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs; (d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; (e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause; (f) Error in the choice or mode of appeal; and (g) The fact that the case is not appealable to the Supreme Court. Improper appeal

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Rule 56, Sec. 6. Disposition of improper appeal. Except as provided in section 3, Rule 122 regarding appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed. An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decision or appropriate action. The determination of the Supreme Court on whether or not issues of facts are involved shall be final. Rule 122, Sec. 3. How appeal taken. (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be by notice of appeal filed with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. (c) The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by notice of appeal to the Court of Appeals in accordance with paragraph (a) of this Rule. (d) No notice of appeal is necessary in cases where the Regional Trial Court imposed the death penalty. The Court of Appeals shall automatically review the judgment as provided in Section 10 of this Rule. (e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45. General rule: An appeal taken to the Supreme Court by notice of appeal shall be dismissed. Exception: Appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Equally divided Rule 56, Sec. 7. Procedure if opinion is equally divided.Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. Questions of Fact vs. Questions of Law Agote vs. Lorenzo (2005): A question of law does not involve an examination of the probative value of the evidence presented by any of the litigants. There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged. Alsua-Betts vs. CA (1979): General rule: CAs findings of fact are final and conclusive and cannot be reviewed on appeal to the SC, provided they are borne out by the record or are based on substantial evidence. Exception: CAs findings of fact may be reviewed by the SC on appeal by certiorari when: 1. Conclusion is a finding grounded entirely on speculations, surmises or conjectures (Joaquin vs. Navarro). 2. Inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok). 3. There is grave abuse of discretion in the appreciation of facts (Buyco vs. Pp). 4. Judgment is based on a misapprehension of facts (De la Cruz vs. Sosing). 5. The Court of Appeals findings of fact are conflicting (Casica vs. Villaseca). 6. The Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee [Nakpil & Sons vs. CA (1986)]. 7. The Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion [Abellana vs. Dosdos (1965)]. 8. The Court of Appeals findings of fact are contrary to those of the trial court, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the Court of Appeals are premised on absence of evidence but are contradicted by the evidence of record [Manlapaz vs. CA (1987)]. Perez-Rosario vs. CA (2005): Rule 65 cannot cure the failure to appeal thru Rule 45.

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e. Issues to be raised on appeal


Cognizable judgments/issues The appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. [Republic v. BermudezLorino (2005)] Rationale: Appeal is merely a privilege conferred by law upon the litigants. A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. [Medina v. CA (1992)]

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However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. [Espina v. CA (1992)] Notice of appeal The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. Record of appeal Required only in: Special proceedings; Multiple or separate appeals where the law or the Rules of Court so requires. Rule 40, Sec.2. When to appeal.The appeal is taken by filing a notice of appeal with the court that rendered 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. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. Neypes vs. CA (2005) on the fresh period rule: Definition: Period of appeal is interrupted by a timely motion for new trial or reconsideration. Motion for extension of time to file motion for new trial or reconsideration is not allowed. Applicability: Rule 40 on Rule 42 on Rule 43 on Rule 45 on appeals from MTC to RTC. petitions for review from RTC to CA. appeals from QJA to CA. appeals by certiorari to SC. From RTC (original) to CA to SC and from MTC to RTC (appellate) to CA to SC and from CA to SC and from QJA to CA to SC 15 days from notice of judgment or final order or from denial of petitioners motion for reconsideration or new trial. The SC may grant a 30 day extension for justifiable reasons.

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From QJA to CA 15 days from notice of the award, judgment, final order or resolution or from date of last publication if required by law. The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer than 15 days. Distinctions Between Rule 45 and Rule 65 Based on J. Regalados Commentary (Asked in the 1999 and 2008 Bar Exams ) Rule 45 Appeal by Certiorari Rule 65 Original Action for Certiorari 1. Issues Raised Questions of Law Grave Abuse of Discretion Amounting to Lack or Excess of Jurisdiction

2. Against What Court Action Directed Review of the judgment, award or final order on the merits Directed Against an Interlocutory Order of the court prior to appeal from the judgment, or where there is no appeal or any other plain speedy and adequate remedy Not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed.

3. Reglementary Period Must be filed within the reglementary period for appeal. 4. Effect on Proceedings Below the No effect (i.e., proceedings below continue) unless a writ of preliminary injunction or a temporary restraining order has been issued The parties are the aggrieved party against the lower court/Quasijudicial agency and the prevailing parties, who thereby respectively become the petitioner and the respondents.

Rationale: To standardize the appeal periods provided in the Rules of Court and to afford litigants fair opportunity to appeal their cases, the court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for new trial or reconsideration.

Judgment, award or order appealed from is stayed by the Appeal

f. Period of appeal
From MTC to RTC and from RTC (original) to CA By notice of appeal: 15 days from notice of the judgment or final order By record of appeal: 30 days from notice of the judgment or final order From MTC to RTC (appellate) to CA: 15 days from notice of the judgment or final order but the Court of Appeals may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer than 15 days. 5. Parties Involved Original Parties to the action remain the same during appeal (albeit with the corresponding appellation of appellant and appellee), the lower court or quasi-judicial agency is not to be impleaded.

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Distinctions Between Rule 45 and Rule 65 Based on J. Regalados Commentary (Asked in the 1999 and 2008 Bar Exams ) Rule 45 Appeal by Certiorari Rule 65 Original Action for Certiorari 6. Requirement of Motion for Reconsideration For purposes of appeal, MR is not required 7. Exercise of Jurisdiction The Appellate Court exercises its appellate jurisdiction and power of review Higher Court exercises original jurisdiction under its power of control and supervision over the proceedings of lower courts. MR is a CONDITION PRECEDENT subject only to certain exceptions. Matrix of Periods Period to Appeal By notice of appeal - 15 days from notice of the judgment or final order By record of appeal 30 days from notice of the judgment or final order By notice of appeal - 15 days from notice of the judgment or final order By record of appeal 30 days from notice of the judgment or final order 15 days from notice of the judgment or final order OR from denial of MR or MNT Extensions No extensions allowed Effect of MR or MNT Interrupts the period to appeal

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MTC to RTC

No extensions allowed

Interrupts the period to appeal

This fresh period rule shall also apply to: Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. [Neypes vs. CA, (2005)] A party litigant may now file his notice of appeal either within fifteen days from receipt of the original decision or within fifteen days from the receipt of the order denying the motion for reconsideration. Being procedural in nature, Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent. [First Aqua Sugar v. BPI (2007)]

RTC to CA

MTC to RTC to CA

g. Perfection of appeal
Perfection of an appeal in the manner and within the period laid down by law is mandatory and jurisdictional. [Balgami vs. CA (2004)] Rationale: Appeal is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. It is neither a natural right nor a part of due process. Effect of failure to perfect appeal Defeats a partys right to appeal. Precludes appellate court from jurisdiction.

acquiring

Camposagrado vs. Camposagrado (2005): Failure to pay the appellate court docket fee within the

15 days from Fresh notice of the period to award, appeal judgment, from final order or denial MR resolution or or MNT QJA from date of to CA last publication if required by law OR from denial of MR or MNT 15 days from Fresh RTC notice of period to to SC judgment or appeal RTC final order from to CA OR from denial MR to SC denial of or MNT CA to petitioners SC MR or MNT. reglementary period confers only a discretionary (not mandatory) power to dismiss the proposed appeal. Such discretion should consider all attendant

The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer then 15 days. The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer then 15 days. The SC may grant a 30 day extension for justifiable reasons.

Fresh period to appeal from denial MR or MNT

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circumstances and must be exercised with a view to substantial justice. of the petition. The petition shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the denial of petitioners MNT or MR filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. [Rule 42, Sec. 1] (Asked in the 1999 and 2002 Bar Exam) Petition for review from RTC to CA [Rule 42] APPLICABILITY - Appeal of RTC decision rendered in exercise of appellate jurisdiction [Rule 42, Sec. 1] CERTIFICATE OF NON-FORUM SHOPPING (CNFS) Petitioner in a petition for review in CA/SC must submit a CNFS with the petition. However, this rule is relaxed where there is need to conduct a review. In those instances, petitioner may comply with the requirement after he has filed the petitions. [Rule 42, Sec.1] MTC to RTC to CA to SC Rule 41. Sec.2(c). Appeal by certiorari.In all cases where only questions of law are raised or involved, the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45. Rule 45, Sec.1. Filing of petition with Supreme Court.A party desiring to appeal by certiorari from a judgment or final order or resolution of the CA, the Sandiganbayan, the RTC or other courts whenever authorized by law, may file with the SC a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. (Asked in the 2002 Bar Exams) Applicability of Rule 45 Rule 45, Sec.9. Rule applicable to both civil and criminal cases.The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Filing of petition File with the SC a verified petition for review on certiorari. In 18 copies, with the original copy intended for the court being indicated as such by the petitioner.

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Republic v. Bermudez-Lorino (2005): Appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. Medina vs. CA (1992): A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. Espina vs. CA (1992): However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. Appeal from MTC to RTC: the rules on perfection of appeal from RTC to CA applies. From the Regional Trial Court to CA: By notice of appeal: perfected as to party who filed notice upon filing of the same in due time - The court loses jurisdiction over the case upon perfection of appeal AND expiration of time to appeal of the other parties. By record on appeal: perfected as to the party who filed appeal and with respect to the subject matter thereof upon approval of the record filed in due time - The court loses jurisdiction upon approval of the records on appeal AND expiration of the time to appeal of the other parties From MTC to RTC (appellate jurisdiction) to CA: upon timely filing of a petition for review and the payment of the corresponding docket and other lawful fees. The RTC loses jurisdiction upon perfection of appeals filed in due time AND the expiration of time to appeal of other parties.

h. Appeal from judgments or final orders of the MTC


MTC to RTC Rule 40, Sec.1. Where to appeal.An appeal from a judgment or final order of a MTC may be taken to the RTC exercising jurisdiction over the area to which the former pertains. The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party the appellee. The other provisions governing appeal from RTC to CA so long as they are not inconsistent are applicable to appeal from MTC to RTC. MTC to RTC to CA File a verified petition for review with the CA, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500 for costs and furnishing the RTC and the adverse party with a copy

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Petition shall raise only questions of law which must be distinctly set forth. Contents of petition (Sec. 4) Full name of the appealing party (petitioner) and the adverse party (respondent). Without impleading the lower court or judges as petitioners/respondents. Material dates: - When notice of the judgment or final order or resolution subject thereof was received; - When a motion for new trial or reconsideration (if any) was filed and when notice of the denial thereof was received. Concise statement of the matters involved, and the reasons/arguments relied on for the allowance of the petition; A clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; Certificate of non-forum shopping. File petition within 15 days from notice: of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the SC may for justifiable reasons grant an extension of 30 days only within which to file the petition. [Rule 45, Sec. 2] Rule 45, Sec.3. Docket and other lawful fees; proof of service of petition.Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. Dismissal or denial of petition Rule 45, Sec.5. Dismissal or denial of petition.The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, 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. The SC may on its own initiative deny the petition on the ground that the appeal is without merits, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. Review is discretionary A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefore. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered: When the court a quo has decided a question of substance, not theretofore determined by the SC, or has decided it in a way probably not in accord with law or with the applicable decisions of the SC; or When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. May require pleadings and documents Rule 45, Sec.7. Pleadings and documents that may be required; sanctions.For purposes of determining whether the petition should be dismissed or denied pursuant to sec.5 of this Rule, or where the petition is given due course under sec.8 hereof, the SC may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and impose the corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or non-compliance with the conditions therefor. Due course and elevation of records Rule 45, Sec.8. Due course; elevation of records.If the petition is given due course, the SC may require the elevation of the complete record of the case or specified parts thereof within 15 days from notice. MTC to SC The remedy is a petition for certiorari under Rule 65. This is not an appeal.

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i. Appeal from judgments or final orders of the RTC


RTC to CA Under Rule 41, an appeal of judgment or final order under that completely disposes of either: The case; A particular matter in the case, when declared by ROC to be appealable. Not appealable under Rule 41 Order denying motion for new trial or reconsideration; Order denying petition for review or any similar motion seeking relief from judgment; Interlocutory order; Order disallowing/dismissing appeal; Order denying motion to set aside judgment by consent or confession or compromise on ground of fraud or mistake or duress or any other vitiation of consent;

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Order of execution; While the case is pending, judgment or final order: - For/against one or more of several parties; - In separate claims, counterclaims, crossclaims, third-party complaints. Exception: If court allows appeal. Order dismissing an action without prejudice. In the 8 cases not appealable under Rule 41, the aggrieved party may file a special civil action under Rule 65. Interlocutory order Definition: If it does not dispose of the case but leaves something else to be done by the trial court on the merits of the case. [Investments, Inc. vs. CA (1987)] For purposes of appeal, an order is final if it disposes of the entire case. An order for partial summary judgment is an interlocutory order which cannot be appealed from. The trial court had not yet rendered a complete final judgment. [GSIS vs. Phil. Village Hotel (2004)] Multiple appeals Civil cases which admit of multiple appeals: Judgment in an action for recovery or for partition of property is separately appealable from the proceedings on that part of the judgment wherein accounting for receipts from the property is ordered as a primary or incidental relief. When such accounting is submitted and either approved or rejected by the trial court, another appeal lies therefrom. Special civil actions: - Expropriation; (Rule 67) - Judicial partition; (Rule 69) - Judicial foreclosure of mortgage; (Rule 68) Special proceedings also admit of multiple appeals. Ko vs. PNB (2006): The order of dismissal due to failure to prosecute is appealable by notice of appeal under Rule 41. Philexport vs. PI (2004): But an order of dismissal without prejudice is not appealable under Rule 41. Lanaria v. Planta (2007): Submission of a document together with the motion for reconsideration constitutes substantial compliance with compliance with Section 2, Rule 42 or the requirement that relevant or pertinent documents be submitted along with the petition, and calls for the relaxation of procedural rules RTC to CA to SC The remedy is a petition for review on certiorari under Rule 45. RTC to SC The remedy is a petition for certiorari under Rule 65. This is not an appeal.

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j. Appeal from judgments or final orders of the CA


CA to SC The remedy is a petition for review on certiorari under Rule 65.

k. Appeal from judgments or final orders of the CTA


RA 9282: Decisions of the CTA are now appealable to the SC by petition for review on certiorari under Rule 45.

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
The remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review thereof under Rule43 of the Rules of Court within fifteen days from notice of the resolution. [DECS v. Cuanan (2008)]

o. Review of final judgments or final orders of the Ombudsman p. Review of final judgments or final orders of the NLRC
Rule 43, Sec.2. Cases not covered.This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. NLRC judgments and final orders or resolutions are now reviewable, in the first instance, by the Court of Appeals on certiorari under Rule 65, but those of the Employees Compensation Commission should be brought to the Court of Appeals through a petition for review under this Rule. Also, appeals from the Office of the Ombudsman in administrative disciplinary cases are now covered by this Rule. [Fabian vs. Desierto (1998)]

q. Review of final judgments or final orders of quasi-judicial agencies


QJA to CA Applicability Appeals from judgments or final orders of the CTA and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency (QJA) in the exercise of its quasi-judicial functions: (arranged alphabetically) Agricultural Inventions Board (AIB); Board of Investments (BOI); Bureau of Patents, Trademarks and Technology Transfer (BPTTT);

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Central Board of Assessment Appeals (CBAA); Civil Aeronautics Board (CAB); Civil Service Commission (CSC); Construction Industry Arbitration Commission; Department of Agrarian Reform (DAR under RA 6657) Employees Compensation Commission (ECC); Energy Regulatory Board (ERB); Government Service Insurance System (GSIS); Insurance Commission; Land Registration Authority (LRA); National Electrification Administration (NEA); National Telecommunications Commission (NTC); Office of the President (OP); Philippine Atomic Energy Commission (PAEC); Securities and Exchange Commission (SEC); Social Security Commission (SSC); Voluntary arbitrators authorized by law. when the questioned order amounts to an oppressive exercise of judicial authority. [DECS v. Cuanan (2008)] QJA to CA to SC Remedy is a petition for review on certiorari under Rule 45. QJA to SC Remedy is a petition for certiorari under Rule 65, which is not an appeal.

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3. Relief from judgments, orders and other proceedings


Definition: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he is unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake or excusable negligence. Francisco vs. Puno: A party who has filed a timely motion for new trial or motion for reconsideration can no longer file a petition for relief from judgment after his motion has been denied. These remedies are mutually exclusive. It is only in appropriate cases where a party aggrieved by the judgment has not been able to file a motion for new trial or motion for reconsideration that a petition for relief can be filed.

A resolution of the DOJ Secretary is not appealable under Rule 43. Recourse should be to the President, instead of the CA, under the established principle of exhaustion of administrative remedies. [Orosa vs. Roa (2006)] Exhaustion of administrative remedies: If an appeal/remedy obtains or is available within the administrative machinery, this should be resorted to before resort can be made to the courts. Under Rule 43, Sec. 4 the petition should be filed within 15 days from: Notice of the final order; or The date of its last publication, if publication is required by law for its effectivity; or The denial of the petitioners MFR duly filed according to the governing law of the court or agency a quo. [Villorente vs. Laiya (2005)] Under Rule 43, there is no need to implead the lower court or agency which rendered the assailed decision. [Basmayor v. Atencio (2005)] Submission of the duplicate original or certified true copy of judgment, order, resolution or ruling subject of a petition for certiorari is essential to determine whether or not the court, body or tribunal which rendered the same indeed committed grave abuse of discretion. Either a legible duplicate original or certified true copy thereof shall be submitted. If what is submitted is a copy, then it is required that the same is certified by the proper officer of the court, tribunal, agency or office involved. This is to assure that such copy is a faithful reproduction of the judgment, order, resolution or ruling subject of the petition. [Coca-cola v. Cabalo (2006)] Recourse to a petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy. Nonetheless, there are exceptions to this rule: when public welfare and the advancement of public policy dictates; when the broader interest of justice so requires; when the writs issued are null and void; or

a. Grounds for availing of the remedy


Rule 38, Sec.1. Petition for relief from judgment, order, or other proceedings.When 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, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. The relief provided for by Rule 38 is of equitable character and is only allowed in exceptional cases, that is where there is no other available or adequate remedy. A petition for relief is not regarded with favor and judgment will not be disturbed where the party complaining has or by his exercising proper diligence would have had an adequate remedy at law, as where petitioner could have proceeded by appeal to vacate or modify the default judgment. [Manila Electric vs. CA (1990)) Petition for relief under Rule 38 is an admission that the period to appeal from the decision had already expired. [David vs CA (1992))

b. Time to file petition


Rule 38, Sec.3. Time for filing petition; contents and verification.A petition provided for in either of the preceding sections of this Rules must be verified, filed within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set

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aside, and not more than 6 months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioners good and substantial cause of action or defense, as the case may be. Both periods must concur. They are also nonextendible and never interrupted.

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4. Annulment of Judgments or final orders and resolutions


a. Grounds for annulment b. Period to file action c. Effects of judgment of annulment

c. Contents of petition
Rule 38, Sec.2. Petition for relief from denial of appeal.When a judgment of final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course. Under both grounds, the petition shall be filed in the same court which rendered the judgment and in the very same case. Prayer in petition for relief from judgment: That the judgment/order/proceeding be set aside; That the appeal be given due course. Form and content of petition: Must be verified; Must be accompanied by an affidavit showing the fraud, accident, mistake or excusable negligence relied upon; The affidavit of merit accompanying the petition must also show the facts constituting the petitioners good and substantial cause of action or defense. 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 denial of the petition so long as the facts required to be set out also appear in the verified petition. When an affidavit of merit is not necessary: When there is lack of jurisdiction over the defendant; When there is lack of jurisdiction over the subject matter; When judgment was taken by default; When judgment was entered by mistake or was obtained by fraud; or Other similar cases. Two hearings in a petition for relief from judgment: Hearing to determine whether or not the judgment should be set aside; If option a) is in the affirmative, hearing upon the merits of the case. Other remedies after finality of judgment: Action to Annul a Judgment Certiorari Collateral Attack of a Judgment that is Void on its Face

5. Collateral attack of judgments


Remedies from a Void Judgment (Asked in the 2004 BAR EXAMS) What is a void judgment? A void judgment is no judgment at all. It cannot be the source of any right nor of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void. It may be said to be a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head. A void judgment never acquires finality. A void judgment is not entitled to the respect accorded to a valid judgment, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It is attended by none of the consequences of a valid adjudication. It has no legal or binding effect or efficacy for any purpose or at any place. It cannot affect, impair or create rights. It is not entitled to enforcement and is, ordinarily, no protection to those who seek to enforce. All proceedings founded on the void judgment are themselves regarded as invalid. In other words, a void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. It, accordingly, leaves the parties litigants in the same position they were in before the trial. A judgment may be void for lack of due process of law. [Spouses Benatiro vs. Heirs of Cuyos (2008)) How do you attack a void judgment? It may be assailed anytime, collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked, unless barred by laches. [Spouses Benatiro vs. Heirs of Cuyos (2008)) What are your remedies? If the reglementary period for appeal has not yet lapsed, some remedies are New Trial and Reconsideration. Appeal, Petition for Relief, and Other Appropriate Remedies such as Certiorari may also be used. If the appropriate remedies are no longer available without the fault of the petitioner, the equitable and extraordinary remedy of Petition for Annulment of Judgment may be resorted to.

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When all else fails, there is jurisprudence to the effect that a patently void judgment may be dealt with by a Main Action for Injunction. Some jurisprudential basis Remedial Law Jurisprudence such as Spouses Benatiro vs. Heirs of Cuyos, (2008) and Agustin vs. Bacalan, (1985) on the matter of void judgment particularly refer to Rule 47 as a remedy against a void judgment. This remedy, however, should be availed of only when the appropriate remedies are no longer available without fault on the part of the petitioner. Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based "only on the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence recognizes denial of due process as additional ground therefore (Spouses Benatiro Case). Montinola vs. Judge Gonzales (1989): A VOID JUDGMENT IS LIKE AN OUTLAW WHICH MAY BE SLAIN AT SIGHT WHEREVER OR WHENEVER IT EXHIBITS ITS HEAD. The proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment. Assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original proceeding and not by motion in the cause" (Banco Espanol vs. Palanca). A final judgment may be annulled on the ground of lack of jurisdiction, fraud, or that it is contrary to law. (Panlilio vs. Garcia, 119 SCRA 307) The term finality of judgment for purposes of appeal refers to interlocutory orders which: are not decisions within the constitutional definition [Armargo v. CA] are those that determine incidental matters that do not touch on the merits of the case or put an end to proceedings. The following are examples of an interlocutory order: - an order denying a motion to dismiss; - an order granting an extension of time to file a pleading, or one authorizing an amendment thereof; - order granting or denying applications for postponement or inspection of documents. [Riano] The word interlocutory refers to something intervening between the commencement and the end of a suit which decides some point or matter but is not a final decision of the whole controversy. [Ramiscal, Jr. v. Sandiganbayan] A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties' next move (which among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes 'final or, to use the established and more distinctive term, 'final and executory. The proper remedy to question an improvident interlocutory order is a petition for certiorari under Rule 65, not Rule 45. A petition for review under Rule 45 is the proper mode of redress to question only final judgments. Investments, Inc. v. Court of Appeals Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding. [Rule 39.1, RoC] It can be noted that the Supreme Court made a hairline distinction between finality of order for appeals and for execution. It is submitted that upon courts issuance of a judgment touching upon the merits of a case, it is final for the purposes of an appeal, but NOT for execution. Finality for the purposes of execution refers to the expiration of the period to appeal and no appeal was perfected.

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XVII. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS


1. Difference between finality of judgment for purposes of appeal; for purposes of execution 2. When execution shall issue 3. How a judgment is executed 4. Properties exempt from execution 5. Proceedings where property is claimed by third persons 6. Rules on Redemption 7. Examination of Judgment Obligor When Judgment is unsatisfied 8. Examination of Obligor of Judgment Obligor 9. Effect of Judgment or Final Orders 10. Enforcement and Effect of Foreign Judgments or Final Orders

1. Difference between finality of judgment for purposes of appeal; for purposes of execution

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2. When execution shall issue

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General rule: When the judgment or order becomes executory, the court cannot refuse to issue a writ of execution. Exceptions: The issuance of a writ of execution which issues as a matter of right can be countered in any of the following cases (R-I-N-S-E-D): When a PETITION FOR RELIEF or an action to enjoin judgment is filed and a preliminary injunction is prayed for and granted (Rule 38.5); When the judgment turns out to be INCOMPLETE OR IS CONDITIONAL since as a matter of law, such judgment CANNOT BE FINAL; When the judgment has been NOVATED BY THE PARTIES When SUBSEQUENT FACTS AND CIRCUMSTANCES transpire as to render such execution unjust or impossible On EQUITABLE GROUNDS as when there has been a change in the situation of the parties which makes execution INEQUITABLE. When the judgment becomes DORMANT, the 5year period under Rule 39.6 having expired without the judgment having been revived.

After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. The maximum period within which a final and executory judgment may be executed is 20 years (Rule 39.6 in relation to New Civil Code provision on prescription of judgment). Exceptions: Judgments for support WHICH DO NOT BECOME DORMANT AND WHICH CAN BE EXECUTED BY MOTION [Canonizado v. Benitez] except for support in arrears beyond 10 years from the date they become due; Contempt orders by reason of unauthorized reentry on the land by the ejected defendant [Azotes v. Blanco]; Issuance of writs of possession in FORECLOSURE CASES within the statute of limitations; Land registration proceedings (and other special proceedings), hence the right to ask for a WRIT OF POSSESSION THEREIN NEVER PRESCRIBES

a. Execution as a matter of right


See Annex D. General rule: An ex parte motion for the issuance of the writ of execution would suffice since the trial court may take judicial notice of the record of the case to determine the propriety of the issuance thereof. Exception: However when the losing party shows that subsequent facts had taken place which would render the execution unjust, a hearing on the motion should be held. [Luzon Surety v. Beson (1976)] General rule: An appeal seasonably perfected shall stay the execution of the judgment, unless discretionary execution is granted by the court. Exceptions: However, judgments in the following action, despite perfection of an appeal, shall be executed, unless the court orders otherwise: injunction receivership accounting support such other judgments as shall now or may hereafter be declared to be immediately executory Judgments in these actions shall be enforceable after their rendition and shall not, be stayed by an appeal taken therefrom, UNLESS OTHERWISE ORDERED BY THE TRIAL COURT. General rule: A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. [Sec. 6, Rule 39]

b. Discretionary execution
See Annex E. General rule: Under the Rule on Discretionary Execution (also called execution pending appeal), the court rendering the judgment, if it still has jurisdiction, may exercise discretion and order execution pending appeal (Asked in the 2002 Bar Exam). It is the execution of a judgment or final order before it attains finality. The court which rendered the decision can grant an execution pending appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the filing of the motion; otherwise, the motion shall be acted upon by the appellate court. To be valid, there should be a good reason to justify the execution of the judgment pending appeal, the same to be stated in the order granting it. Exception: This rule, however, is inapplicable in the case of the Court of Appeals. The Rule on Discretionary Execution contemplates a situation where a judgment or final order rendered in the exercise of its original jurisdiction and the prevailing party in said decision seeks immediate execution during the pendency of an appeal. The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF ITS OWN DECISIONS THEREIN. Discretionary execution is allowed pending appeal of judgment or final order of the trial court upon good reasons to be stated in a special order.

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Heirs of Justice J.B.L. Reyes v. CA (2000) : A JUDGMENT OF THE CA CANNOT BE EXECUTED PENDING APPEAL. It is acquired either by the arrest of the accused or by his voluntary appearance in court. General rule: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution. Exception: However, THE FILING OF SUPERSEDEAS BOND does not entitle the judgment debtor to the suspension of execution as a MATTER OF RIGHT. Where the needs of the prevailing party are URGENT, the Court can order immediate execution despite such SUPERSEDEAS BOND. [Regalado] then deliver said payment to the judgment obligee in satisfaction of the judgment. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him. ii. Satisfaction by levy Nature: LEVY MEANS THE ACT OR ACTS by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale [Llenares v. Vandevella (1966)]. If susceptible of appropriation, the officer REMOVES AND TAKES THE PROPERTY FOR SAFEKEEPING; otherwise the same is placed under sheriffs guards. Without valid levy having been made, ANY SALE OF THE PROPERTY THEREAFTER is void. Procedure: If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon: the properties of the judgment obligor of every kind and nature whatsoever which may be disposed, of for value, and not otherwise exempt from execution The sheriff gives the judgment obligor the option as to which of the property or part thereof may be levied upon, sufficient to satisfy the judgment. 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 judgment. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Levy seizure of property, personal and/or real, belonging to the judgment debtor for subsequent execution sale to satisfy judgment Garnishment is Garnishment the process of notifying a third person (the garnishee) to retain and attach the property he has in his possession or under his control belonging to the judgment debtor, to make disclosure to the

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3. How a judgment is executed


a. Execution by motion or by independent action b. Issuance and contents of a writ of execution c. Execution of judgments for money (asked in the 2007 Bar Exam)
i. Immediate payment on demand Procedure: The sheriff or executing officer demands from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or ANY OTHER FORM OF PAYMENT ACCEPTABLE TO THE LATTER (e.g., dacion en pago), the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall

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court concerning the same, and to dispose of the same as the court shall direct to satisfy the judgment. (Sec. 9, Rule 39) iii. Garnishment of debts and credits Scope: The officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. The process of levying shall be called garnishment if the property involved is money, stocks, or other incorporeal property in the HANDS OF THIRD PERSONS. Garnishment merely sets apart such funds but does not constitute the creditor as owner of the garnished property. Garnishment is not a violation of RA 1405 on the secrecy of bank deposits. [Chinabank v. Ortega] Procedure: Levy shall be made by SERVING NOTICE UPON THE PERSON OWING SUCH DEBTS OR HAVING IN HIS POSSESSION OR CONTROL SUCH CREDITS TO WHICH THE JUDGMENT OBLIGOR IS ENTITLED. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. The garnishee shall make a WRITTEN REPORT to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall BE DELIVERED DIRECTLY TO THE JUDGMENT OBLIGEE within ten (10) working days from service of notice on said garnishee requiring such delivery, except the lawful fees which shall be paid directly to the court. In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due, otherwise, the choice shall be made by the judgment obligee. The executing sheriff shall observe the same procedure under IMMEDIATE PAYMENT ON DEMAND with respect to delivery of payment to the judgment obligee. Under this situation, there is a judgment which directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform, any other specific act IN CONNECTION THEREWITH. If the party so ordered fails to comply within a specified period, there are two possible remedies. Either: the court may DIRECT THE ACT TO BE DONE AT THE COST OF THE DISOBEDIENT PARTY by some other person appointed by the court and the act when so done shall have like effect as if done by the party, or if real or personal property is situated within the Philippines, the court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. ii. Sale of real or personal property If judgment is rendered ordering the sale of real or personal property, an order for execution shall be issued describing such property as may be ordered sold, selling it, and applying the proceeds in conformity with the judgments instructions. iii. Delivery or restitution of real property The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee. Otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. ANY COSTS, DAMAGES, RENTS OR PROFITS AWARDED BY THE JUDGMENT SHALL BE SATISFIED IN THE SAME MANNER AS A JUDGMENT FOR MONEY. iv. Removal of improvements on property subject of execution When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after the hearing and after the former has failed to remove the same within a reasonable time fixed by the court. v. Delivery of personal property In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided.

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d. Execution of judgments for specific acts


i. Conveyance, delivery of deeds, or other specific acts

e. Execution of special judgments


When a judgment requires the performance of ANY ACT OTHER THAN THOSE MENTIONED IN THE TWO

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PRECEDING SECTIONS (EXECUTION OF JUDGMENT FOR MONEY AND SPECIFIC ACTS), 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 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. Special judgments are those which can be complied with by the judgment obligor because of his personal qualifications or circumstances (e.g., a judgment ordering a partner to render an accounting, a judgment ordering a party to comply with his recording contract otherwise, pay damages). Note the difference with sections 9 and 10 (on execution of money judgments and specific acts) where contempt is not a remedy against disobedience by a party. The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; Properties specially exempted by law. (e.g., property mortgaged to the DBP [Section 26, CA 458]; savings of national prisoners deposited with the POSTAL SAVINGS BANK [Act 2489]; benefits from private retirement systems of companies and establishments with limitations [RA 4917]; laborers wages except for debts incurred for food, shelter, clothing and medical attendance [ART 1708, CIVIL CODE]; benefit payments from SSS [Section 16, RA 1161 AS AMENDED]) Exception: However, no article or species of property mentioned in this section shall be exempt from: execution issued upon a judgment recovered for its price, or upon a judgment of foreclosure of a mortgage thereon. [Herrera v. Mcmicking]: The exemptions MUST BE CLAIMED, otherwise they are deemed waived. It is not the duty of the sheriff to set off the exceptions on his own initiative. Return of writ of execution The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties. [Section 12, Rule 39] Notice requirement Before the sale of property on execution, notice thereof must be given as follows: In case of perishable property, by posting written notice of the time and place of the sale in three (3) public places, preferably in conspicuous areas of the (CPM) municipal or city hall, post office and public market in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property;

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f. Effect of levy on third persons

4. Properties exempt from execution


General rule: Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (FOTNUPLBS-GMRE) 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; Three horses, or three cows, or three 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 one hundred thousand pesos; Provisions for individual or family use sufficient for four months; The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; One fishing boat and accessories not exceeding the total value of one hundred thousand pesos 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 four 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;

REMEDIAL LAW REVIEWER


In case of other personal property, by posting a similar notice in the three (3) public places above-mentioned for not less than five (5) days; In case of real property, by posting for twenty (20) days in the three (3) public places abovementioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city; In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13. The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o'clock in the morning and not later than two o'clock in the afternoon (9am-2pm). The place of the sale MAY BE AGREED UPON BY THE PARTIES. In the absence of such agreement, the sale of the property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ of or which was designated by the appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located. [Section 15, Rule 39] PENALTIES (Selling without notice and defacing notice) An officer selling A person willfully without the notice removing or defacing the prescribed by section 15 notice posted of this Rule pay punitive damages in if done before the sale, the amount of P5,000 to or before the satisfaction any person injured of the judgment if it be thereby, in addition to satisfied before the sale, his actual damages, both shall be liable to pay to be recovered by P5,000 to any person motion in the same injured by reason action thereof, in addition to his actual damages, to be recovered by motion in the same action Preventing execution sale At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. [Section 18, Rule 39] This is akin to the equitable right of redemption under Rule 68, which is available to the judgment obligor in judicial foreclosure of mortgage. The difference lies in the fact that under Rule 68, a definite period is given. Concluding the execution sale When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess. [Section 21, Rule 39] By written consent of the judgment obligor and obligee, or their duly authorized representatives, the officer may adjourn the sale to any date and time agreed upon by them. Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned [Section 22, Rule 39]. Written consent is essential, otherwise the adjournment will be void [Abrozar v. IAC (1988)] Upon a sale of real property , the officer must give to the purchaser a certificate of sale containing: A particular description of the real property sold; The price paid for each distinct lot or parcel; The whole price paid by him; A statement that the right of redemption expires one (1) year from the date of the registration of the certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated. [Section 25, Rule 39] How property sold on execution (See table on Service of summons upon different entities)

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5. Proceedings where property is claimed by third persons


a. in relation to third attachment and replevin party claim in

Remedies of a Third-Party Claimant Summary hearing before the court which authorized the execution Terceria or third-party claim filed with the sheriff Action for damages on the bond posted by the judgment creditor Independent reivindicatory action The aforementioned are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of the others. [Sy vs. Discaya (1990)] Rules regarding terceria (third-party (ASKED IN THE 2000 & 2005 BAR EXAMS) claims)

The third person whose property was levied on must make an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title. He must serve the same upon the officer making the levy and copy thereof upon the judgment

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obligee. The officer shall not be bound to keep the property as a general rule. Sheriff is bound to keep the property when the judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the thirdparty claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value of the bond, 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 Apart from Rule 39, the only other provisions of the Rules of Court dealing with terceria or third party claims are Rule 57.14 on preliminary attachment and Rule 60.7 on replevin. Sierra v. Rodriguez and Northern Motors v. Coquia: The third party claimant CANNOT APPEAL NOR AVAIL OF CERTIORARI AS A REMEDY in the event that his claim was denied since HE IS A NONPARTY to the original action. Intervention by a third-party claimant whose property had been levied upon by the sheriff in the action from which the writ pursuant to which the levy was made was issued must be made before rendition of judgment by the trial court. He can no longer intervene once the trial court already issues a writ of execution. [Bautista] - REDEMPTIONER, within one year from the date of registration of the certificate of sale; or within 60 days from the last redemption by another redemptioner. - BUT IN ALL CASES, the judgment obligor shall have the entire period of 1 YEAR from the date of registration of the sale to redeem the property. - IF THE JUDGMENT OBLIGOR REDEEMS, no further redemption is allowed and he is restored to his estate. - THE PERIOD FOR REDEMPTION IS NOT SUSPENDED by an action to annul the foreclosure sale. If the certificate of sale is not registered, the period for redemption does not run (Garcia vs. Ocampo). But where parties agreed on the date of redemption, the statutory period for legal redemption was converted into one of conventional redemption and the period binding on them is that agreed upon. [Lazo v. Republic Surety & Insurance Co., Inc (1970)] The right of redemption is transferable and may be voluntarily sold [Gomez v. La Germinal] but said right cannot be levied upon by the judgment creditor. The creditor may not deprive the debtor of any further rights to the property [Lichauco v. Olegario] In effecting redemption, the mortgagor has the duty of tendering payment (actual tender of payment of the redemption price) before the redemption period expires. [Banco Filipino Savings and Mortgage Bank v. CA (2005)] However, neither to make an offer to redeem nor to make tender of payment of the repurchase price is necessary when the right to redeem is exercised through the filing of a complaint to redeem. The filing of an action to redeem within that period is equivalent to a formal offer to redeem. [Vda. de Panaligan v. CA (1996)] Redemption price varies depending on who the redemptioner is: - If judgment obligor: Purchase price o 1 % interest thereon up to the time of redemption o Any amount of assessments or taxes which the purchaser may have paid thereon after purchase and interest on such last named amount at the same rate. o If the purchaser be also a creditor having prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. - If redemptioner: Amount paid on the last redemption o 2% interest thereon. o Any amount of assessments or taxes which the last redemptioner may have paid thereon after redemption by him with interest on such last named amount;

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6. Rules on Redemption
There is no right of redemption where the property sold at judicial sale is personal property. Real property sold or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: - The judgment obligor; or his successor in interest in the whole or any part of the property; - 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. Such redeeming creditor is termed a redemptioner. [Section 27, Rule 39] Redemption can be made by either: - JUDGMENT OBLIGOR, within one year from the date of registration of the certificate of sale

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o Amount of any liens held by said last redemptioner prior to his own with interest period of redemption. In all, the judgment debtor shall exercise the following rights: - Remain in possession of the property - He cannot be ejected; - Use the property in the same manner it was previously used; - Make Necessary repairs to buildings thereon while he occupies the property - Use it in the ordinary course of husbandry - Collect rents, earnings and income derived from the property until the expiration of period of redemption. [Section 33, Rule 39] If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party IS ACTUALLY HOLDING THE PROPERTY adversely to the judgment obligor. Recovery of purchase price and revival of judgment: A judgment co-debtor may compel a contribution from the others: - When property liable to an execution against several persons is sold thereon, and - more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or - one of them pays, without a sale, more than his proportion, A surety may compel repayment from the principal: - When a judgment is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale. [Section 35, Rule 39]. -

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Effects of redemption [Section 29, Rule 39] If the judgment obligor redeems he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale. [Section 30, Rule 39] A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered, OR, if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds, OR an original or certified copy of any assignment necessary to establish his claim; AND an affidavit executed by him or his agent, showing the amount then actually due on the lien. [Section 31, Rule 39] Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used, or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property. The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his

7. Examination of Judgment Obligor When Judgment is unsatisfied

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8. Examination Judgment Obligor

of

Obligor

of

Does a Party Litigant Enjoy Any Discovery Rights After the Promulgation of Final and Executory Judgment? Yes. See Secs. 36-38, Rule 39 [Bautista] Remedies of Judgment Creditor in Aid of Execution [Sections 36-43] (Asked in the 2008 Bar Exam particularly steps to be taken if writ of execution is unsatisfied) If the execution is returned unsatisfied, he may cause the examination of the judgment debtor as to his property and income [Sec. 36] (asked in the 2002 bar exam) He may cause examination of the debtor 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 after examination, the court finds the 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. A party or other person may be compelled by an order or subpoena to attend before the court or commissioner to testify as provided in sect 3637. - if the court finds the earnings of the judgment debtor are more than sufficient for his familys needs, it may order payment in 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 the judgment debtor had an ascertainable interest in real property either as mortgagor, mortgagee or otherwise, and his interest can be ascertained without controversy, the court may order a sale of such interest [Sec. 42]. - 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] Entry of satisfaction Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, - upon the return of a writ of execution showing the full satisfaction of the judgment, or - upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel

- UNLESS a revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee or his counsel, on the face of the record of the judgment. [Sec. 44, Rule 39] Whenever a judgment is satisfied in fact, or otherwise than upon an execution on demand of the judgment obligor, - the judgment obligee or his counsel must execute and acknowledge, or indorse an admission of the satisfaction as provided in the last preceding section, - and after notice and upon motion the court may order either the judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. [Sec. 45, Rule 39]

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9. Effect of Judgment or Final Orders


RES JUDICATA IN JUDGMENTS IN REM Judgments or final order Against a specific thing Probate of a will or administration of the estate of a deceased person Conclusive as to Title of the thing The will or administration. However, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; Condition, status or relationship of the person,

IN RESPECT TO THE PERSONAL, political, or legal condition or status of a particular person or his relationship to another

RES JUDICATA IN JUDGMENTS IN PERSONAM In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, 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 in the same capacity. CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF ISSUES (AUTER ACTION PENDANT) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. BAR BY FORMER JUDGMENT (RES JUDICATA) There is identity of parties, subject matter CONCLUSIVENESS OF JUDGMENT Identity of parties and subject matter.

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and causes of action The first judgment constitutes an absolute bar to all matters directly adjudged and those that might have been adjudged. The first judgment is conclusive only as to matters directly adjudged and actually litigated in the first action. Second action can be prosecuted. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact (Rule 39 Sec. 48). Such limitation on the review of foreign judgment is adopted in all legal systems to avoid repetitive litigation on claims and issues, prevent harassment of the parties and avoid undue imposition on the courts. This policy of preclusion rests on principles of comity, utility and convenience of nations. As a generally accepted principle of international law, it is part of the law of the Philippines by virtue of the Incorporation Clause (Section 2, Article II) of the 1987 Constitution [Regalado].

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REQUISITES OF RES JUDICATA finality of the former judgment; the court which rendered it had jurisdiction over the subject matter and the parties it must be a judgment on the merits there must be, between the first and second actions, identity of parties, subject matter and causes of action [Perez v. CA (2005)]

XVIII. PROVISIONAL REMEDIES


RES JUDICATA VS. LAW OF THE CASE VS. STARE DECISIS [Ayala Corporation v. Rosa-Diana Realty, (2000)] Res Judicata The ruling in one case is carried over to another case between the same parties Law of the Case Operates only in the particular and single case where the ruling arises and is not carried into other cases as a precedent The ruling adhered to in the particular case need not be followed as a precedent in subsequent litigation between other parties Stare Decisis

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

Nature of provisional remedies Jurisdiction over provisional remedies Preliminary Attachment Preliminary Injunction Receivership Replevin

1. Nature of provisional remedies


Definition Writs and processes available during the pendency of the action which may be resorted to by a litigant for the preservation or protection of their rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case; also known as ancillary or auxiliary remedies. They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter. [Calo vs. Roldan, 1946] Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. They may however be challenged before a superior court through a petition for certiorari under Rule 65.

Once a point of law has been established by the court, that point of law will, generally, be followed by the same court and by all courts of lower rank in subsequent cases where the same legal issue is raised

10. Enforcement and Effect of Foreign Judgments or Final Orders


EFFECT OF FOREIGN JUDGMENTS (Asked in the 2005 Bar Exam) In case of a judgment or final order upon a specific thing, the judgment or final order, is conclusive upon the title to the thing (Rule 39, Sec. 48). In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title (Rule 39 Sec. 48).

2. Jurisdiction remedies

over

provisional

All inferior courts can grant appropriate provisional remedies provided that the main action is within their jurisdiction. [B.P. 129]

3. Preliminary Attachment (Asked in the 2002 Bar Exam)


Definition: 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

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satisfaction of whatever judgment may be rendered in the case [Davao Light v CA 204 SCRA 343] Purposes To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. [Quasha vs. Juan (1982)] Action against a party who has removed or disposed of his property, or is about to do so, AND with intent to defraud his creditors; or Action against a party who does not reside and is not found in the Philippines, OR on whom summons may be served by publication. NOTE: the rule also refers to persons on whom summons may be served by publication and against whose property, preliminary attachment may be availed of such as: - Residents defendants whose identity or whose whereabouts are unknown (Rule 14.14) - Resident defendants who are temporarily out of the country (14.16)

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a. Grounds for issuance of writ of attachment [Rule 57.1] (Asked in 2001 and 2005)
A preliminary attachment may be applied for at the commencement of the action or at any time before the entry of judgment. It may be applied for by the plaintiff OR any proper party (including a defendant who filed a counterclaim, cross-claim, or a third party complaint) There are only specific situations where preliminary attachment may issue: Action for recovery of a specified amount of money or damages, EXCEPT moral and exemplary, - on a cause of action arising from law, contract, quasi-contract, delict, or quasidelict - against a party who is about to depart from the Philippines with intent to defraud his creditors; Action for money or property, embezzled or fraudulently misapplied or converted to his own use by either: - a public officer, an officer of a corporation, 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; 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; NOTE: rule makes no distinction between real and personal property [Riano] 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; NOTE: the delivery of counterfeit money or knowingly issuing a bounced check are considered as grounds under this rule [Riano]

Stages in the grant of preliminary attachment The court issues the order granting the application The writ of attachment issues pursuant to the order granting the writ The writ is implemented For the first two stages, jurisdiction over the person of the defendant is NOT necessary. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant. [Cuartero, supra]

b. Requisites
Case must be any of those where preliminary attachment is proper Applicant must file a motion (ex parte or with notice and hearing) Applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced; Applicant must post an attachment bond executed to the adverse party (Rule 57.3)

c. Issuance and contents of attachment; affidavit and bond

order

of

Issuance and contents of order of attachment [Rule 57.2] An order of attachment may be issued EITHER - ex parte or - upon motion with notice and hearing by the court in which the action is pending, It must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, EXCEPT if such party makes deposit or gives bond in an amount equal to that fixed in the order. The amount may be - sufficient to satisfy applicants demand, or - the value of the property to be attached, exclusive of costs.

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Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. Contents of affidavit of applicant [Rule 57.3] An order of attachment shall be granted only when it appears in the affidavit that: a sufficient cause of action exists the case is one of those mentioned in 57.1 there is no other sufficient security for the claim sought to be enforced by the action the amount due to 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. The affidavit and the bond must be filed with the court before the order issues. Condition of applicants bond [Rule 57.4] Applicant must give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ conditioned that the applicant will pay: all the costs which may be adjudged to the adverse party and all damages which the adverse party may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto. NOTE: the bond shall only be applied to all damages sustained due to the attachment. It cannot answer for those that do not arise by reason of the attachment (Riano). until jurisdiction over the person is acquired by service of summons. Otherwise, the implementation is null and void. [Riano] EXCEPTIONS TO CONTEMPORANEOUS SERVICE OF SUMMONS: [Rule 57.5] Summons could not be served personally or by substituted service despite diligent efforts, or Defendant is a resident of the Philippines temporarily absent therefrom, or Defendant is a non-resident, or The action is in rem or quasi in rem. Sheriffs Return [57.6] The sheriff, after enforcing the writ, shall make a return to the court which issued the writ stating the ff: a full statement of his proceedings under the writ a complete inventory of the property attached, together with any counter-bond given by the party against whom attachment is issued The sheriff shall serve copies of the return to the applicant. Manner of attachment of real and personal property [Rule 57.7]: Real property, or growing crops thereon, or any interest therein - filing with the registry of deeds: o a copy of the order, together with a description of the property attached, o notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, - leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. Personal property capable of manual delivery - by taking and safely keeping it in the sheriffs custody, after issuing the corresponding receipt therefor; Stocks or shares, or an interest in stocks or shares, of any corporation or company - by leaving with the president or managing agent thereof, o a copy of the writ, and o a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ; Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual

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d. Manner of attaching real and personal property; when property attached is claimed by third person
Manner of attaching property [Rule 57.5] The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicants demand, UNLESS Party against whom writ is issued makes a deposit with the court from which the writ is issued, or He gives a counter-bond executed to the applicant The levy on attachment shall be preceded or contemporaneously accompanied by service on the defendant within the Philippines of: summons copy of complaint application for attachment affidavit and bond of applicant order and writ of attachment.

e. Rule on prior or contemporaneous service of summons


General Rule: A writ of attachment may be issued ex parte even before the summons is served upon the defendant. BUT a writ may not be implemented

REMEDIAL LAW REVIEWER


delivery - by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, o a copy of the writ, and o A notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; Interest of the party whom attachment is issued in property belonging to the estate of the decedent - by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached and - By filing a copy of the writ and notice in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. Note: Property in custodia legis may be attached by: filing a copy of the writ of attachment with the proper court or quasi-judicial agency Serving a notice of attachment upon the custodian of the property [Rule 57.7] A previously attached property may also be subsequently attached. But the first attachment shall have priority over subsequent attachments. [Riano] Proceedings Where Attached Property Claimed By Third Person A third person who has a claim to the property attached may avail of the following remedies: By terceria making an affidavit of his title or right to possession, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching procedure [57.14] NOTE: the same procedure under Rule 39.16 is Followed Motion for summary hearing on his claim File a separate action to nullify the levy with damages due to the unlawful levy and seizure. The remedies stated are CUMULATIVE and any one of them may be resorted to without availing of the other remedies (Ching v CA 423 SCRA 356) - having in their possession or under their control any credits or other similar personal property belonging to the adverse party, or - owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment. Garnishment - a species of attachment for reaching the property or credits pertaining or payable to a judgment debtor (asked in the 1999 Bar Exams in comparison with Attachment). It is a warning to a person who has in possession property or credits of the judgment debtor not to pay the money nor deliver the property to latter but to appear and answer the plaintiffs suit. Perla Compania v. Ramolete, 1991: Service of summons upon the garnishee is not necessary. All that is necessary is the service upon him of the writ of garnishment, as a consequence of which he becomes a virtual party or a forced intervenor in the case. ii. Attachment of interest in property belonging to the estate of a decedent [RULE 57.9] The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the power of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. When any petition for distribution is filed, such personal representative shall report the attachment to the court, and in the order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. Sale of attached property Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the party attached is perishable, or that the interests of all the parties to the action will be will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. [Rule 57.11] NOTE: This is an exception to the general rule that the issuance of a writ of attachment is only a provisional remedy, thus no sale of the property should be made during the pendency of the action. [Riano]

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f. Discharge of attachment and the counterbond


Effects of attachment i. Attachment of debts, credits and all other similar personal property [RULE 57.8] All persons

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Recovery Upon the Counter-Bond; Disposition of Deposit/ Attached Property After Judgment When the judgment has become executory, the surety or sureties on any counter-bond given to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. [Rule 57.17] Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment the balance shall be refunded to the depositor or his assignee. If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. [Rule 57.18] If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. [Rule 57.19] Discharge of attachment After a writ of attachment has been enforced, party whose property has been attached, or person appearing on his behalf, may move for discharge of the attachment wholly or in part on security given. the the the the Such damages may be awarded only after hearing and shall be included in the judgment on the main case. [Rule 57.20] Procedure for claiming damages is EXCLUSIVE. Such claims for damages cannot be the subject of an independent action. EXCEPTIONS: Where the principal case was dismissed for lack of jurisdiction by the trial court without giving opportunity to the party whose property was attached to apply for and prove his claim; and Where the damages by reason of the attachment was sustained by a third person who was not a party to the action wherein such writ was issued. [Santos v. CA, 95 Phil 360]

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4. Preliminary Injunction
a. Definitions and Differences: Preliminary Injunction and Temporary Restraining Order
A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to either refrain from a particular act or acts or require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction A suit for injunction is an action in personam. It is an ancillary or preventive remedy that is meant to be temporary and subject to the final disposition of the principal action [Riano] Purpose: To prevent future injury and maintain the status quo (i.e. the last actual, peaceable, uncontested status which preceded the pending controversy) for [Kencht vs CA, 1993] NOTE: the injunction should not establish new relations between the parties but merely reestablish the pre-existing relationship between them. TRO vs. Injunction TRO May be granted ex parte if great and irreparable injury would result otherwise INJUNCTION Cannot be granted without notice and hearing

Grounds for discharge: Debtor has posted a counter-bond or has made the requisite cash deposit [Rule 57.12]; Attachment was improperly or irregularly issued [Rule 57.13] as where there is no ground for attachment, or affidavit and/or bond filed therefore are defective or insufficient; Attachment is excessive but the discharge shall be limited to the excess [Rule 57.13]; Property attached is exempt from execution [Rules 57.2 and 57.5]; Judgment is rendered against the attaching creditor [Rule 57.19].

g. Satisfaction of judgment out of property attached


Improper, Irregular or Excessive Attachment (Asked in the 2008 bar exam) An application for damages must be filed before the trial, or before appeal is perfected, or before the judgment becomes executory.

A TRO is issued in order to preserve the status quo until the hearing of the application for preliminary injunction. (Bacolod City Water v. Labayen 446 SCRA 110) Same requirements preliminary injunction. for application as

An application for a TRO shall be acted upon only after all parties are heard in a summary hearing, which shall be conducted within 24

REMEDIAL LAW REVIEWER


hours after the sheriff's return of service and/or the records are received by the branch selected by raffle. [Rule 58.4] Status Quo Order vs. Injunction (Asked in the 2006 bar exams) A status quo order is in the nature of a cease and desist order. It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a temporary restraining order. It does NOT direct the doing or undoing of acts but is an order to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy. General rule: TRO is effective only for a period of 20 days from service on the party or person sought to be enjoined Exceptions: If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury: effective for only 72 hours from issuance Issued by: RTC CA SC Effectivity: 20 days, non-extendible (including the original 72 hours) May be effective for 60 days from service on the party or person sought to be enjoined. May be effective until further orders

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b. Requisites
Requirements for preliminary injunction [Rule 58.4] There must be a verified application The application must show facts entitling the applicant to the relief demanded. - It must establish he has a right and the act against which the injunction is directed is violative of such right (PNB v Timbol 451 SCRA 163) A bond must be filed, unless exempted, in the court where the action/proceeding is pending, in an amount to be fixed by the court (asked in the 2006 Bar exam) Prior notice and hearing for the party/person sought to be enjoined. EXCEPTIONS: - Great or irreparable injury would result to the applicant before the matter can be heard on notice. o The court may issue a TRO effective for 20 days from service on the party sought to be enjoined. o Injury is irreparable if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy. - Matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury o Judge may issue ex parte a TRO effective for 72 hours from issuance. o Within 72 hours, judge shall conduct a summary hearing to determine whether the TRO shall be extended until the application for preliminary injunction can be heard. o Maximum period of effectivity of TRO=20 days (including 72 hrs) If the application for preliminary injunction is denied or not resolved within said period, the TRO is deemed automatically vacated. EFFECTIVITY OF TRO [58.5]

c. Kinds of Injunction
i. Preliminary preventive injunction prohibits the performance of a particular act or acts When preventive injunction does not lie: To restrain collection of taxes (Valley Trading vs CA), EXCEPT where there are special circumstances that bear the existence of irreparable injury. [Churchill & Tait vs Rafferty (1915)] To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husbands obligation to give support. [Saavedra vs Estrada (1931)] To restrain a mayor proclaimed as duly elected from assuming his office. [Cereno vs Dictado (1988)] To restrain registered owners of the property from selling, disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. [Tayag vs. Lacson (2004)] Against consummated acts. [PNB vs Adi; Rivera v. Florendo, 1986; Ramos, Sr. v. CA, 1989; Zabal vs CA] EXCEPTION: If the act is of continuing nature and in derogation of plaintiffs right at the outset. Against disposing of the case on the merits [Ortigas and Company Limited Partnership vs CA (1988)] To stop the execution of judgment where the judgment was already executed. (Meneses vs Dinglasan) EXCEPTION: But where the lower court enforced its judgment before a party against whom the execution was enforced could elevate her appeal in an injunction suit, which was instituted to prevent said execution, an independent petition for injunction in the Court of Appeals is justified. [Manila Surety and Fidelity vs Teodoro (1967)] The CFI has no power to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission. [Ambrosio vs Salvador (1978)]

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Transfer of possession of property to party with disputed legal title via preliminary injunction utilization, exploration, and/or development of the natural resources of the Philippines. Sec. 2, PD 385: no restraining order, temporary or permanent injunction shall be issued by the court against any government financial institution in any action taken by such institution in compliance with the mandatory foreclosure whether such restraining order, temporary or permanent injunction is sought by the borrower(s) or any third party or parties, except after due hearing in which it is established by the borrower and admitted by the government financial institution concerned that twenty percent (20%) of the outstanding arrearages has been paid after the filing of foreclosure proceedings. ii. Preliminary mandatory injunction requires the performance of a particular act or acts Requisites of mandatory injunction: Invasion of the right is material and substantial Right of the complainant is clear and unmistakable Urgent and paramount necessity for the writ to prevent serious damages [Bautista v. Barcelona, 100 Phil 1078] The effect would not be to create a new relation between the parties [Alvaro v. Zapata, (1982)] Mandatory injunction does not lie in the following instances: to compel cohabitation [Arroyo v. Vasquez (1921)] cancellation of attachment [Levy Hermanos v. Lacson (1940)] release imported goods pending hearing before the Commissioner of Customs. [Commissioner of Customs v. Cloribel (1967)] to take property out of the possession or control of one party and place it into that of another whose title has not clearly been established [Pio v. Marcos (1974)] INJUNCTION Generally directed against a party in the action Does not involve courts jurisdiction the PROHIBITION Directed against a court/tribunal/person exercising judicial powers may be on the ground that the court against whom the writ is sought acted without/in excess of jurisdiction Always a main action

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EXCEPTIONS: Forcible entry and unlawful detainer cases in which the court may issue preliminary mandatory injunction [Rule 70.15] Property covered by Torrens Title when there is a clear finding of ownership and possession of the land. (GSIS vs Florendo) Other instances where writ is not available: Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts: - Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; - Bidding or awarding of contract/ project of the national government as defined under Section 2 - Commencement prosecution, execution, implementation, operation of any such contract or project; - Termination or rescission of any such contract/project; and - The undertaking or authorization of any other lawful activity necessary for such contract/project. This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. This prohibition shall NOT APPLY when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. Sec. 78, RA 9136: the implementation of the provisions of the Electric Power Industry Reform Act of 2001 shall not be restrained or enjoined except by an order issued by the Supreme Court. Sec. 1, PD 605: no court of the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction or preliminary mandatory injunction in any case involving or growing out of the issuance, approval or disapproval, revocation or suspension of, or any action whatsoever by the proper administrative official or body on concessions, licenses, permits, patents, or public grants of any kind in connection with the disposition, exploitation,

May be the main action itself, or just a provisional remedy in the main action

d. When writ may be issued e. Grounds for issuance injunction [Rule 58.3]
(ASKED IN THE 2006 BAR EXAM)

of

preliminary

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Applicant is entitled to the relief demanded, and the relief consists in - restraining the commission or continuance of the acts or acts complained of, or - in requiring performance of an act or acts; Commission, continuance or non-performance of the acts complained of during the litigation would probably work injustice to the applicant; or 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. Rule 58 Provides for both a Main Action for Injunction and an Ancillary Writ of Preliminary Injunction (Asked in the 2006 Bar Exam) INJUNCTION Main action PRELIMINARY INJUNCTION Ancillary; exists only as part or incident of an independent action or proceeding sole object of which is to preserve the status quo until the merits can be heard based solely on initial and incomplete evidence If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. Global Injunction of a Foreign Court (Asked in the 2007 Bar Exam) A global injunction issued by a foreign court to prevent dissipation of funds against the defendant who has assets in the Philippines may be enforced in our jurisdiction, subject to our procedural laws (Suggested Answers to the 2007 Bar Exam, UP Law Center) As a general rule, no sovereign is bound to give effect within its dominion to a judgment or order of a tribunal of another country. However, under the rules of comity, utility and convenience, nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries. [St. Aviation Services vs. Grand International Airways (2006)] Note: In Pangalangan and Coquias book on Conflict of Laws (2000), citing Cheshire, it was stated that an interlocutory or provisional judgment of a foreign court, creates no obligation on the forum court to enforce it.

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seeks a embodying injunction

judgment a final

Based on all evidence gathered by court to determine main action

As a matter of course, in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue. The evidence needed to establish the requisites for a preliminary injunction need not be conclusive or complete. It is generally based on initial, incomplete evidence that gives the court an idea of the justification for the preliminary injunction pending the decision of the case on the merits. . NOTE: It does not necessarily proceed that when a writ of preliminary injunction is issued, a final injunction will follow [Urbanes vs. CA (2001)]

h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects
Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts: Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof; Commencement prosecution, execution, implementation, operation of any such contract or project; Termination or rescission of any such contract/project; and The undertaking or authorization of any other lawful activity necessary for such contract/project. This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. This prohibition shall NOT APPLY when the matter is of extreme urgency involving a

f. Grounds for objection to, or for the dissolution of injunction or restraining order
Grounds for Objection to/Motion for Dissolution of Injunction/Restraining Order [Rule 58.6] Insufficiency of application other grounds (e.g. applicants bond is insufficient/defective), upon affidavits of the party or person enjoined if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof would cause irreparable damage to the party/person enjoined, while the applicant can be fully compensated for such damages as he may suffer, provided the former files a bond

REMEDIAL LAW REVIEWER


constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. judgment, or otherwise to carry the judgment into effect; Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. [Rule 59.1] Specific situations when a receiver may be appointed If a spouse without just cause abandons the other or fails to comply with his/her obligations to the family, the aggrieved spouse may petition the court for receivership. [Family Code, Article 101] The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. [Rule 39.41] After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. [Rule 41.9; Acua v. Caluag (1957)] After final judgment, a receiver may be appointed as an aid to the execution of judgment. [Philippine Trust Company v. Santamaria (1929)] Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances, as when it is reasonably necessary to secure and protect the rights of the real owner. [Dolar v. Sundiam (1971)] Alcantara v. Abbas (1963): The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. Abrigo v. Kayanan (1983): A clerk of court should not be appointed as a receiver as he is already burdened with his official duties.

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5. Receivership (Asked in the 2001 Bar Exam)


Nature Receiver: person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation, if it were left in the possession of any of the parties. Purpose: The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied. The receivership under Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under banking laws and other rules or laws. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation. Receivership under Rule 59 is ancillary to the main action. (Riano). Commodities Storage v. CA (1997): The guiding principle is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted. Arranza v. B.F. Homes (2000): Receivership is aimed at the preservation of, and at making more secure, existing rights; it cannot be used as an instrument for the destruction of those rights.

a. Cases when receiver may be appointed


When it appears from the verified application and other proof that the applicant has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the

b. Requisites c. Requirements before issuance of an Order


Requisites and Procedure Verified application filed by the party requesting for the appointment of the receiver; Applicant must have an interest in the property or funds subject of the action; Applicant must show that the property or funds is in danger of being lost, wasted, or dissipated; Application must be with notice and must be set for hearing; Before appointing a receiver, the court shall require applicant to post a bond in favor of the adverse party. When the receiver is appointed, the receiver shall file a bond then take his oath. Before entering upon his duties, the receiver must be sworn to perform his duties faithfully.

REMEDIAL LAW REVIEWER


Who appoints receiver court where the action is pending CA SC During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin. [Rule 59.1] Denial of application or discharge of receiver If the appointment sought or granted is without sufficient cause Adverse party files a sufficient bond to answer for damages [Rule 59.3] Bond posted by the applicant for grant of receivership is insufficient Bond of receiver is insufficient notice to all interested parties and hearing [Rule 59.8] Effect: Settle accounts of receiver Delivery of funds to person entitled Discharge of receiver Receiver entitled to reasonable compensation to be taxed as costs against defeated party.

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6. Replevin (Asked in the 1999 Bar Exam)


a. When may writ be issued
Nature Replevin may be a main action or provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. Used in this sense, it is considered as a suit in itself. Replevin under Rule 60 is the provisional remedy. [Riano] REPLEVIN Available only where the principal relief sought in the action is recovery of personal property, the other reliefs (e.g. damages) being merely incidental thereto. Can be sought only where the defendant is in actual or constructive possession of the personalty involved. Extends only to personal property capable of manual delivery. Available to recover personal property even if the same is not concealed, removed or disposed of. PRELIMINARY ATTACHMENT Available even if the recovery of personal property is only an incidental relief sought in the action. May be resorted to even if the personalty is in the custody of a third person. Extends to all kinds of property, whether real, personal or incorporeal. To recover the possession of personal property unjustly detained (presupposed that the same is being concealed, removed or disposed of to prevent its being found or taken by the applicant. Can still be resorted to even if the property is in custodia legis.

d. Powers of a receiver
Bring and defend in such capacity actions in his own name with leave of court 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 the receiver Compound for and compromise the same Make transfers Pay outstanding debts Divide the money and other property that shall remain among the persons legally entitled to receive the same Generally, to do such acts respecting the property as the court may authorize Invest funds in his hands, ONLY by order of the court upon the written consent of all the parties. [Rule 59.6] No action may be filed against a receiver without leave of the court which appointed him. Liability for refusal or neglect to deliver property to receiver Contempt; and Be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. [Rule 59.7]

e. Two (2) kinds of bond


Applicants bond Receivers bond

Cannot be availed of if the property is in custodia legis (e.g. under attachment, seized under a search warrant). EXCEPT: when the seizure is illegal; [Bagalihog v. Fernandez (1991)] and where there is reason to believe that the seizure will not anymore be

f. Termination of receivership
Ground: the necessity for a receiver no longer exists Procedure: motu proprio or on motion of either party

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followed by the filing of the criminal action in court or there are conflicting claims. [Chua v. CA (1993)] A writ of replevin may be served anywhere in the Philippines.

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d. Sheriffs duty in the implementation of the writ; when property is claimed by third party
Disposition of Property by Sheriff The sheriff shall retain the property for 5 days. The adverse party may object to the sufficiency of the bond or surety or he may file a redelivery bond. If after 5 days and the adverse party failed to object or his redelivery bond is insufficient, the sheriff shall deliver the property to the applicant. [Rule 60.6] The defendant is entitled to the return of the property under a writ of replevin if: - He seasonably posts a redelivery bond [Rule 60.5] - Plaintiffs bond is found to be insufficient or defective and is not replaced with proper bond - Property is not delivered to the plaintiff for any reason [Rule 60.6] Where Property Claimed by Third Person When third party claims the property and such person makes affidavit of his title thereto stating his grounds, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy upon the applicant, the sheriff SHALL NOT BE BOUND to keep property under replevin or deliver property to the applicant UNLESS the applicant files a bond approved by the court in favor of the third person (the bond should not be less than the value of stated under Sec. 60.2; the court shall determine the value in case of disagreement). No claim for damages for the taking or keeping of the property may be enforced against the bond UNLESS the action is filed within 120 days from filing of the bond.

b. Requisites
Application Who may apply: party praying for the recovery of possession of personal property. Applicant need not be the owner. It is enough that he has right to its possession. (Yang vs Valdez, 177 SCRA 141) When: at the commencement of the action or before the answer [unlike attachment, injunction and support pendente lite (anytime before final judgment) and receivership (anytime even after final judgment)]. The applicant must show by his own affidavit or that of some other person who personally knows the facts: That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and The actual market value of the property. [Rule 60.2] Bond The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit. [Rule 60.2]

XIX. SPECIAL CIVIL ACTIONS


1. Nature of special civil actions 2. Ordinary civil actions versus special civil actions 3. Jurisdiction and venue 4. Interpleader 5. Declaratory Reliefs and Similar Remedies 6. Review of Judgments and Final Orders or Resolution of the COMELEC and COA 7. Certiorari, Prohibition and Mandamus 8. Quo Warranto 9. Expropriation 10. Foreclosure of Real Estate Mortgage 11. Partition 12. Forcible Entry and Unlawful Detainer 13. Contempt

c. Affidavit and bond; Redelivery Bond


Please refer to immediately preceding subsection for discussion on affidavit and bond. Redelivery bond: The adverse party may, at any time before the delivery of the property to the applicant, require the return of the property by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicants affidavit. [Rule 60.5] Order of Replevin Upon the filing of affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. [Rule 60.3]

1. Nature of special civil actions

REMEDIAL LAW REVIEWER


Rules on ordinary civil actions shall apply to special civil actions insofar as they are not inconsistent with or may supplement the rules governing the latter. [Rule 1.3] Since a civil action in general is one by which a party sues another for the enforcement of a right, or the prevention or redress of a wrong, a special civil action is generally brought or filed for the same purpose. [Riano] How commenced: COMPLAINT - interpleader - expropriation - foreclosure of real estate mortgage - partition - forcible entry and unlawful detainer PETITION - declaratory relief - review of adjudications of Constitutional commissions - certiorari - prohibition - mandamus - quo warranto - contempt Writs of injunction, mandamus, certiorari, prohibition, quo warranto and habeas corpus issued by RTCs are enforceable within their respective judicial regions. [B.P. 129] 3 special civil actions within the jurisdiction of inferior courts: interpleader, provided the amount involved is within its jurisdiction [Makati Development Corp. v. Tanjuatco (1969)] ejectment suits [Rule 70] contempt [Rule 71]

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4. Interpleader
Definition: A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment or the obligation [Beltran v. PHHC, 1969] Purpose To compel conflicting claimants to interplead and litigate their several claims among themselves. [Rule 62.1] To protect a person against double vexation in respect of one liability [Beltran, supra]

a. Requisites for interpleader


There must be two or more claimants with adverse or conflicting interests to a property in the custody or possession of the plaintiff. The plaintiff has NO CLAIM upon the subject matter of the adverse claims, or if he has an interest at all, such interest is NOT DISPUTED by the claimants. The subject matter of the adverse claims must be one and the same. Procedure Complaint filed by the person against whom conflicting claims are or may be made. [ibid] The docket and other lawful fees paid by the complainant, and costs and litigation expenses shall constitute a lien or charge upon the subject matter of the action, unless otherwise ordered by the court. [R62.7] Court order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct that the subject matter be paid or delivered to the court. [Rule 62.2] Summons, copy of complaint and order served upon the conflicting claimants. [Rule 62.3] Each claimant shall file his answer within 15 days from service of the summons, serving a copy thereof upon each of the other conflicting claimants, who may file their reply thereto. If claimant fails to plead within the time herein

2. Ordinary civil special civil actions

actions

versus

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. [Riano] Ordinary Civil Action Governed by ordinary rules Special Civil Action Also governed by ordinary rules but subject to specifically prescribed rules (Rules 62 to 71)

Some concepts applicable to ordinary civil actions are not applicable in special civil actions. E.g.: the definition of a cause of action requiring violation of a right does not appear to be relevant to the special civil action of declaratory relief and interpleader; ordinary civil actions may be filed initially in MTC or RTC depending on jurisdictional amount while some special civil actions can only be filed in MTC (forcible entry and unlawful detainer) and some cannot be commenced in MTC (certiorari, prohibition, mandamus). [Riano]

3. Jurisdiction and venue


Venue is governed by the general rules on venue, except as otherwise indicated in the particular rules for special civil actions.

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fixed, the court may, on motion, declare him in default and render judgment barring him from any claim in respect to the subject matter. Within the time for filing an answer, each claimant may file a motion to dismiss. Grounds: impropriety of the interpleader action, or other appropriate grounds specified in Rule 16 The period to file the answer shall be tolled. If the motion is denied, an answer may be filed within the remaining period, in no case less than 5 days (reckoned from notice of denial) [Rule 62.4]. The parties may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto. [Rule 62.5] Pre-trial Court shall determine conflicting claimants respective rights and adjudicate their several claims. [Rule 62.6] Validity of a local government ordinance Constitutionality of a local government ordinance Prosecutor or attorney of the LGU Sol Gen

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Baguio Citizens Action vs. City Council of Baguio (1983): Non-joinder of interested persons is not a jurisdictional defect; but persons not joined shall not be prejudiced in their interests unless otherwise provided by the Rules. Commission of Customs vs. Cloribel (1977): A third-party complaint is not available in a declaratory relief. Visayan Packing vs. Reparations Commission (1987): A compulsory counterclaim may be set up in a petition for declaratory relief. Where filed in the proper RTC [Rule 63.1] not within the original jurisdiction of the Supreme Court, even if pure questions of law are involved. [Remotigue vs. Osmea (1967)]

b. When to file
Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest in the subject matter or an interest which is not disputed by the claimants. [Rule 62.1] Cannot be availed of to resolve the issue of breach of undertakings made by defendants, which should be resolved in an ordinary action for specific performance or other relief [Beltran, supra].

b. Requisites of action for declaratory relief


subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance [Rule 63.1]; the terms of said documents and the validity thereof are doubtful and require judicial construction [Santos v. Aquino, 94 Phil 65] no breach of the documents in question. [Reparations Commission v. Northern Lines (1970)] Otherwise, an ordinary civil action is the remedy. - Concept of a cause of action in ordinary civil actions does not apply. - If before the final termination of the case, a breach or violation of an instrument or a statute, etc. should take place, the action may be converted into an ordinary action. [Rule 63.6] actual justiciable controversy [Velarde v SJS (2004)] adverse interests between the parties - A declaratory relief is not available for a declaration of citizenship [Villa-Abrille vs. Republic (1956)] or the validity of a registration certificate [Obiles vs. Republic (1953)] as they are unilateral in nature and without conflicting adverse interests. issue must be ripe for judicial determination [Velarde v SJS (2004)] adequate relief is not available through other means or other forms of action or proceedings. [Ollada v. Central Bank (1962)] - A court decision cannot be the subject of a declaratory relief since there exists other remedies, i.e., appeal or a motion for clarificatory judgment [Tanda vs. Aldaya (1956)]

5. Declaratory Reliefs and Similar Remedies


a. Who may file the action
a person interested under a deed, will, contract or other written instrument a person whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation [Rule 63.1] Parties all persons who have or claim any interest which would be affected by the declaration [Rule 63.2] If action involves the validity of a statute/executive order/regulation/other governmental regulation, the Solicitor General shall be notified. [Rule 63.3] If action involves the validity of a local government ordinance, the prosecutor/attorney of the LGU involved shall be notified. [Rule 63.4] Subject Matter Validity of a statute, EO or regulation, or any governmental regulation Notice Given To Sol Gen

c. When court may refuse to make judicial declaration

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where a decision would not terminate the uncertainty or controversy which gave rise to the action, or where the declaration or construction is not necessary and proper under the circumstances. [Rule 63.5] from being cast upon title to real property or any interest therein. Art. 481. The procedure for the quieting of title or the removal of a cloud therefrom shall be governed by such rules of court as the Supreme Court shall promulgated.

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d. Conversion to ordinary action


Requisites: before the final termination of the case a breach or violation of an instrument or a statute, executive order or regulation, ordinance, or any other governmental regulation should take place Effect: The parties shall be allowed to file such pleadings as may be necessary or proper. [Rule 63.6]

6. Review of Judgments and Final Orders or Resolution of the COMELEC and COA
Scope Applicable only to judgments and final orders of the COMELEC and COA [Rule 64.1] Judgments/orders of the Civil Service Commission are now reviewable by the Court of Appeals under Rule 43, eliminating recourse to the Supreme Court (SC). [RA 7902; SC Revised Administrative Circular No. 1-95] An aggrieved party may bring the questioned judgment, etc. directly to the SC on certiorari under Rule 65. [Rule 64.2] Such petition for certiorari shall not stay the execution of the judgment, etc. sought to be reviewed unless otherwise directed by the Supreme Court [Rule 64.8] Procedure File a petition for review. When [Rule 64.3]: Within 30 days from notice of judgment/final order/resolution sought to be reviewed Filing of motion for reconsideration/new trial with Constitutional commission interrupts the 30-day period. If motion is denied, aggrieved party may file petition within remaining period, which shall not be less than 5 days from notice of denial. Form [Rule 64.5]: verified and accompanied by (annexes): a clearly legible duplicate original or certified true copy of the subject judgment, etc. certified true copies of such material portions of the record referred to in the petition other documents relevant and pertinent to the petition proof of service of a copy of the petition on the Commission and the adverse party proof of the timely payment of the docket and other lawful fees in 18 legible copies (containing plain copies of all documents attached to the original copy of the petition) Contents [Rule 64.5]: name of aggrieved party (petitioner) respondents: Commission concerned and person(s) interested in sustaining the judgment a quo facts issues involved grounds and brief arguments relied upon for

e. Proceedings remedies

considered

as

similar

i. Reformation of an instrument (Arts. 1359-1369 Civil Code) Definition: Art. 1359. When, there having been a meeting of the minds of the parties to a contract, their true intention is not expressed in the instrument purporting to embody the agreement, by reason of mistake, fraud, inequitable conduct or accident, one of the parties may ask for the reformation of the instrument to the end that such true intention may be expressed. If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the parties, the proper remedy is not reformation of the instrument but annulment of the contract. Art. 1369. The procedure for the reformation of instrument shall be governed by rules of court to be promulgated by the Supreme Court ii. Consolidation of ownership (Art. 1607 Civil Code) [Rule 63.1 par. 2] Definition: Art. 1607. In case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. iii. Quieting of title to real property (Arts. 476-481 Civil Code) Definition: Art. 476. Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud

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review prayer for judgment annulling or modifying the question judgment, etc. material dates showing that it was filed on time certification against non-forum shopping Findings of fact of the Commission supported by substantial evidence shall be final and nonreviewable. Failure to comply with foregoing requirements shall be sufficient ground for dismissal. Order to Comment [Rule 64.6] If the SC finds the petition sufficient in form and substance, it shall order the respondents to file their comments on the petition within 10 days from notice thereof. Grounds for dismissal: Petition not sufficient in form and substance Petition was filed manifestly for delay the questions raised are too unsubstantial to warrant further proceedings. Comments of Respondents [Rule 64.7] Requirements: original copy with certified true copies of material portions of the record as are referred to in the comment and certified true copies of other supporting papers 18 legible copies with plain copies of all documents attached to the original Copy of the comment shall be served on the petitioner. Decision [Rule 64.9] Case is deemed submitted for decision upon: filing of the comments on the petition, and such other pleadings or papers as may be required or allowed. expiration of the period to file the pleadings. Exceptions: SC sets the case for oral argument or requires parties to submit memoranda. is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days reckoned from the notice of denial.

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7. Certiorari, Mandamus

Prohibition

and

The original action of certiorari is not a substitute for appeal. [Lobite vs. Sundiam 1983] Exceptions: appeal is not a speedy and adequate remedy [Salvadores vs. Pajarillo (1947)] the orders were issued either in excess of or without jurisdiction [Aguilar vs. Tan (1970)] special considerations, i.e., public welfare or public policy [Jose vs. Zulueta (1961)] the order is a patent nullity [Marcelo vs. De Guzman (1982)] the decision in the certiorari case will avoid future litigations [St. Peter Memorial Park vs. Campos (1975)] NOTE: In the 2005 and 2008 Bar Exams, bar examinees were asked to compare Petition for review on Certiorari and Certiorari. Certiorari Suarez v. NLRC (1998): Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts may be considered. Medran vs. CA (1949): Findings of fact of CA are not binding upon SC in an original action for certiorari. Prohibition Prohibition is a preventive remedy. However, to prevent the respondent from performing the act sought to be prevented during the pendency of the proceedings for the writ, the petitioner should obtain a restraining order and/or writ of preliminary injuction. [Regalado] Enriquez v. Macadaeg, 84 Phil 674: Prohibition is the remedy where a motion to dismiss is improperly denied. Mandamus A writ of mandamus will not issue to control the exercise of official discretion or judgment, or to alter or review the action taken in the proper exercise of the discretion of judgment, for the writ cannot be used as a writ of error or other mode of direct review. However, in extreme situations generally in criminal cases, mandamus lies to compel the performance of the fiscal of discretionary functions where his actuations are tantamount to a wilful refusal to perform a required duty. [Regalado]

a. Application of Rule 65 under Rule 64 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
Rule 64 Directed only to the judgments, final orders or resolutions of COMELEC and COA Filed within 30 days from notice of the judgment The filing of a MR or a Motion for New Trial if allowed, interrupts the period for the filing of the petition for certiorari. If the motion Rule 65 Directed to any tribunal, board, or officer exercising judicial or quasi-judicial functions Filed within 60 days from notice of the judgment The period within which to file the petition if the MR or new trial is denied, is 60 days from notice of the denial of the motion.

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General rule: In the performance of an official duty or act involving discretion, such official can only be directed by mandamus to act but not to act in one way or the other. EXCEPTION: gross abuse of discretion, manifest injustice, palpable excess of authority [Kant Wong v. PCGG (1987)] Mandamus can be availed of only by the party who has direct legal interest in the right sought to be enforced. HOWEVER, if the question is one of public right, it is sufficient to show that the petitioner is a citizen. [Tanada v. Tuvera (1985)] JUDGMENT If after such hearing or submission of memoranda or the expiration of the period for the filing thereof, the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled. The court, however, may dismiss the petition if it finds the same to be (1) patently without merit, (2) prosecuted manifestly for delay, or that (3) the questions raised therein are too unsubstantial to require consideration. [Rule 65.8] SERVICE AND ENFORCEMENT OF ORDER OR JUDGMENT A certified copy of the judgment rendered shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39. [Rule 65.9]

179

a. Definitions and distinctions b. Requisites c. When petition for certiorari, prohibition and mandamus is proper
See Annex F. Procedure FILE PETITION FOR CERTIORARI / PROHIBITION / MANDAMUS. When filed: Not later than 60 days from notice of judgment/order/resolution If a motion for reconsideration/new trial is filed, the 60-day period shall be counted from notice of denial of motion. Extension may be granted for compelling reasons, not exceeding 15 days. [Rule 65.4] Where filed: Supreme Court Court of Appeals - If it involves the acts of a quasi-judicial agency, the petition shall be filed only in the CA, unless otherwise provided by law or the Rules. Regional Trial Court, if it relates to acts / omissions of a lower court / corporation / board / officer / person. Sandiganbayan, if it is in aid of its appellate jurisdiction. [Rule 65.4] ORDER TO COMMENT If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent(s) to comment on the petition within 10 days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. [Rule 65.6] HEARING OR MEMORANDA After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. [Rule 65.8]

d. Injunctive relief
Rule 65.7 provides for the issuance of a temporary restraining order, and not only for a writ of preliminary injunction, but such order shall be subject to the rules on the grounds and duration thereof. [Regalado]

e. Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus distinguished from Injunction; when and where to file petition
CERTIORARI DISTINGUISHED FROM APPEAL CERTIORARI APPEAL Proper to correct errors Proper where error is not of jurisdiction one of jurisdiction but an committed by lower error of law or fact courts, grave abuse of which is a mistake of discretion which is judgment tantamount to lack of jurisdiction Certiorari invokes Appeal when filed original jurisdiction of invokes the appellate the court jurisdiction of the court Within 60 days from Filed within period of notice of judgment, appeal order or resolution An original and Continuation of the independent action original case Impleads the tribunal, Parties to an appeal are court, board or officer the original parties of the case PROHIBITION DISTINGUISHED FROM INJUNCTION PROHIBITION INJUNCTION Directed to the court or Directed against a party tribunal directing it to to the action

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refrain from the performance of acts which it has no jurisdiction to perform MANDAMUS DISTINGUISHED FROM INJUNCTION MANDAMUS INJUNCTION Special civil action Ordinary civil action Directed against a Directed against a tribunal, corporation litigant board or officer Purpose is for the Purpose is for the tribunal, corporation, defendant either to board or officer to refrain from an act or to perform a ministerial perform not necessarily a and legal duty legal and ministerial duty Purpose is to perform a Purpose is to prevent an positive legal duty and act to maintain the not to undo what has status quo between the been done parties Quo warranto is the remedy to try disputes with respect to the title to a public office.

180

a. Distinguish from Quo Warranto in the Omnibus Election Code

Filed by whom Where filed

ROC Rule 66 Solicitor General or Public Prosecutor in behalf of the Republic; Individual By SolGen: RTC Manila, CA or SC; Otherwise, RTC with jurisdiction over territorial area where respondent resides, CA or SC

OEC Sec. 253 Any voter

COMELEC, if against election of a Member of Congress, Regional, Provincial or City Officer; appropriate RTC or MTC, if against a municipal or barangay officer Within 10 days after proclamation of results Ineligibility disloyalty to Republic or the

f. Exceptions to filing of motion reconsideration before filing petition

for
Period for filing Against whom, grounds Within 1 year from ouster, or from the time the right to the position arose 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 provision of law, constitutes a ground for forfeiture of office How commenced By a verified petition [Rule 66.1] By whom/against whom

General rule: A motion for reconsideration must first be availed of before certiorari to enable the lower court to correct its mistakes without the intervention of the lower courts. [BA Finance vs. Pineda (1982)] Exceptions: the order is a patent nullity [Vigan Elec. Light vs. Public Service Commission (1964)] the questions raised in the certiorari have been duly raised and passed upon by the lower court [Fortich-Celdran vs. Celdran (1967)] or are the same as those raised and passed upon in the lower court [Pajo vs. Ago (1960)] there is an urgent necessity for the resolution of the question and delay would prejudice the interests of the government [Vivo vs.Cloribel (1966)] the MR would be useless [People vs. Palacio (1960)] the petitioner was deprived of due process and there is extreme urgency for relief [Luzon Surety vs. Marbella (1960)] the proceeding was ex parte in which the petitioner had no opportunity to object [Republic vs. Maglanoc (1963)] the issue raised is purely a question of law or where the public interest is involved [PALEA vs. PAL (1982)]

b. When the government commences an action against individuals


By Government, brought in the name of the Republic of the Philippines, against: - A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise - A public officer who does not or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office - An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act [Rule 66.1] When Solicitor General or public prosecutor MUST commence action:

g. Reliefs petitioner is entitled to h. Actions/Omissions of MTC/RTC in election cases i. Where to file petition j. Effects of filing of an unmeritorious petition

8. Quo Warranto

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- When directed by the President of the Philippines. - When upon complaint or otherwise, he has good reason to believe that any case specified in Sec. 1 can be established by proof. [Rule 66.2] When Solicitor General or public prosecutor MAY commence action: - with permission of the court - at the request and upon the relation of another person - Officer bringing such action may first require an indemnity for the expenses and costs of the action in an amount approved by and deposited in court. [Rule 66.3] The complaint shall join as defendants all persons owning or claiming to own, or occupying any part thereof or any interest therein, showing as far as practicable the separate interest of each defendant. The following must be clearly stated in the complaint , if applicable: - If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals; - If the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners. [Rule 67.1]

181

c. When individual may commence an action


By a person claiming to be entitled to a public office or position, brought in his own name, against another who usurped or unlawfully held or exercised such public office or position [Rule 66.5]

b. Two stages expropriation

in

every

action

for

i. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts. This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. These orders are final and therefore appealable. [Municipality of Bian v. Garcia (1989)] It includes an inquiry into the propriety of the expropriation its necessity and public purpose. [Riano] ii. Determination of just compensation. This is done with the assistance of not more than three (3) commissioners. The order fixing just compensation is also final and appealable (Ibid). Just compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint, whichever comes first. Ansaldo v. Tantuico (1990): There is taking when the owner is actually deprived or dispossessed of his property; when there is a practical destruction or a material impairment of the value of his property or when he is deprived of the ordinary use thereof. Bardillon v. Bgy. Masili (2003): An expropriation suit is incapable of pecuniary estimation. Accordingly, it falls within the jurisdiction of RTCs, regardless of the value of the subject property.

d. Judgment in Quo Warranto action


When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position, or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator recover his costs. [Rule 66.9]

e. Rights of a person adjudged entitled to public office


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, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondent's custody or control appertaining to the office to which the judgment relates. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation. [Rule 66.10]

9. Expropriation
a. Matters to expropriation allege in complaint for

The complaint for expropriation must be VERIFIED. Contents: The right and purpose of expropriation Description of the real or personal property sought to be expropriated;

c. When plaintiff can immediately enter into possession of the real property, in relation to RA 8974
Sec. 4. of RA 8974 otherwise known as An Act to facilitate the acquisition of right-of-way, site or location for national government infrastructure projects and for the purposes: [w]henever it is necessary to acquire real property for the right-of-

REMEDIAL LAW REVIEWER


way or location for any national government infrastructure project through expropriation, the appropriate implementing agency shall initiate the expropriation proceedings before the proper court under the following guidelines: Upon 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% of the value of the property based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the value of the improvements and/or structures as determined under Section 7 hereof; In provinces, cities, municipalities and other areas where there is no zonal valuation, the BIR is hereby mandated within the period of sixty (60) days from the date of the expropriation case, to come up with a zonal valuation for said area; and In case the completion of a government infrastructure project is of utmost urgency and importance, and there is no existing valuation of the area concerned, the implementing agency shall immediately pay the owner of the property its proffered value taking into consideration the standards prescribed in Section 5 hereof. Upon compliance with the guidelines abovementioned, the court shall immediately issue to the implementing agency an order to take possession of the property and start the implementation of the project. Riano opines that Sec. 2 of Rule 67 is deemed modified by RA 8974. He noted the following differences: Rule 67 Before issuance of writ of possession Expropriation proceedings initiated by the national government Initial deposit with an authorized government depositary Amount for deposit equivalent to 100% assessed value of the property for purposes of taxation. RA 8974 Upon filing of the complaint Right-of-way, site or location of national government infrastructure projects Immediate payment to the property owner Amount to be paid is: 100% of the value of the land as stated in the tax declaration or current zonal valuation, whichever is higher, and the value of improvements, OR in the case of utmost urgency, the proffered value of the property to be seized See table of comparison under the preceding subsection, column of RA 8974.

182

e. Defenses and objections


NO OBJECTION OR HAS OBJECTION DEFENSE TO THE OR DEFENSE TO TAKING THE TAKING Notice of Answer to the appearance and complaint manifestation Time stated in the summons Manifestation to the effect that he has no objection or defense; Specifically designating/identif ying the property in which he claims to be interested Specifically designating/identif ying the property in which he claims to have an interest in and the nature and extent of the interest; ALL his objections and defenses to the complaint or any allegation therein Counterclaim, cross-claim, third party complaint in any pleading

What to file and serve Period to file Contents

Prohibit ed

A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. A defendant waives all defenses and objections not so alleged, but the court, in the interest of justice, may permit amendments to the answer not to be made later than ten (10) days from filing thereof. At the trial of the issue of just compensation, whether the 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. [Rule 66.3]

f. Order of Expropriation
It declares that the plaintiff has a lawful right to take the property sought to be expropriated for the public use or purpose described in the complaint, upon payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint whichever is earlier. It is issued by the court in which the complaint for expropriation is filed when:

d. New system of immediate payment of initial just compensation

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objections or defenses of the defendant have been overruled, or the defendant raised no such defense or objection, or No party appears to defend. [Rule 67.4] EXCEPTION: when the parties agree otherwise, the commissioners cannot view and examine the property - The commissioners shall assess the consequential damages to the property taken and deduct from such consequential damages the consequential benefits derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or person taking the property. - In no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. [Rule 67.6] The commissioners shall make full and accurate report to the court of all their proceedings. - The report shall be filed within 60 days from the date the commissioners were notified of their appointment. - Upon filing of the report, the clerk of 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 the parties desire. [Rule 67.7] After the 10-day period for objecting to the commissioners report, the court, after hearing, may: - ACCEPT the report and render JUDGMENT in accordance therewith; - RECOMMIT the report to the commissioners for further report of facts; - SET ASIDE the report and APPOINT new commissioners; - ACCEPT the report IN PART and REJECT it IN PART; And make such order or render judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation and to the defendant just compensation for the property so taken. [Rule 67.8]

183

g. Ascertainment of just compensation


Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. Determined as of the date of taking of the property, or the filing of the complaint, whichever came first. [Rule 67.4] The measure is not the takers gain, but the owners loss. To compensate is to render something which is equal in value to that taken or received. The word just is used to intensify the meaning of the word compensation; to convey the idea that the equivalent to be rendered for the property taken shall be real, substantial, full, and ample. In eminent domain or expropriation proceedings, the general rule is that the just compensation which the owner of condemned property is entitled to is the market value. Market value is that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefore. [BPI v. CA (2004)] Upon the rendition of the order of expropriation, the court shall appoint not more than 3 competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. [Rule 67.5]

h. Appointment of Commissioners; Commissioners report; Court action upon commissioners report


Order of appointment to be served on the parties. Objections to the appointment of any of the commissioners shall be filed in court within ten (10) days, and shall be resolved within thirty (30) days after all the commissioners have received copies of the objections. Powers and duties of commissioners: Parties can present evidence before the commissioners and the latter have the power to administer oaths or hearings before them; They can, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings and may measure the same;

i. Rights of plaintiff upon judgment and payment


Right to enter upon the property expropriated and appropriate it for the public use or purpose as stated. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under Sec. 2. [Rule 67.10] Right to enter upon the property even pending appeal. The right of the plaintiff to enter upon the property of the defendant and appropriate

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the same for public use or purpose shall not be delayed by an appeal from the judgment.

184

The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. [Rule 67.13]

b. Sale of mortgaged property; effect


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 execution. - It is the ministerial duty of the court to order the foreclosure of the property when the debt is not paid within the period specified. - A motion for such order of sale is non-litigable and may be made ex parte. [Govt of P.I. v De las Cajigas, 55 Phil 667] Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and When confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. POSSESSION: Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property, unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure. [Rule 68.3] The purchaser is entitled to a writ of possession and it is ministerial upon the court to issue a writ of possession in his favor upon an ex parte motion. [Barican, et al v Caguioa, et al, (1986)]

j. Effect of recording of judgment


When real estate is expropriated, a certified copy of the judgment entered in expropriation proceedings shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest to plaintiff the title to the real estate so described for such public use or purpose. [Rule 67.13]

10. Foreclosure of Real Estate Mortgage (Asked in the 2003 Bar Exam)
The cause of action in a foreclosure suit is generally the non-payment of the mortgage loan, but it may be on other grounds which under the contract warrant the foreclosure, such as the violation of the other conditions therein. Foreclosure may be made: judicially governed by Rule 68 Extrajudicially proper only when so provided in contracts in accordance with Act. No. 3135; governed by A.M. No. 99-10-05-0. Monte de Piedad v. Rodrigo, 56 Phil 301: A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. If a mortgage contract covers several distinct parcels of land situated in different provinces, the action may be brought in the RTC of any of the provinces and the judgment will be enforceable against any of the parcels of land involved.

c. Disposition of proceeds of sale


Claims to be satisfied by the proceeds of the public sale of mortgaged property (in order): Costs incurred in the sale of property Claim of the person foreclosing the property Claims of junior encumbrancers in the order of their priority If proceeds of the sale exceeds the cost of the sale as well as the claims of the person foreclosing the property and junior encumbrancers, if any the residual amount shall be given to the mortgagor or his agent, or to the person entitled to it. [Rule 68.4] If the proceeds of the sale is less than the amount of the claims to be satisfied, the person foreclosing the property may move for a DEFICIENCY JUDGMENT from the court confirming the foreclosure sale, to recover the amount of the deficiency in his claim.

a. Judgment on foreclosure for payment or sale


Judgment PAYMENT: If upon the trial, the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days from the entry of judgment (equity of redemption). SALE: In default of such payment the property shall be sold at public auction to satisfy the judgment. [Rule 68.2]

d. Deficiency judgment
i. Instances when court cannot render deficiency judgment

REMEDIAL LAW REVIEWER


Definition: A judgment against a debtor for the unpaid balance of the debt if a foreclosure sale or a sale of repossessed personal property fails to yield the full amount of the debt due; also termed a deficiency decree. (Blacks Law Dictionary) General rule: Sec. 6 provides for a deficiency judgment which shall be rendered, on motion, when the foreclosure sale did not produce proceeds sufficient to satisfy the judgment. In extrajudicial foreclosure, the mortgagee can also recover by action any deficiency in the mortgage account which was not realized in the foreclosure sale. [PNB v. CA (1999)] A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. [Governor of the Philippine Islands v. Torralba Vda. de Santos (1935)] If the debtor dies, the deficiency may be filed as a claim against his estate. [Rule 86.7] EXCEPTIONS: Third Party Mortgagor - No deficiency judgment may be rendered where the mortgage was executed by a third person to secure the obligation of a debtor, such third person not having assumed personal liability for the debt. The remedy is an ordinary action against the debtor. [Philippine Trust Co. v. Echaus Tan Siusa (1929)] Extrajudicial Foreclosure - There can be no deficiency judgment because there was no judicial proceeding in the foreclosure. Recovery can be made through a separate action. [DBP v Mirang (1975); DBP v Zaragosa, 1978; PNB v CA (1999)] Registration [RULE 68.7] A CERTIFIED COPY of the final order confirming the sale shall be registered in the Registry of Deeds. IF NO RIGHT OF REDEMPTION EXISTS The Certificate of Title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser. IF A RIGHT OF REDEMPTION EXISTS The Certificate of Title in the name of the mortgagor shall NOT be cancelled, but the Certificate of Sale and the order confirming the sale shall be registered and a brief memorandum thereof shall be made by the Registrar of Deeds upon the certificate of title IF THE PROPERTY IS NOT REDEEMED The FINAL Deed of Sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the Registry of Deeds. The Certificate of Title in the name of the mortgagor shall be cancelled and a new one shall be issued in the name of the purchaser.

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IF THE PROPERTY IS REDEEMED The Deed of Redemption shall be registered with the Registry of Deeds and a brief memorandum thereof shall be made by the Registrar of Deeds on said certificate of title.

f. Equity of redemption versus right of redemption


EQUITY OF REDEMPTION Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within 90 to 120 days after entry of judgment or even after the foreclosure sale but prior to its confirmation. [Limpin v. Intermediate Appellate Court (1988)] RIGHT OF REDEMPTION Right of redemption is the right granted to the debtor-mortgagor, his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person having a lien in the property subsequent to its mortgage or deed of trust, under which the property is sold, to redeem the property within 1 year from the registration of the sheriffs certificate of foreclosure sale. [De Castro v. Intermediate Appellate Court [1988)] The right of redemption in relation to a mortgage is understood in the sense of a prerogative to re-acquire mortgaged property after

e. Judicial foreclosure versus extrajudicial foreclosure


JUDICIAL FORECLOSURE Governed by the Rules of Court Involves the filing of an independent action Equity of redemption EXCEPT if the foreclosure is in favor of banks as mortgagees, a Right of redemption exists There could be a deficiency judgment EXTRAJUDICIAL FORECLOSURE Governed by Act 3135 as amended Does not require filing of an action Right of redemption

Recovery of deficiency is by mere motion for a deficiency judgment

No deficiency judgment because there is no judicial proceeding BUT deficiency can be recovered Recovery of deficiency is by an independent action

The mortgagor may exercise his equity of redemption in judicial foreclosure before the sale is confirmed by the court (Raymundo v

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EQUITY OF REDEMPTION Sunico, 1913; Rosales v Suba, 2003). No right of redemption is recognized in a judicial foreclosure, except only where the mortgagee is the Philippine National Bank or a bank or banking institution. [Huerta Alba Resort, Inc. v. CA (2000)] RIGHT OF REDEMPTION registration of the foreclosure sale. It exists only in the case of the extrajudicial foreclosure of the mortgage. unserviceable for the use for which is it intended [Art. 495 CC] or When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. [Art. 1084 CC]

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b. Matters to allege in the complaint for partition


Contents of complaint for partition Nature and extent of the complainants title Adequate description of the real estate of which the partition is demanded All other persons interested in the property must be impleaded. [Rule 69.1]

Confirmation of the sale of mortgaged real property vests title in the purchaser including the equity of redemption, it retroacts to the date of the sale. It cuts off all the rights or interests of the mortgagor and of the mortgagee. [Lozame v Amores (1985]]. The motion for the confirmation of the sale requires a hearing to grant an opportunity to the mortgagor to show cause why the sale should not be confirmed [Tiglao v Botones, 90 Phil 275], as by proof of irregularities therein or of gross inadequacy of the price. Lack of notice vitiates the confirmation of the sale.

c. Two (2) stages in every action for partition


i. Determination of the propriety of partition This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable. [Miranda v. Court of Appeals (1976)] If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed. [De Mesa v. CA (1994)] ii. The actual partitioning of the subject property This is also a complete proceeding and the order or decision is appealable. When there was a prior partition, the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition. There can be no partition again because there is no more common property. [Noceda v. CA (1999)] Crucillo v. IAC, 1999: Oral partition of land when the same is fully consummated is valid and binding upon the parties thereto. Maglucot-aw et al. v. Maglucot et al. (2000): Parties to a partition proceeding, who elected to take under partition, and who took possession of the portion allotted to them, are estopped to question title to portion allotted to another party. A person cannot claim both under and against the same instrument. In other words, they accepted the lands awarded them by its provisions, and they cannot accept the decree in part, and repudiate it in part. They must accept all or none. Parties who had received the property assigned to them are precluded from subsequently attacking its validity of any part of it. Partition may be inferred from circumstances sufficiently strong to support the presumption. Thus, after a long possession in severalty, a deed of

11. Partition
Partition of property may be: Extrajudicial by agreement Judicial compulsory; governed by Rule 69 Even if the parties resorted to judicial partition, they may still make an amicable partition of the property. [Secs. 2 and 12]

a. Who may file complaint; who should be made defendants


Filed by person having the right to compel the partition of real estate, [Sec. 1], or of personal property, or of both real and personal property. [Sec. 13] The plaintiff is the person who is supposed to be a co-owner of the property. The defendants are all the co-owners, who are indispensable parties. Sepulveda v. Pelaez (2005): All persons considered as co-owners and interested in the property to be partitioned are indispensable parties to the action and must be impleaded. Exceptions to the Right to Ask for Partition: When there is a stipulation against it, not exceeding 10 years [Art. 494 CC] When partition is prohibited by the donor or testator for a period not exceeding 20 years [Art. 494, 1083 CC] When partition is prohibited by law (e.g. ACP, party wall) [Art. 494 CC] When the property is not subject to a physical division and to do so would render it

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partition may be presumed. Recitals in deeds, possession and occupation of land, improvements made thereon for a long series of years, and acquiescence for 60 years, furnish sufficient evidence that there was an actual partition of land either by deed or by proceedings in the probate court, which had been lost and were not recorded. Where a tract of land held in common has been subdivided into lots, and one of the lots has long been known and called by the name of one of the tenants in common, and there is no evidence of any subsequent claim of a tenancy in common, it may fairly be inferred that there has been a partition and that such lot was set off to him whose name it bears. Venue Actions for partition should be filed in the RTC of the province where the property or part thereof is situated. If several distinct parcels of land are situated in different provinces, venue may be laid in the RTC of any of said provinces. [Pancho v. Villanueva, 99 Phil 611] A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. [Rule 69.2]

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e. Partition by commissioners; Appointment of commissioners, Commissioners report; Court action upon commissioners report
Appointment of commissioners If the parties are unable to agree upon the partition, the court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. [Rule 69.3] Duties of Commissioners [Rule 69.4]: view and examine the real estate, after due notice to the parties to attend at such view and examination hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof. General rule: If the commissioners should determine that the real estate cannot be divided without prejudice to the interests of the parties, the court may order that the property be assigned to one of the parties willing to take the same PROVIDED he pays to the other parties such amounts as the commissioners deem equitable EXCEPTION: if one of the parties asks that the property be sold instead of being so assigned, then the court shall ORDER the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. [Rule 69.5] Commissioners report The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties or the sale of the same. Upon filing the report, the clerk of court shall serve copies thereof on 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. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court accepts the commissioners report and rendered judgment thereon. [Rule 69.6] Upon the expiration of the 10-day period, or even before the expiration of such period but after the

d. Order of agreement

partition

and

partition

by

Order of partition After trial, if the court finds that the plaintiff has the right to the property subject of partition, it shall issue an order demanding the partition of the real estate among all the parties in interest. [Sec. 2] (Refers to 1st stage of partition) Partition by agreement After the issuance of the order of partition, the parties will then be asked if they agree to make partition of the property among themselves. If they agree, proper instruments of conveyance will be executed to effect the partition. After the execution of instruments of conveyance, the court shall confirm the partition through a final order. The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. [Rule 69.2] If they do not agree, there will be a partition by commissioners. A party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. [Rule 69.8]

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interested parties filed their objections to the report/statement of agreement, the court, upon hearing, may: ACCEPT the commissioners report and render JUDGMENT based upon it. RECOMMIT the report to the commissioners for further report of facts if there is cause to do the same SET ASIDE the report and APPOINT new commissioners ACCEPT the report IN PART and REJECT it IN PART Make such order and render such judgment as shall effectuate a fair and just partition of the real estate or of its value, if the property is assigned or sold between the several owners thereof. [Rule 69.7] adversely occupies the property without recognizing the co-ownership [Cordova v. Cordova, 102 Phil 1182] in which case, acquisitive prescription may set in. If a co-owner repudiates the co-ownership and makes known such repudiation to the other coowners, then partition is no longer a proper remedy of the aggrieved co-owner. He should file an accion reivindicatoria, which is prescriptible. [Roque v. IAC (1988)]

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12. Forcible Entry and Unlawful Detainer (Asked in the 2000 Bar Exam in Relation to a Pending Action for Specific Performance)
a. Definitions and Distinction

f. Judgment and its effects


CONTENTS OF JUDGMENT Judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party. Judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment. EFFECTS OF JUDGMENT Judgment shall vest in each party to the action in severalty the portion of the real estate assigned to him.

IF ACTUAL PARTITION IS PROPERLY MADE

IF THE WHOLE PROPERTY IS ASSIGNED TO ONE OF THE PARTIES AFTER PAYMENT IF PROPERTY IS SOLD AND SALE IS CONFIRMED BY THE COURT

Judgment shall vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties. Judgment shall Judgment shall state the name vest the real of the purchaser estate in the or purchasers purchaser(s), and a definite making the description of payment(s) free the parcels of from the claims real estate sold of any parties to to each the action. purchaser 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. [Rule 69.11]

Forcible Entry Resorted to when a person is deprived of possession of any land or building by (1) force, (2) intimidation, (3) strategy, (4) threat, or (5) stealth. (FISTS) Must be brought at any time within 1 year after such unlawful deprivation in the proper MTC against the person unlawfully depriving him of possession or against any person or persons claiming under them. Action must be for the restitution of possession of property together with damages and costs. [Rule 70.1] The owners of a property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it. They must file the appropriate action in court and should not take the law into their own hands. [Laurora v. Sterling Technopark (2003)] Unlawful Detainer Resorted to when 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 an express or implied contract. May also be brought by the legal representative or assigns of any such lessor, vendor, vendee, or other persons. Must be brought at any time within 1 year after the unlawful withholding of possession in the proper Municipal Trial Court against the person unlawfully withholding possession or persons claiming under them. Action must be for the restitution of possession of property together with damages and costs. [Rule 70.1] FORCIBLE ENTRY Possession becomes unlawful right from the very start (i.e. from the time of entry) as he acquires possession by FISTS. UNLAWFUL DETAINER Possession was lawful at first but later becomes illegal, as when the lease contract has expired and the lessee refuses to vacate the premises despite

g. Partition of personal property


The provisions of Rule 69 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. [Rule 69.13]

h. Prescription of action
The right of action to demand partition does not prescribe [De Castro v. Echarri, 20 Phil 23], EXCEPT where one of the interested parties openly and

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The deprivation of physical possession of land and building is effected through force, intimidation, strategy, threat or stealth (FISTS). The issue centers on who was in prior possession de facto. Previous demand upon defendant to vacate not required. The plaintiff must allege and prove that he was in prior physical possession of the premises until deprived thereof. 1-year period counted from date of actual entry on the land. demand. The unlawful withholding of possession is made after the expiration or termination of the right to hold possession under any contract, express or implied. The issue centers on whether the defendants right to possess has expired or not. Previous demand to vacate required (jurisdictional). The plaintiff need not be in prior physical possession. 1-year period counted from date of last demand or last letter of demand. It is thus an action whereby plaintiff alleges ownership over a parcel of land and seeks recovery of its full possession. [Javier v. Veridiano (1994)]

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c. How to determine jurisdiction in accion publiciana and accion reinvindicatoria


A/P and A/R are actions involving title to or possession of real property or an interest therein RTC has jurisdiction where the assessed value of the property exceeds P20K or, in MM, P50k MTC has jurisdiction if the assessed value does not exceed said amounts

d. Who may institute the action and when; against whom the action may be maintained
Who may File, When, Against Whom Who: 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 When: At any time within 1 year after such unlawful deprivation or withholding of possession in the proper MTC Against Whom: The person or persons unlawfully withholding or depriving of possession, OR any person or persons claiming under them [Rule 70.1]

b. Distinguished from accion publiciana and accion reinvindicatoria


i. Accion Interdictal the summary action for forcible entry (detentacion) where the defendants possession of property is illegal ab initio, or the summary action for unlawful detainer (desahucio) where the defendants possession was originally lawful but ceased to be so by the expiration of his right to possess, both of which must be brought within one year from the date of actual entry to the land, in case of forcible entry, and from the date of last demand, in case of unlawful detainer, in the proper MTC or MeTC Nature: special civil action involving realty; subject to the Rules on Summary Procedure; [Rule 70.3] under the original exclusive jurisdiction of first level courts; nature of the action is determined by the allegation of the complaint and the character of the relief sought; [Abrin v. Campos (1991)] one co-owner may institute the action. ii. Accion Publiciana A plenary action for recovery of the right to possess and which should be brought in the proper regional trial court when the dispossession has lasted for more than one year. iii. Accion Reivindicatoria Also called accion de reivindicacion, it seeks the recovery of ownership and includes the jus utendi and the jus fruendi, which must be brought in the proper regional trial court.

e. Pleadings allowed
Pleadings must be verified. [Rule 70.4] Allowed pleadings [Rule 70.4]: Complaint Compulsory Counterclaim pleaded in the answer Cross-claim pleaded in the answer Answer

f. Action on the complaint


From the examination of the allegations in the complaint and such evidence as may be attached thereto, the court may: DISMISS the case outright based on the grounds for dismissal for ordinary civil actions apparent in the complaint, or ISSUE SUMMONS, if no ground for dismissal is found. [Rule 70.5] Cases requiring referral to conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement have been complied with. [Rule 70.12]

g. When demand is necessary

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In cases of unlawful detainer, the action by the lessor shall be commenced only after: demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after 15 days in the case of land or 5 days in the case of buildings. [Rule 70.2] EXCEPTIONS (prior demand not required): Where purpose of the action is to terminate the lease by reason of the expiry of its term, and is not for failure to pay rentals or comply with the terms of the lease contract. [De Santos v. Vivas, 96 Phil 538] When the purpose of the suit is not for ejectment but for the enforcement of the terms of the contract. [Guanson v. Ban, 77 Phil 7] When the defendant is not a tenant but a mere intruder. [id] Jakihaca v. Aquino (1990): Demand upon a tenant may be oral. Dakudao v. Consolacion (1983): A person who occupies the land of another at the latter's tolerance or permission, without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which, an action for unlawful detainer may be instituted against him. Muoz v. CA (1992): This rule as to tolerance does not hold true in a case where there was forcible entry at the start, but the lawful possessor did not attempt to oust the intruder for over 1 year, and only thereafter filed forcible entry suit following demand to vacate. Refugia v. CA (1996): Tolerance must be presented right from the start of possession sought to be recovered to categorize a cause of action as one of unlawful detainer. Zobel v. Abreu (1956): When failure to pay rent or comply with the condition of lease is the ground for ejectment, plaintiff should give 2 demands (which may be embodied in 1 demand letter): demand to pay rental or comply with conditions of the lease, and if this is not complied with, demand to vacate Yap v. Cruz (1992): Notice and demand to vacate is required on a lease on a month-to-month period to render effective the termination of the lease upon the expiration of the month, and prevent an implied renewal of the lease. Penas, Jr. v. CA (1994): An alternative demand to either renew the expired lease contract at a higher rental rate or vacate is not a definite demand to vacate and therefore, insufficient basis for the filing of an action for unlawful detainer. Uy v. CA (1989): Refusal to collect or accept rentals is not a defense. There must be consignation. Procedure Filing of complaint. After the court has examined the allegations in the complaint and supporting evidence attached to the same, the court may: DISMISS the case outright based on the grounds for dismissal for ordinary civil actions apparent in the complaint, or ISSUE SUMMONS, if no ground for dismissal is found. [Rule 70.5] Cases requiring referral to conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement have been complied with. [Rule 70.12] The defendant shall file his ANSWER and serve a copy of it to the plaintiff within 10 days from service of summons. [Rule 70.6] Failure of the defendant to answer within the period provided above shall give power to the court, motu propio or on motion, to render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. [Rule 70.7] Affirmative and negative defenses and cross-claims and compulsory counterclaims not pleaded in the answer are deemed waived. EXCEPTION: lack of jurisdiction over the subject matter. Answers to the counterclaims or cross-claims shall be served and filed within 10 days from service of the answer in which they are pleaded. Where there is a defense of tenancy, there must be a preliminary hearing on the question of tenancy relations. [Bayog v. Natino (1996)] If there is a prima facie showing of tenancy, the court should dismiss the case for lack of jurisdiction (jurisdiction belongs to the DARAB). [Baranda v. Padios (1987)] Not later than 30 days after the last answer is filed, a PRELIMINARY CONFERENCE shall be held. Rule 18 applicable. Effects of failure to appear: When the plaintiff does not appear - It shall be a cause for dismissal of his complaint - All cross-claims shall be dismissed - The defendant who appears in the absence of the plaintiff shall be entitled to the judgment on his counterclaim When the defendant does not appear - The plaintiff shall be entitled to judgment (This is true when there is only one defendant or when all of the defendants did not appear)

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General rule: No postponement of the preliminary conference shall be granted. Exception: Highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. [Rule 70.8] The court shall issue an ORDER stating matters taken up during the preliminary conference within 5 days after the termination of the same. Contents of the Order: Whether the parties have arrived at an amicable settlement, and if so, terms thereof; The stipulations or admissions entered into by the parties; Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within 30 days from issuance of the order; A clear specification of material facts which remain controverted; Such other matters intended to expedite the disposition of the case. [Rule 70.9] The parties shall submit affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them within 10 days from receipt of the order. [Rule 70.10] Affidavits required to be submitted shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. Violation of this requirement may subject the party or the counsel who submits the same to disciplinary action and shall be cause to expunge the inadmissible affidavit or portion thereof from the records. [Rule 70.14] Judgment GENERAL RULE: The court shall render judgment within 30 days from the date of its receipt of the affidavits and position papers OR the expiration of the period for filing the same. [Rule 70.11] EXCEPTION: Should the court find it necessary to clarify certain material facts, it may during the 30day period issue an ORDER specifying the matters to be clarified and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. Judgment shall be rendered within 15 days after receipt of the last affidavit or the expiration of the period for filing the same. [Ibid.] The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. [Id.] If the trial court finds that the allegations of the complaint are TRUE, it shall render judgment in favor of the plaintiff for restitution of the premises, the just sum due as arrears of rent or reasonable compensation for the use and occupation of the premises. attorneys fees and costs. [Rule 70.17] If the court finds that the allegations of the plaintiffs are NOT TRUE, it shall render judgment for the defendant to recover his costs. [Ibid.] The judgment rendered in an action for forcible entry shall be conclusive with respect to the possession only, and it shall not in any way affect the title or ownership of the land or building. Hence, such judgment shall not bar an action between the same parties with respect to the title of the land or building. The judgment or final order shall be appealable to the appropriate RTC. [Rule 70.18] Execution of judgment GENERAL RULE: If judgment is rendered against a defendant, execution shall issue immediately. [Rule 70.19 and 70.21] EXCEPTION: Appeal has been duly perfected by the defendant and bond has been posted. Lu v. Siapno (2000): Although immediately executory, the judge should not order immediate execution in his decision. Kaw v. Anunciacion (1995): There must be notice of the judgment and a motion with notice to the adverse party.

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h. Preliminary injunction and preliminary mandatory injunction


Preliminary injunction The court may grant preliminary injunction in accordance with Rule 58 to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession may move for a preliminary mandatory injunction within 5 days to restore him in his possession of the property. The court then shall decide the motion within 30 days from the filing thereof. [Rule 70.15]

i. Resolving defense of ownership


When ownership is raised as a defense, the court may resolved the issue of ownership but only under these conditions: When the issue of possession cannot be resolved without resolving the issue of ownership; and The issue of ownership shall be resolved only to determine the issue of possession [Rule 70.16].

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When the defendant asserts ownership over the property, the inferior court is not divested of its jurisdiction [Rural Bank of Sta. Ignacia, Inc v Dimatulac] The judgment rendered in an action for forcible entry or unlawful detainer shall be conclusive with respect to the possession only, and it shall not in any way affect the title or ownership of the land or building. Hence, such judgment shall not bar an action between the same parties with respect to the title of the land or building. [Rule 70.18] Matters Not Constituting Prejudicial Question to Ejectment [Arcal vs. Court of Appeals (1998)] Injunction suits instituted in the RTC by defendants in ejectment actions in the municipal trial courts or other courts of the first level [Nacorda v. Yatco (1996)] do not abate the latter, and neither do proceedings on consignation of rentals [Lim Si v. Lim (1956)] An accion publiciana does not suspend an ejectment suit against the plaintiff in the former [Ramirez v. Bleza (1981)]. A writ of possession case where ownership is concededly the principal issue before the Regional Trial Court does not preclude nor bar the execution of the judgment in an unlawful detainer suit where the only issue involved is the material possession or possession de facto of the premises [Heirs of F. Guballa, Sr. v CA (1988)]. An action for quieting of title to the property is not a bar to an ejectment suit involving the same property [Quimpo v. de la Victoria (1972)]. Suit for specific performance with damages do not affect ejectment actions (e.g., to compel renewal of lease contract) [Desamito v. Cuyegkeng (1966)]; (Asked in the 2000 Bar Exam) An action for reformation of instrument (e.g. from deed of absolute sale to one of sale with pacto de retro ) does not suspend an ejectment suit between the same parties [Judith v. Abragan (1975)]. An action for reconveyance of property or accion reivindicatoria also has no effect on ejectment suits regarding the same property [Del Rosario v. Jimenez (1963)]. Neither do suits for annulment of sale, or title, or document affecting property operate to abate ejectment actions respecting the same property [Salinas v. Navarro - annulment of deed of sale with assumption of mortgage and/or to declare the same an equitable mortgage (1983); Ang Ping v. RTC - annulment of sale of title (1987); Caparros v. C.A. annulment of title (1989); Dante v. Sison annulment of sale with damages 174 SCRA 517; Galgala v. Benguet Consolidated, Inc. annulment of document (1989)]. GENERAL RULE: If judgment is rendered against a defendant, execution shall issue immediately. [Rule 70.19 and 70.21] EXCEPTION: Appeal has been duly perfected by the defendant and bond has been posted. Procedure for staying the execution of judgment: defendant perfects his appeal in due time; defendant files a sufficient supersedeas bond approved by the Municipal Trial Court; and during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, on or before the 10th day of each succeeding month. [Rule 70.19] BUT upon motion of the plaintiff within 10 days from the perfection of the appeal to the RTC, the court may still issue a preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendants appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious. [Rule 70.20]

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k. Summary procedure, prohibited pleadings


Prohibited pleadings and motions [Rule 70.13]: Motion to dismiss EXCEPTIONS: - Motion to dismiss based on lack of jurisdiction over the subject matter - Motion to dismiss for failure to comply with section 12 (referral to Lupon for conciliation) Motion for a Bill of Particulars Motion for New Trial Motion for reconsideration of a judgment Motion for reopening of trial Petition for relief from judgment Motion for extension of time to file pleadings, affidavits or other papers Memoranda Petition for Certiorari, Mandamus or Prohibition against any interlocutory order issued by the court Motion to declare defendant in default Dilatory motions for postponement Reply Third-party complaints Interventions

13. Contempt
Definition Contempt of court 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 of, to interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a disobedience to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience to the courts order but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice.

j. How to stay the immediate execution of judgment

REMEDIAL LAW REVIEWER


[Heirs of Trinidad de Leon Vda. de Ramos v. Court of Appeals (2004)] Civil Contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein. [People v. Godoy, 1995]; remedial or compensatory in nature; instituted for the benefit of private party. Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act [People v. Godoy, 1995]; punitive in nature, thus, the proceedings are to be conducted in accordance with the principles and rules applicable to criminal cases [SEC v. Recto, 1999]. SEC v. Recto (1999): The violation of a TRO issued by the SEC or any quasi-judicial tribunal is criminal contempt so that acquittal of the respondents is unappealable. Crucillo v. IAC (1999): A writ of execution issued by a court after 5 years from entry of final judgment is void, and disobedience thereto does not constitute indirect contempt. Panado v. CA (1998): The power to declare a person in contempt of court serves to protect and preserve the dignity of the court, the solemnity of the proceedings therein and the administration of justice. But this must be wielded sparingly. For this power should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. LandBank v. Listana (2003): Only the court which rendered the order commanding the doing of a certain act is vested with the right to determine whether or not the order has been complied with, or whether a sufficient reason has been given for noncompliance, and, therefore, whether a contempt has been committed. The power to determine the existence of contempt of court rests exclusively with the court contemned. No court is authorized to punish a contempt against another. Quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant to Rule 71 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. These matters are still within the province of the RTCs.

a. Kinds of contempt
Accdg to the Manner of Commission - Direct - Indirect Accdg to Nature - Civil - Criminal

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b. Purpose and nature of each


Direct Contempt (Contempt In Facie Curiae) A misbehavior committed in the presence of or so near a court or judge so as to obstruct or interrupt the proceedings before the same, including: disrespect toward the court offensive personalities toward others refusal to be sworn or to answer as a witness or to subscribe an affidavit/deposition when lawfully required to do so. It can be punished summarily without hearing. It is conduct directed against or assailing the authority and dignity of the court or a judge, or in the doing of a forbidden act. [Encinas v. National Bookstore (2005); Rule 71.1] Indirect Contempt (Constructive Contempt) A misbehavior perpetrated outside of the sitting of the court. [Patricio v. Suplico (1991)] Acts of indirect contempt: Misbehavior of an officer of the court in the performance of his official duties or in his official transactions; Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts to or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice; Assuming to be an attorney or an officer of the court, and acting as such without authority; Failure to obey a subpoena duly served; The rescue or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. [Rule 71.3] TWO ASPECTS OF CONTEMPT OF COURT:

c. Remedy against direct contempt; penalty d. Remedy against indirect contempt; penalty

REMEDIAL LAW REVIEWER


e. How contempt commenced
See Annex G. Procedure for Indirect Contempt [Secs. 4-6] WHO COURT PARTY INITIATES MOTU PROPIO How it is By ORDER or By a VERIFIED PETITION initiated any WRITTEN with supporting CHARGE particulars and requiring certified true copy of respondent documents or papers to show involved and full cause why he compliance with the should not requirements for filing be held in initiatory pleadings in contempt. ordinary civil actions. Where it When the contempt is directed against is initiated an RTC or equivalent or higher rank: Same court When the contempt is directed against a lower court: RTC of the place where the lower court is sitting; or in same lower court subject to appeal to higher court If hearing is not immediately conducted, respondent may be released upon filing of BOND in the amount fixed by the court. Appeal may be taken in proper courts as in criminal cases. Execution of judgment shall not be suspended even by appeal UNLESS bond is filed conditioned upon the performance by the respondent of that judgment should it be decided against him on appeal.

proceedings

are

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Failure to obey a subpoena duly served; The rescue or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. [Rule 71.3]

g. When imprisonment shall be imposed


When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. [Rule 71.8]. The respondent carries the keys to his prison in his own pocket. [Galvez v. Republic Surety & Insurance Co., Inc, 105 Phil. 944] Only the judge who ordered the confinement of the person for contempt of court can issue the Order of Release. [Inoturan v Limsiaco, Jr.] Rule 71.8 does not apply to tenants who refused or failed to pay their rentals to the special administratrix of the property. The non-payment of rentals, which is a civil debt, is covered by the constitutional guarantee against imprisonment. [Regalado]

Hearing and Bail Appeal Execution of Judgment

h. Contempt against quasi-judicial bodies


Rule 71 applies to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. Where to file: RTC of the place wherein the contempt has been committed. [Rule 71.12] - It is not within the jurisdiction and competence of quasi-judicial bodies to decide indirect contempt cases. The requirement for a verified petition must also be complied with (e.g. DARAB has no power to decide the contempt charge filed before it). [Land Bank v Listana (2003)] Rule 71.12 confers contempt powers on all QuasiJudicial entities or supplements their rules, unless the applicable law provides otherwise. Acts or violations against quasi-judicial bodies punishable as contempt: where a person, without lawful excuse, fails to appear, make oath, give testimony or produce documents when required to do so by the official or body exercising such powers. Other acts or violations cannot be punished as contempt unless specifically defined in the governing law as contempt of court or if it authorizes the quasi-judicial body to punish for contempt, and providing the corresponding penalty. [People v. Mendoza, 92 Phil 570, 13, Ch. 3, Bk VII, Admin Code of 1987]

f. Acts deemed contempt

punishable

as

indirect

Misbehavior of an officer of the court in the performance of his official duties or in his official transactions; Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts to or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice; Assuming to be an attorney or an officer of the court, and acting as such without authority;

REMEDIAL LAW REVIEWER Annex A


1. Service on person associated in an entity without juridical personality [Rule 14, Sec. 8] Service upon minors and incompetents [Rule 14, Sec. 10] If sued under the name by which they are commonly known Serve upon either: 1) Any/all the defendants; 2) Person in charge of the office The service does not bind individually any person whose connection with the entity was already severed before the service Serve upon the minor/incompetent and on his legal guardian. If there is no guardian, plaintiff may apply for the appointment of a guardian ad litem. If minor, may serve on his parents. Serve upon the officer having management of the jail/prison Serve upon either the: 1) President 2) Managing partner 3) General manager 4) Corporate secretary 5) Treasurer 6) In-house counsel Serve upon the resident agent; Otherwise, upon either: 1) Government official designated by law; 2) Any officer or agent of the corporation within the Philippines If the defendant is the Republic of the Philippines Serve upon the OSG If the defendant is a province/city/municipality or like public corporations Serve upon the executive head or other officers as the law/court may direct Requisites: (Asked in the 1997 and 2008 Bar Exam) 1) Defendant does not reside or is not found in the Philippines; 2) Action either: a) Affects the plaintiffs personal status; b) Relates to or the subject matter of which is property within the Philippines in which defendant has a lien/interest; c) Demands a relief which consists wholly/partially in excluding the defendant from any interest in any property within the Philippines; d) Has defendants property in the Philippines, attached. Modes of service: 1) With leave of court, serve outside the Philippines by personal service; or 2) With leave of court, serve by publication in a newspaper of general circulation, in which case copy of the summons and order of the court must also be sent by registered mail to the defendants last known address; 3) Any other manner the court deems sufficient The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer. With leave of court, may serve extraterritorially

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2.

3. 4.

Service upon prisoner [Rule 14, Sec. 9] Service upon domestic private juridical entity [Rule 14, Sec. 11]

5.

Service upon foreign private juridical entity [Rule 14, Sec. 12] Service upon corporations [Rule 14, Sec. 13] Extraterritorial service [Rule 14, Sec. 15] public

6.

7.

8.

9.

Service upon a resident temporarily out of the Philippines [Rule 14, Sec. 16] Service upon a defendant whose identity or whereabouts are unknown [Rule 14, Sec. 14]

With leave of court, by publication in a newspaper of general circulation

REMEDIAL LAW REVIEWER Annex B


SUBPOENA DUCES TECUM Process requiring a person to bring with him any books, documents, documents, or other things under his control or possession. ORDER FOR PRODUCTION OR INSPECTION Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, 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 Order any party to 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. Only to a party Before and/or during trial Issued by the court where the action is pending

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Nature

To whom directed When it may be asked Issued by whom

When issued W/N it is necessary to show good cause Grounds for quashal

To any person Only during trial Issued by a court before whom the witness is required to attend, or court where the deposition is to be taken or clerk or body authorized by law or any justice of the Supreme Court or CA in any case or investigation pending within the Philippines Issued upon request to the clerk (no notice) NO unreasonable, oppressive, irrelevant, or the person in whose behalf the subpoena is issued fails to advance the reasonable costs of the production thereof Constitutes contempt of the court from which the subpoena is issued

Issued upon motion (application with notice to the other party) YES No good cause shown

Consequence disobedience

of

See Sec. 3, Rule 29

REMEDIAL LAW REVIEWER Annex C


PROVISION HIGHLIGHTS Section 1. REFUSAL TO ANSWER. 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 (i.e., by MOTION FOR THE ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) to the proper court of the place where the deposition is being taken, for an order to compel an answer. 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 the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney's fees. IF THE APPLICATION IS DENIED and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney's fees. Section 2. Contempt of court. 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. Section 3. Other consequences. THE AGGRIEVED PARTY MAY APPLY FOR: 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; 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; 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; and IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION THERETO, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination. Section 4. Expenses on refusal to admit. If a party after being served with a request under Rule 26 refuses to admit the genuineness of any document or the truth of any matter of fact and serves a sworn denial thereof, and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact APPLICABILITY PARTY OR DEPONENT /WITNESS IN RULE 23 (depositions de bene esse), RULE 24 (depositions in perpetua rei memoriam) RULE 25. INTERROGATORIES TO PARTIES

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PARTY OR WITNESS IN RULE 23 (depositions de bene esse), RULE 24 (depositions in perpetuam rei memoriam) PARTY or an OFFICER OR MANAGING AGENT OF A PARTY in RULE 23, 24, 25 who refuses to obey an order made under RULE 29 Section 1 PARTY who refuses to obey an order under RULE 27 to produce any document or other thing for inspection, or to permit entry upon land PARTY who refuses to obey an order made under RULE 28 requiring him to take a physical examination (APPLIES TO all modes of discovery except RULE 26 ON REQUEST FOR ADMISSION BY AN ADVERSE PARTY)

PARTY SERVED WITH A REQUEST RULE 26 ADMISSION BY AN ADVERSE PARTY

REMEDIAL LAW REVIEWER


PROVISION HIGHLIGHTS he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including attorney's fees. Unless the court finds THAT THERE WERE GOOD REASONS FOR THE DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL IMPORTANCE, SUCH ORDER SHALL BE ISSUED. SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS. If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, The court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES. Expenses and attorney's fees are not to be imposed upon the Republic of the Philippines under this Rule APPLICABILITY

198

PARTY OR AN OFFICER OR MANAGING AGENT OF A PARTY RULE 23 (depositions de bene esse), RULE 24 (depositions in perpetuam rei memoriam) RULE 25 INTERROGATORIES TO PARTIES

Applies to all provisions in Rule 29 requiring a noncompliant party or witness (who represents the Republic in an official capacity) to pay.

REMEDIAL LAW REVIEWER Annex D


JUDGMENT OR FINAL ORDER (order that disposes of the action or proceeding)

199

If no appeal has been perfected, or the period of appeal has expired

If an appeal has been perfected and duly resolv ed, there are two ways by whic h execution can be carried out

Prevailing Party applies (by motion) for a writ of execution, whic h is granted by the judge since it is a matter of right

Prevailing party files a motion in the court of origin , submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party1.

The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution.

REMEDIAL LAW REVIEWER Annex E

200

Situation 1: Trial Court still has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be.

Situation 2: Trial court has lost jurisdiction

In Situation1, prevailing party files a MOTION WITH NOTICE TO THE ADVERSE PARTY in the Trial Court. In Situation2, prevailing party files the motion for execution pending appeal in the appellate court.

Discretionary execution may be granted only for GOOD REASONS to be stated in a SPECIAL ORDER.

NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against whom it 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. The bond thus given m ay be proceeded against on motion with notice to the surety

IN CASE the judgment w hic h was executed pending appeal is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of dam ages as equity and justice m ay w arrant under the circumstances

REMEDIAL LAW REVIEWER Annex F


CERTIORARI (Asked in 2000 and 2006 Bar Exams) When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted: - without or in excess of its jurisdiction; or - with grave abuse of discretion amounting to lack or excess of its or his jurisdiction1 AND there is no appeal, or any plain, speedy, and adequate remedy2 in the ordinary course of law. (R65.1) To correct an act performed by the respondent Discretionary acts Aggrieved person Those exercising judicial or quasijudicial functions Verified alleging the facts with certainty PRAYER: that judgment be rendered annulling or modifying the proceedings of such tribunal, etc., and granting such incidental reliefs as law and justice may require. accompanied by a certified true copy of the subject judgment, etc., copies of all relevant pleadings and documents, and a certification of non-forum shopping. PROHIBITION Grounds When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial, or ministerial functions, are - without or in excess of its or his jurisdiction; or - with grave abuse of discretion amounting to lack or excess of its or his jurisdiction AND there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. (R65.2) Purpose To prevent the commission or carrying out of an act Act sought to be controlled Discretionary and ministerial acts Petitioner Aggrieved person Respondent3 Those exercising judicial and/or non-judicial functions Form of petition verified alleging the facts with certainty PRAYER: that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. accompanied by a certified true copy of the subject judgment, etc., copies of all relevant pleadings and documents, and a certification of non-forum shopping. MANDAMUS (Asked in the 2006 Bar Exam) 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 - unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled AND there is no other plain, speedy and adequate remedy in the ordinary course of law. (R65.3) To compel the performance of the act desired Ministerial acts Aggrieved person Those exercising judicial non-judicial functions and/or

201

verified alleging the facts with certainty PRAYER: that judgment be rendered commanding the respondent, immediately or some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. contains a certificate of nonforum shopping.

Without jurisdiction Excess of jurisdiction Grave abuse of discretion

If respondent does not have the legal power to determine the case If respondent has the legal power to determine the case but oversteps such power If respondent has the legal power to determine the case but acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment

A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. [Silvestre vs. Torres (1946)]
2

When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings. xxx
3

If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. [Rule 65.5]

REMEDIAL LAW REVIEWER Annex G


Direct Contempt How Committed Nature of Proceedings Indirect Contempt Can be committed only in the presence of or so Can be committed anywhere as long as the near a court or judge. acts mentioned in Sec. 3 are done. The person guilty of misbehavior is summarily The person guilty of misbehavior may be adjudged by the court against which the punished only after charge in writing has been contempt was committed at the very moment filed, and an opportunity given to the accused of the perpetration. to be heard by himself or counsel [Rule 71.3] [Rule 71.1] If the contempt is directed against an RTC, a court of equivalent or higher rank: FINE = not exceeding P2,000; or FINE = not exceeding P30,000; or IMPRISONMENT = not exceeding 10 days; or IMPRISONMENT = not exceeding 6 months; or both both If the contempt is directed against a lower court: FINE = not exceeding P200; or FINE = not exceeding P5,000; or IMPRISONMENT = not exceeding 1 day; or both IMPRISONMENT = not exceeding 1 month; or [Rule 71.1] both [Rule 71.7] Summarily adjudged by the court against which By the court motu propio thru an ORDER or the contempt is directed and punished there any formal charge and then. In all other cases, by a VERIFIED PETITION. [Rule 71.1] (If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact, but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision.) [Rule 71.4] No appeal, but subject to certiorari or May be appealed to the proper court as in prohibition. criminal cases, but execution shall not be [Rule 71.2] suspended until BOND is filed. [Rule 71.11]

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Punishment

How proceedings commenced

Remedy