CIVIL PROCEDURE

Prof. V. A. Avena
1st Semester, AY 2015
PRE-MIDTERM EXAM EXERCISES
(from AY 2014-15 down to AY 2011-2012)
1. A and B (a call center agent and a government clerk, respectively) executed
a contract with their cousin, contractor X, for the construction of a building o
n a lot owned by them together with their rich Australian immigrant brother C.
X put up a performance bond via Y Insurance Co. as surety, and also advanced the
costs for the first half of the P20M project, to guarantee the payment of which
A, B and C mortgaged the lot in favor of X. Due to defects in the building dis
covered not long after completion of the project, A convinced B that litigation
is the only remedy, as X refused to do repairs, imputing the defects to sub-sta
ndards materials that resulted from changes in specifications that A and B insis
ted on to save on costs. C refused to join in the suit, chiding A for not consi
dering his debt of gratitude for the P5M that X had earlier loaned to him.
a) State the step/s that A and B can, cannot, and/or need not, take under the c
ircumstances?
b)
c)
d)
t.

State the step/s that X can, cannot, and/or need not, take as a result?
State the step/s that Y can, cannot, and/or need not, take as a result?
Assume that X files an answer but Y happens not to and is declared in defaul
Y's lawyer advises that Y has no reason to worry. Comment.

2. In A's P1M collection suit v. B based on their notarized loan contract, B a

lleged
his defense of full payment;
that A is a greedy, perjurious businessman who has filed the baseless suit unre
asonably and unnecessarily and committed perjury by his false sworn allegations
in his complaint;
attached to his answer a pay to cash check for P1.5M which, on its dorsal side, s
hows deposit into the bank account of A (because it was mistakenly delivered to
A by B's clerk instead of to B's other creditor C; and
set forth B's prayer for reimbursement by A of his (B's) mistaken overpayment o
f P.5M, which is a compulsory counterclaim because it arises out of, or is conn
ected with, B's defense of payment.
Is/are there any step/s that A's lawyer should take?
3. When he went abroad as an OFW, Mr. X entrusted to his best friend Mr. B the
title to his family home in Valenzuela, Bulacan (comprising land and a bungalow)
, only to hasten his return upon discovery of the truth of the rumor that Mr. B
had betrayed him by forging his (X s) signature as vendor on a fictitious deed of
sale in favor of himself (B). Mr. X at once filed an accion reivindicatoria in
the RTC of Bulacan for recovery of his land the assessed value of which was P50,
000.00 , likewise claiming actual damages of P.8M for his untimely return and th
e loss of his job, moral damages of P.4M, exemplary damages of P.3M, and attorne
y s fees of P.2M. B moved to dismiss on the ground of lack of jurisdiction. Is t
he motion meritorious?
4. Van driver D delivered goods to the Hagonoy, Bulacan branch of Mr. O's minimart on January 31, 2014. Driving off and unknown to D, the swinging open rear
door of the van had hit the 5-year old son of O, causing head injuries. Mr. O w

as unable to identify Mr. D because the van s broken plate number showed only two
letters and two numbers. When the police were finally able to decipher the plate
number five years after, O filed a complaint for damages against the driver, wh
om he named John Doe, and supplier S Merchandising owned by Manileo Mr. SM, and w
as allowed to serve summons by publication in Hagonoy.
When no answer was filed, Mr. O was able to obtain a judgment by default against
the defendants, which was published in Hagonoy. When the sheriff began to exec
ute judgment upon his Makati branch bank accounts, Mr. SM sought lawyer L. What
moves should L take, if any?
5. Mr. O brought an ejectment suit against Mr. T in the MTC for the latter s fail
ure to pay the purchase price of the house and lot pursuant to their contract.
In turn, Mr. T (a) filed an action in the RTC for reformation of their contract
under the Civil Code, alleging that actually it is merely an equitable mortgage,
that he (Mr. T) is only obliged to repay the loan that Mr. O gave him, that acc
ordingly ownership never passed to Mr. O, and thus, until and unless Mr. O succe
ssfully forecloses the mortgage, he has no right to possession; and (b) moved to
dismiss the ejectment suit in the MTC for lack of jurisdiction over the subject
matter, failure to state a cause of action, and/or lack of cause of action. Mr
. O moved to dismiss the suit in the RTC on the ground of litis pendencia and fo
rum-shopping, as well as moved for sanctions against Mr. T.
a)
Rule on all the motions.
b)
If you were the lawyer of Mr. T and the contract seems to you to be trul
y an
equitable mortgage, would you or would you not have adopted his lawyer s strategy?
6. Six years after its execution, Mr. C sued octagenarian businessman Mr. D for
payment of an IOU, received thru Mr. D s accountant, which provided that it was p
ayable upon Mr. C s demand. When Mr. D died, his son Mr. S substituted for him.
It was only after judgment was rendered that Mr. S requested examination and the
NBI was able to determine that the IOU was a forgery. Mr. S moved to file an a
mended answer on the basis of section 5 of Rule 10, alleging lack of cause of ac
tion as affirmative defense. On the other hand, Mr. C likewise moved to amend h
is complaint to allege a verbal loan instead, claiming that even as it turns out
that Mr. D s accountant had forged Mr. D s signature, Mr. D nevertheless received t
he proceeds of the loan.
a) Would you have filed the same motion that Mr. S filed? Why or why not?
b) If you were Mr. S, (assuming 10.5 was proper) would you have any grounds to
oppose Mr. Ds amended complaint?
7. Because of constant battery from her husband, Mrs. A left the Pasig City con
jugal residence with her 5-year old child and settled in her mother s home in Pamp
anga. Mr. A thus filed a petition for custody of the child with the Pasig City
MTC. Does Mrs. A have any ground for a motion to dismiss?
8. X, a Filipino naturalized as an American citizen, left a parcel of rural lan
d in Argao, Cebu upon his death. In accordance with the rules on special procee
dings, his only son OS filed an affidavit with the Register of Deeds adjudicatin
g the entire estate unto himself, together with a bond to answer for any claim w
hich a possible creditor might filed within two years. After six months, IC sur
faced as an illegitimate child and, claiming a half-share in the land set forth
in OS affidavit, filed an action with the Cebu RTC with branch in Argao, to recov
er the same.
X moved to dismiss, alleging that the assessed value of the land is only P50,000
.00. IC opposed, saying the market value of the land is at least P350,000.00.
Rule.

9. Company A engaged Company B for the construction of a high-rise in Davao Cit

y. Co. B later sued Co. A for too much delay in Co. A s staggered payments [Case
No. 1]. In its defense, Co. A alleged that the payments were not due until Co.
B completed with corresponding phases of construction. At the pre-trial, the pa
rties arrived at an amicable settlement (B will speed up construction and waive
one month s worth of dues for January while A will pay the balance covering Februa
ry to June), which the court approved.
Thereafter A sued for rescission on the ground of too much delay in B s constructi
on and demanded damages for the delay as well as the return of overpayments for
the months of February to June. In its answer, B denied the factual allegations
in the complaint and, by way of affirmative defense, alleged that A s claim for o
verpayments is already barred because it is a compulsory counterclaim that shoul
d have been set up by A in Case No. 1. Rule.
10. Upon the death of their father, Brothers A and B allowed a cousin Y to cons
truct a small hut inside their family compound in Lipa City, Batangas. Later, C
(another brother) returned from abroad; wanting to set up his own home in the c
ompound, he requested Y to transfer his hut elsewhere. A and B then told C that
, in actuality, Y was not a cousin but an illegitimate son of their father and t
herefore their half-brother. C was not moved and filed a case for unlawful deta
iner against Y in the Lipa City MTC. In his answer, Y alleged that he is entitl
ed to one-half share of each legitimate son s aliquot inheritance and therefore ca
nnot just be unceremoniously ejected, and prayed for partition of the family hom
e. C moved to dismiss this counterclaim of Y. Rule.
11. Vehicle C was traversing the national highway along Agoo, La Union northwar
ds, followed by vehicle B, then vehicle A.
B overtook C but in the process sideswiped oncoming vehicle D in the opposite la
ne. As a result, after the overtaking, C bumped the rear of B when the latter r
eturned to their lane. Because of the sudden stop, A then bumped the rear of C.
On March 1, 2006, B s owner (BO) filed a suit before the RTC in La Union (his plac
e of residence), for damages against C s owner (CO) and driver CD, both residents
of Makati City. [Case No.1]
CO filed a counterclaim for damages of P900 thousand, especially because of the
great distance of the court from his residence.
On June 1, 2006, corporate owner of vehicle A (COA) sued CO for damages in the a
mount of P300 thousand before the MTC in Pampanga, the location of the branch of
fice to which the vehicle and its driver were assigned. [Case No. 2]
CO filed an answer, saying it was BO s fault, together with a third-party complain
t against BO for P550 thousand, to cover A s claim, moral damages of P100 thousand
, exemplary damages of P50 thousand, and attorney s fees of P100 thousand.
On February 1, 2007, CO won in Case No. 1.
On March 1, 2007, D s insurer (DI) filed suit in the RTC, in Makati, the location
of its principal office, against BO and CO to recover what it had paid D s owner (
DO). [Case No. 3]
BO filed a cross-claim against CO, and CO filed a third-party complaint against
AO.
CD moved to dismiss Case No. 1 on the ground that Makati City would be the prope
r venue because it would be less oppressive for both defendants as against the l

one plaintiff, considering the great distance of La Union.

BO moved to dismiss CO s third-party complaint in Case No. 2 on the ground of liti
s pendencia and because it exceeds P300 thousand. Rule.
In Case No. 3, CO moved to dismiss BO s cross-claim in Case No. 3 on the ground of
res judicata because of the judgment in Case No. 1. In addition, CO moved that
BO be declared in contempt for failure to disclose the said Civil Case No. 1 in
a certificate of non-forum shopping.
Further, in Case No. 3, A moved to dismiss CO s third-party complaint.
Rule.
12. In Wee v. De Castro and in Quiombing v. CA, the other co-owners were declar
ed to be non-indispensable parties, whereas in Arcelona and Orbeta, they were de
clared to be indispensable. Why the difference?
13. In respect of remedy(ies) where an indispensable party is not impleaded, wh
at do we learn from Orbeta and Limos?
14. A filed a collection suit against B, then he (A) assigned to C whatever rel
iefs may be adjudged in his favor. B moved to dismiss for lack of cause of acti
on. Rule.
15. When a member of a class suit intervenes to protect his individual interest,
should he do so through a complaint-in-intervention or by amending the complaint
?
16. Was Oposa v. Factoran a class suit?
17. Based on Oposa (July, 1993), should not the court in Joya v. PCGG (August,
1993) declared the plaintiffs (and their unborn children) real parties-in-intere
st based on their beneficiaries' right of action (Feliciano, J., concurring opinio
n)?
18. Romblon resident M is sure that F, the world-famous idiosyncratic American
chess player now in self-exile in Iceland, is the father of UP College of Law fr
eshman-Ipil dorm resident C, the daughter that she gave birth to following an af
fair that they had during F's two-year sojourn in Baguio city sixteen years befo
re. So when news circulated that F would soon be holding a series of farewell c
hess matches in Baguio City, M hurriedly prepared to sue for C's acknowledgment
as well as support of at least P100,000/month. Two weeks before F's arrival M's
lawyer Atty. ML filed the complaint in the MTC of Baguio City because he includ
ed allegations in support of a prayer for the attachment of F's favorite car whi
ch F always made sure he had in all his trips. In his haste, Atty. ML filed in
court an unsigned copy of the complaint instead of the signed original. Neverth
eless the sheriff was able to deliver the summons and its necessary accompanying
documents to The Manor hotel. F however refused to receive any of it (speciall
y when he saw the writ of attachment against his car which fortunately was still
being discharged from the Manila Port Area), so the sheriff left them with the
hotel front desk clerk in charge of ensuring delivery to checked-in guests.
When after three weeks F did not file an answer, M moved to declare him in defau
lt. The trial court granted the motion, and M began testifying in court.
If F learns about this and engages Atty. A, what are the two opposite step/s tha
t Atty. A can take?
Why are they opposite?

Even before the court could act upon the remedy/ies taken by Atty. A, Atty. ML f
iled a signed original amended complaint. Any effect?
Let us grant that the proceedings were in the RTC and ended in judgment by defau
lt in favor of M, which Atty. A was not able to remedy. Atty. ML now moves to e
nforce this judgment also against the cash award that, he discovered, accompanie
d the grand prize that F had won in Baguio. Atty. A opposes on the ground that
this is not allowed under Rule 9.3.d. Rule.
19. A sued B for the return of his complete downpayment for the sale of a condom
inium unit,
alleging in paragraph 5 of his complaint, among others, as follows:
Despite dema
nds, defendant refused to deliver the subject property, reasoning out that plain
tiff failed to complete his downpayment.
In response to this particular allegati
on, defendant alleged in his answer as follows: Defendant specifically denies the
allegation in paragraph 5 of the complaint to the effect that he refused to del
iver the subject property for the reason that plaintiff had not completed his do
wnpayment, defendant having no knowledge or information sufficient to form a bel
ief as to the truth thereof. Did B allege a specific denial?
20. The two loans that A procured from Bank B both contained cross-default and
acceleration provisions, i.e., a default in the payment of Loan No. 1 will also
be considered a default with respect to Loan No. 2 and vice-versa, by virtue of
which the entirety of both loans will be considered due and demandable. Loan No
. 1was secured by an extrajudicial mortgage on A's Lot 1, Loan No. 2 by an extra
judicial mortgage on A's Lot 2. A defaulted on Loan No. 2, but requested releas
e from mortgage of Lot No. 1 on the ground that Loan No. 1 has been paid but Ban
k B deliberately miscomputed the amounts due. When Bank B refused and proceeded
to apply for the sheriff's assistance for the auction sale, A filed a case agai
nst Bank B (Case No. 1), praying that it be enjoined from conducting the auction
sale, release Lot No.1 from the mortgage, and pay damages.
In its Answer, Bank B specifically denied the foregoing, alleging the total amou
nt due based on the cross-default and acceleration clauses, and set up as counte
rclaim its agreed counsel's fee of P200,000.00 which it had to spend for the cas
e. Soon after, Bank B proceeded with the auction sale, but because the total lo
an amounts due was P5M whereas Lots 1 & 2 were only sold for P3M, Bank B sued A
for the deficiency of P2M (Case No. 2). Choose the correct or best answer, as t
he case may be:
(i) Case No. 2 may be dismissed on the ground of litis pendentia because the p
arties and subject matter are the same as those in Case No. 1 and the issue of l
iability depends on the issue in Case No. 1, such that it should have been set u
p as a counterclaim in the latter.
(ii) Case No. 2 may not be dismissed on the ground of litis pendentia because
the claim asserted therein may be set up in another suit, the same being in the
nature of an after-acquired counterclaim.
(iii) Case No. 2 may be dismissed on the ground of litis pendentia because, eve
n if the claim
asserted therein is in the nature of an after-acquired counterclaim, the same sh
ould have been set up in a supplemental pleading before judgment in Case No. 1.
(iv) Case No. 2 may not be dismissed on the ground of litis pendentia because,
even if the claim asserted therein is in the nature of an after-acquired counter
claim, the same need not be set up in a supplemental pleading before judgment in
Case No. 1.

21. In the early morning of January 31, 2009, while cruising on a mountain bike
along an Antipolo road, UP dorm-mates X and Y lost balance, fell sideways, and
bumped Z who was tending to the garden by the gate of his house, but no injury w
as evident on Z's body. On January 31, 2010, the doctor was able to diagnose wh
at injury Z suffered from the bicycle mishap. The next day, Z set forth all the
foregoing facts in the complaint that he filed against X and Y before the MTC o
f Antipolo for damages due to the injury. But when his doctor advised him to im
mediately go abroad for treatment and therapy, Z felt he had no choice, and so f
iled a notice of dismissal the next day. Upon arrival, Z filed suit against X a
nd Y, based on the same allegations, on February 1, 2013 before the MTC of Antip
olo. The court dismissed the case motu proprio. Choose the correct or best answ
er, as the case may be:
The dismissal was:
(i) proper because motu proprio dismissal due to prescription, without notice a
nd hearing, is allowed under Rule 9.1
(ii) proper because the action had already prescribed on the date when it was f
iled, the period for prescription having run from the date of occurrence of the
mishap
(iii) not proper because the action had not yet prescribed on the date when it
was filed, the period for prescription having run from the date of discovery of
the injury
(iv) not proper because for the court to motu proprio dismiss under Rule 9.1, t
he fact of prescription must clearly appear from the evidence before it.
22. State whether true or false:
a) A real party-in-interest refers to an indispensable party.
False. An indispensable party is just one kind of real part in interest. A neces
sary party is also a real party in ine
b) A derivative suit is a class suit.
No.
c) Whenever the defending party fails to file his responsive pleading on time, t
he court should, upon motion of the complaining party, declare the former in def
ault.
d) The court may consider service by ordinary mail complete upon actual receipt.
e) Except under Rule 17, the court may not dismiss a case motu proprio; there mu
st be a motion to dismiss filed by the defending party.
f) When there is a compulsory counter-claim or cross-claim that is existing at t
he time a defending party files his answer, he must set it up in his answer, oth
erwise the same is deemed absolutely and forever waived and barred.
g) Notwithstanding Banco-Espanol Filipino v. Palanca, extra-territorial service
of summons will be valid only if the summons and copy of the complaint were sent
by registered mail to the last known address of the defendant.