Remedial Law Review Lecture and Recitation Notes

Glenn Tuazon, 4-AAtty. Tranquil SalvadorSY 2010-11

PART I: CIVIL PROCEDURE

Jurisdiction

Stuff to take note of in jurisdiction:

What is the definition of jurisdiction? Jurisdiction over the case or the subject matter? (Subject matter

jurisdiction) Jurisdiction over the person or the defendant? Know the rules on filing fees.

N.B. vis-à-vis for criminal cases:

Definition – the same, as conferred by law, except you have to add that venue is jurisdictional. Territory is intertwined with jurisdiction, unlike in civil cases, where parties can agree on venue or it can be subject to waiver.

Jurisdiction over the offense. This is essentially the same as jurisdiction over subject matter.

Jurisdiction over the person. This is jurisdiction over the person of the accused.

Filing fees are not necessary.

What is the definition of jurisdiction?o The power of the court to hear, try, or decide the caseo As conferred by law

How will the court know that it has jurisdiction?o From the allegations of the complaint.

Where do you take jurisdiction over the case?o Conferred by law as well.o Study BP 129, amended by RA 7691.

Do not assume that RA 7691 tells all. There are other laws too.

What is the jurisdiction of the RTC?o 1. Right/title/interest over real property, where value is: Value

is > 20K (OMM), > 50K (MM) Claim for ejectment due to unpaid rentals of over

400K. Which has jurisdiction? MTC. Ejectment is always under MTC,

regardless of the claim over unpaid rentals. Recovery of possession, not ejectment. Fair

market value of property is 1.5M. The assessed value of the property is 80,000. Property is located in MM. Which has jurisdiction?

RTC, based on assessed value (not FMV) which is over 50K. “Recovery of possession” does not necessarily mean ejectment (ex. Accion publiciana).

Value is determined by assessed value if it involves right, title, or interest

Ouano case? There was discussion whether FMV or

assessed value dictates. Assessed value wins.

o 2. Amount incapable of pecuniary estimation Examples: rescission, reformation of contract, specific

performance Is expropriation capable of pecuniary estimation?

Expropriation is always filed with the RTC. Though the subject matter is capable of pecuniary estimation, the action is exclusively instituted in the RTC.

What about declaratory relief? RTC always has jurisdiction, and the SC

does not except when there is an issue of constitutionality.

There is no such thing as determination of value; just a determination of validity.

What about support?

Even if its amount can be determined, the law confers it to the Family Courts.

Foreclosure of mortgage? Two views: one says that it’s always with the

RTC, because it only covers the security of the property. The original action is always for recovery of money.

The other view is that it must be governed by the value of the security.

o 3. Family cases/marriage Includes support, annulment, nullity, etc.

o 4. Juvenile/agrarian caseo 5. Other claims, where claim exceeds 300K (OMM) or 400K

(MM) The original text gives lower values. When was it

adjusted? Original costs took effect March 25, 1994 1999 – adjusted OMM from 100K to 200K 2004 – adjusted both MM and OMM to 400K

and 300K respectively Always take note of the word “exceeding” so the exact

amount is for the lower court.o 6. Probate of will, determination of inheritance – same amounts

Considering that the MTC has jurisdiction over probate cases, at times, what if the value of the estate is 100K? Can the probate of a will be subject to summary procedure?

No. The rules on summary procedure explicitly exclude probate proceedings.

Note that the MTC has a number of procedures. There are ordinary proceedings and summary proceedings, and now, small claims.

So the “not exceeding 100K (OMM) and not exceeding 200K (MM)” only applies for summary proceedings. But it explicitly excluded probate proceedings.

What is the jurisdiction of the MTC over small claims?

Not exceeding 100K.

o 7. Admiralty cases – same amounts In determining the 300K/400K, can you include damages, interest,

attorney’s fees, litigation costs, etc?o NO. Only limit the amount to the demand or the claim.o But remember that there can be a principal action for

damages, in which the amount of damages claimed determines the amount. This is not covered by RA 7691, this is covered by 95-9-94.

Small claimso What is the amount?

Not exceeding 100K.o Is there a distinction between OMM and MM in small

claims? No.

o What should be included in the 100K? The claim itself. Exclusive of damages What if the principal action is for damages?

Does not apply. Actions for damages are not covered by small claims actions, because these have to be ascertained. These are not akin to sum-of-money cases.

o Does it cover quasi-delicts? Yes. (Covers: fault/negligence, quasi-contract, or

contract)o What if it arises from commission of an offense?

Yes – for the civil aspect of such (fault/negligence). Just remember that when you file a criminal case, the

civil aspect is likewise filed (unless reserved, waived, or filed ahead). So it cannot be the subject of small claims.

o Do you need a lawyer to file the complaint? Do you need to prepare a regular complaint.

No need for a lawyer. There is also a standard form provided.

o How will you address the problem where the claim is for sum of money not exceeding 100K, and it is outside MM?

There is an overlap here between summary procedure and small claims procedure. Which is preferred?

This is still open for discussion, and is not yet clear. Sir suggests that the option is upon the complainant,

since there is concurrent jurisdiction of both small claims court or court of summary procedure.

What is the MTC jurisdiction?o Just the opposite of everything in RTCo Then just add ejectment/unlawful detainer

What is the jurisdiction of the CA?o It has both original and appellate jurisdiction.o Original : habeas corpus, habeas data, certiorari, prohibition,

mandamus, quo warranto, writ of amparo, annulment of judgment

o Appellate : ordinary appeal (notice of appeal), petition for review, over quasi-judicial bodies

What is the jurisdiction of the SC?o Also both original and appellate jurisdiction.o Original : habeas corpus, habeas data, certiorari, prohibition,

mandamus, quo warranto, writ of amparo, disciplinary actions over PLUS –

Actions against members of the Bar [concurrent with IBP];

actions against ambassadors, public ministers, consuls, etc.;

constitutionality of treaties, laws, proclamations, etc.; declaratory relief only when there is a question of

constitutionalityo Appellate :

decision of CA, decision of CTA en banc, decision of SB, decision of RTC on pure questions of law;

REMEMBER this motherhood statement: the only way to go up to the SC is for petition for review on certiorari (RULE 45). This applies to civil and criminal cases, except if the penalty in a criminal case is death, RP, of life imprisonment.

Jurisdiction over the person of the defendant:o 1. Voluntary appearance

By submitting to the jurisdiction of the court; ex. Appearing in court or filing an answer or filing motion for extension of time without disputing the court’s jurisdiction

o 2. Proper service of summons Rule 14

Filing fees:o Rule #1: payment of filing fees is jurisdictional in civil caseso Rule #2: how does the court determine filing fees?

You include interest, damages, attorney’s fees etc. – pay everything that you allege for court fees

But for jurisdictional purposes, just the principal claimo Rule #3:

Sun Insurance Filing fees must be paid within prescriptive period or

reglementary period (for appeals or compulsory counterclaims), or else it is deemed prescribed

o Rule #4: Alday v. FGU Insurance Permissive counterclaims require docket fees

The claim does not arise from the principal action, but involves the same parties. This could easily have been filed separately.

Compulsory counterclaims do not require docket fees BUT read Korean Technologies case of 2009 – this

is how you answer the question whether compulsory counterclaims require filing fees

From nowhere, this case required that even compulsory counterclaims have docket fees paid. Korean Technologies cited Rule 141.

But in practice, based on an SC Resolution, the collection of filing fees on compulsory counterclaims is suspended. This has not been lifted yet.

Alday: Payment of filing fees for compulsory counterclaims is not required. But you have to take note of Korean Technologies now

o Lien on the judgment?

If there are damages granted to the complainant, but there has been lack of payment of filing fees. The payment of docket fees is a lien on the damages.

What if the claim has already ripened upon the filing of the complaint, but by omission, but you were not able to allege it. Can this be a basis for a lien on the judgment?

Proton Pilipinas v. Banque Nacional There was a claim that has ripened but was

not included, and there were interests that would ripen once the action is pending.

SC said that a claim ripened during the pendency of the case, it can be a lien on the judgment.

But if you did not allege it, the court cannot grant an award because you did not pay docket fees.

o What is the rule on deficient or insufficient payment of filing fees?

Rivera v. Del Rosario You have to pay full filing fees. The deficiency must

not be based on the fault of complainant. But if the fault lay on the wrong assessment of the clerk of court, there is a chance to pay the deficiency.

Jurisdiction is not automatically lost. Clerk of court makes a deficiency assessment.

There must be no intention to defraud. Thornton:

o Husband filed for habeas corpus in RTC Makati to recover child from wife

o What are the two kinds of habeas corpus? N.B.: there are two kinds of habeas corpus – custody

of minors and regular habeas corpus in the Rules of Court

o RTC Makati dismissed the case because the child was allegedly in Basilan.

o What is the effectivity of writs of habeas corpus?

N.B.: Effectivity of writ issued by regular court only enforceable in the territorial jurisdiction. But CA and SC – everywhere.

o Filed with the CA, but was denied because the RTC (Family Courts) have original jurisdiction over custody of minor Habeas Corpus cases.

o HELD: Can file with CA. It has jurisdiction. SC has jurisdiction, too. The CA and SC have concurrent jurisdiction over habeas corpus cases.

o But always remember that when you talk about concurrent jurisdiction, you still have to follow hierarchy of courts.

Herrera v. Bollaso Ejectment case (1 year period). Filed within the proper period,

but the complaint was amended to add additional defendants beyond the 1 year period. Does the court still have jurisdiction?

o After the lapse of the year period for ejectment, has the claim prescribed?

No. N.B. One year period is not prescriptive period. You just file action pubiciana with the appropriate court (RTC or MTC, depending on the assessed value), not the MTC by default (for ejectment).

o HELD: MTC still had jurisdiction for ejectment (based on original complaint.)

Oca:o Repetition of Tijam v. Sibonghanoy – estoppel by laches. After

active participation in a case, you cannot question the court’s jurisdiction anymore.

o Went up to the SC through Rule 43 (appeal to CA from a QJA) Usually decisions of QJA go up to the CA under Rule 43. What are

the exceptions?o 1. HLURB decisions, as provided in charter, appealable to the

Office of the Presidento 2. CTA decisions, under amended rules, appealable to the

CTA en banc, then SCo 3. NLRC decisions, although by a QJA, are reviewable by the

CA although not under Rule 43, but Rule 65 (GADALEJ).

o 4. OMB decisions – go to the CA, under Rule 43, for administrative cases. But if there is GADALAEJ, go to the SC, under Rule 65.

Mijares:o Which court has jurisdiction over enforcement of foreign

judgments? RTC, because enforcement of foreign judgments are

incapable of pecuniary estimation. ALWAYS, regardless of amount of judgment, since it

is not based on the amount of the claim. In this type of action, you don’t need to prove the facts

again, etc.o Marcos’s group that docket fees must be based on the

value/amount of the claim, which is up to the Billions. Is this correct?

This rule applies to money claims against an estate, but without judgment yet. Here, there already was a judgment in DC of Hawaii.

o How do you impugn a judgment? Lack of notice Lack of jurisdiction Collusion Fraud

o What is the rule on Arbitral awards? These must be should be enforced or recognized An arbitral award is not a foreign judgment (Under

ADR Rules) Zamboanga Barter Goods:

o N.B. Rule 65 is not an appeal. It is a special civil action.o Being one, RTC, CA, and SC have concurrent jurisdiction.

When you discuss concurrent jurisdiction, you cannot avoid discussing hierarchy.

o But when you talk about appeals, no need to consider hierarchy. The law already makes a decision for you.

Actions

What are the kinds of actions?o Civil

Protection or enforcement of a right, or prevention or redress of a wrong

Two types? Ordinary Special

o Criminal Once the information is in court, only then does it

become a criminal action, that has already been prosecuted by the State through the prosecutor.

o Special proceedings Establishes a right, status, or condition

Are civil actions always based on a cause of action?o No.

Distinguish ordinary civil action from special civil action?o There is Cause of Action in ordinary civil action.o Ex. Special Civil Action – like declaratory relief does not need

cause of action Requisites of cause of action?

o 1. Right of one partyo 2. Obligation of the other to respecto 3. Breach – MOST IMPT!

Is splitting cause of action a ground for MTD?o No it is Res Judicata and Litis Pendentia

Can there be joinder of cause of action?o Yes.o BUT it is not mandatory.

Does there have to be just one breach or numerous violations?o Numerous.o For every cause of action, there is one breach.o For as many breaches as there are, there are as many causes

of action. If there is a claim for sum of money, and several claims for

damages (moral, exemplary, etc.) – are there multiple causes of action?

o No. Just one, because claims for damages are incidents of the one breach (failure to pay).

There are three promissory notes, with amounts of 50K, 100K, and 200K, and there is just one loan. There was failure to pay. How many causes of action do you have?

o Three PNs, three causes of action. Can there be joinder of alternative causes of action?

o Yes. Example is shipping of goods. First cause of action is based on breach of shipping contract. In case it is void, the alternative is to sue based on quasi-delict.

If you join cause of action should it arise from the same series of transactions, or can it be totally unrelated?

o Scenario 1: X versus Y (just two parties). Can join as many causes of action, even if totally unrelated.

o Scenario 2: X versus ABCD (multiple defendants). Can only join the causes of action if it complies with the rule on PERMISSIVE JOINDER (series of actions arising from the same facts or law – Rule 3 Section 5)

Can you join ordinary civil actions with special civil actions?o No.

Can you join two special civil actions?o No. Because they have their own special rules.

Can you join recovery of sum of money and ejectment?o No. Ejectment is summary proceeding, so it has its own rules.

What is the totality rule?o When all of the claims are claims for sums of money, even if

one claim falls under the jurisdiction of the MTC but the rest may fall under the RTC, what controls is the sum of all claims.

o But you cannot do this when not all are for sums of money. There is a sum of money claim and recovery of property in Cavite.

Can you join the action in Cavite?o Note: sum of money is determined by amount (personal).

Recovery of property is determined by location of the property (real).

o N.B. as well that venue is not jurisdictional in civil cases, unlike criminal cases. Note as well that venue is waivable.

o Answer: Theoretically, you can join. But the other party is expected to file a motion to dismiss on the ground of improper venue. FOLLOW THE GENERAL RULE: The higher court absorbs the claim (RTC > MTC).

What is the rule on jurisdiction over counterclaims?o In the RTC, there is no limit to the counterclaim. In the MTC,

the counterclaim is limited to the jurisdiction of the inferior court.

o What happens to the balance? It’s lost. So it’s better to file a separate action in this

scenario. Is misjoinder of cause of action a ground for its dismissal?

o No, it will NOT cause dismissal of the principal action. It is severed and these proceed with separately. Although there can only be separate proceeding when

there is separate filing.o The court is not duty-bound to proceed with it, especially when

it appears that it has no jurisdiction. What is a special civil action?

o Covered by special rules.

Parties

Who can be parties to an action?o Natural personso Juridical personso Those authorized by law

What is the general rule?o All those with capacity can be a party.o For natural persons, that is the age of majority.

Can a six year old boy be a party?o Yes, but with assistance of parent, guardian, or guardian-ad-

litem.o A minor can sue, a minor can be sued if assisted.

What is the rule on married parties?o Sue and sued jointly.o What are the exceptions?

Judicial separation of property Abandonment Exclusive property of spouses Involving practice of profession

What if the natural person is incapacitated?

o Can sue and be sued, but must be assisted.o What if the person becomes incapacitated (supervening

incapacity), will the case be dismissed? No. Sec. 18 provides that the court will provide

assistance. When can we say that a juridical person has capacity?

o Duly incorporated and registered with the SEC. [Mild segue into summons] If the defendant is a natural person, how

do you serve summons?o Priority is personal service. It must be served to the persons,

wherever he may be found. (Ex. The “James Yap” rule – they tried serving it to him in Araneta)

o If he cannot be found, substituted service to a a) person of sufficient age and discretion and b) residing therein. Either residence or office.

What is “sufficient age and discretion”? Recent ruling says age of majority.

Should not be a transient. Must reside therein. Can a foreign corporation sue and be sued?

o If it’s an isolated transaction, a foreign corporation can sue and be sued.

o If it’s doing business but not licensed, it CANNOT sue, but can be sued.

o If it’s doing business and is licensed, it can sue and be sued. Service of summons to a domestic corporation?

o Rule 14, Sec 11 How do you serve summons to a foreign corporation?

o Resident agent – one named to receive summonso Representatives and officers found in the Philippines (if it has a

branch, for instance) What is a non-juridical entity? What is the rule? (Ex. Toro Boys)

o No separate juridical existence.o They can be parties, as defendants, and named as such

(under the name under which they are generally and commonly known).

o They CANNOT institute an action as a non-juridical entity. They have to institute it individually.

How do you serve summons to a non-juridical entity?

o To anyone or person in charge of the office. Who are those authorized by law? Give examples.

o Political partieso Labor unionso Archdioceseo Estate

How do you serve summons?o Depending on the entity – they have different rules.

Can you serve summons to a natural person in prison?o Yes. Serve it to the warden.

For public corporations?o Province – executive head (governor)o City – city mayoro Municipality – municipality mayor

Who is a real party in interest? o A party who stands to be benefitted or prejudiced by the

judgment. Does the concept extend even to defendants and third party

plaintiffs/defendants? What about an intervener?o The law does not limit it to plaintiffs only – it uses “party” as a

generic term, so it can encompass any party impleaded, if he will benefit or be injured.

Does this concept of real party in interest apply to all cases?o No. The concept of real party in interest will only apply to

private suits.o Does it apply to a taxpayer suit?

No. Locus standi applies here.o Does it apply to criminal cases?

[Not answered, but I think not]o What is the difference from legal standing/locus standi?

This is from public suit filed by a private party. There is a broader policy concern here, even if there can be benefit or injury as well.

o A Congressman does not believe in the act of the President, so he questions it as part of his legislative prerogative. Is he a RPII?

No. Locus standi applies as well. Thus, differentiate RPII from locus standi:

o Locus standi pertains to acts of government. By reason of this act, you suffered injury.

o You do NOT use legal standing in private suits. Only in public suits.

Who is a necessary party?o A) They are not indispensable, B) but ought to be joined if one

needs complete determination of the case. Who is an indispensable party?

o If not impleaded, there can be no final determination.o N.B. The codal does not use the word “complete.” So they are

compulsorily joined. What if there is a suit against joint debtors?

o The other parties not sued are necessary parties.o Can you sue one of them only?

Yes. The court can issue a valid judgment, although not complete.

o Can you then proceed against the other one, though not impleaded at first?

Yes. What if there is a solidary obligation, not joint? Ex. X and Y

solidarily owe Z PHP 100,000. Z sues.o [Neither necessary nor indispensable (?)]o Can you sue X only?

Yes.o Can there be judgment?

Yes, because the obligation is joint and several (solidary).

o Can you sue Y later on, having recovered from X? No, because you recovered already.

o Can you sue at the same time? Yes. The case can proceed against either, or both.

There is an action for recovery of title AND possession. X holds title; Y has possession of the property. The action is just for recovery of title. Can you sue X?

o Yes, because X is the proper party. Same facts. Can you sue Y for recovery of title, without suing X?

o No. Y is a mere possessor. The court cannot render judgment without impleading X. X is an indispensable party in this case.

What is the failure of failure to implead?o If it is a necessary party, the general rule is that failure to

implead is non-prejudicial. There is no waiver of right to implead. There is no waiver UNLESS there is an order to implead from the court.

o If it is an indispensable party, the court should order that the indispensable party be impleaded (Domingo). If despite this order to implead, the plaintiff did not comply, the case should be dismissed.

o What if the court did not notice non-joinder, and thus did not order to implead the indispensable party, and renders a decision?

The judgment is null and void. When is there substitution of parties in a civil case? There are

three.o 1. Death

Who should die? Any party. The law does not distinguish.

This is the most common.o 2. Change of holder of public position (death, resignation,

removal, cease to hold position) This is a very limited application, since it just applies

to public officers.o 3. Transfer of interest

What are the requisites of substitution by death?o 1. A party dieso 2. The pending action is not extinguished by reason of death

(IMPT)o Why does the law need to say this?

Because there are actions that are extinguished by death. Examples are actions that are purely personal to the party

Give examples. Ex. Contract for Michael Jackson to sing in a

party. Ex. Receipt of a widow of support. When

she dies, the support from widower’s estate is gone.

What is the duty of the counsel after death?o 1. Give notice of death of the party within 30 days.

When is the 30 day period counted? From the FACT of death, and not from the

knowledge thereof.o 2. Give names and addresses of the legal representatives

Who should be legal representatives? Legal heirs, administrator, or executor N.B. The law provides for legal heirs,

because there is procedure to be done before appointment of administrator or executor (ex. probate of the will for the latter).

o 3. Court orders substitution and for the substitute to appear There is action of A and B against C, D, and E. What if E dies?

o The counsel of E names a substitute. The court will then act accordingly.

Same facts. However, there was no successful substitution (i.e. the duties were not complied with). What happens?

o There can be a valid judgment, but only against C and D.o There can be no valid judgment against E.

Same facts. No substitution of E either. But C and D are incidentally, heirs of E. Can there be a valid judgment as to C and D? Is there a need for substitution?

o There is still a need for substitution, even if C and D are already parties. That C and D are incidentally E’s heirs as well does not change the result.

o This is the Brioso case. There is valid judgment only against C and D. It is wrong to say that C and D automatically substitute for E. There are other heirs who are affected by this improper “automatic” substitution.

o [Non-recitation question – what is the effect if E is necessary? If E is indispensable?]

Relate the provisions above. If necessary, you can subsequently file a suit against E’s heirs to complete the judgment. If indispensable, the judgment is null and void, even against C and D.

What are the requisites for substitution of public officer?

o 1. Removal/death of public officer and appointment of successor within 30 days unless otherwise provided

o 2. Successor adopts, continues, or threatens to continue the action sued against

o 3. There is substantial need to continue the action Substitution is no automatic. What are needed to be done to

substitute the new public officer?o 1. Give notice to the new public officero 2. Opportunity to be heard for the new officer

Mere fact that he is inclined to continue the action of the predecessor is not enough

Give an example of transfer of interest.o A sues B for judgment for sum of money based on contract. B

assigns the contract to C and C accepts.o Can the case continue against B despite the transfer of

interest? Yes.

o Can the court order that C be impleaded? Yes. But there is no substitution here. C is just

joined.o How then can there be substitution?

The court has to order a substitution, not mere impleading. BOTTOM LINE: there has to be a court order.

In case of death of a defendant in a sum of money case, will there be substitution? (VERY IMPORTANT)

o Section 20. It will NOT go to the heirs, but it will continue against the estate. (Remember Succession!)

o This is the special rule against sum of money cases.o Ratio for this?

Because you ultimately deal with the executor or administrator anyway.

But it’s wrong to say there is substitution, because the law does not mandate it.

o This position is further supported by Rules 86 and 87.o What are the requisites for this rule to apply?

1. The DEFENDANT must die 2. It must be a sum of money case based on contract

o What if the plaintiff dies? The general rule will apply, even if it’s a sum of

money case. Indigents – Algura v. Local Government of Naga: Resolves the

apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19.o If the indigent fits within the parameters set by Rule 141, Sec.

19, then the court must declare him to be an indigent. What is the Rule 141 requirement?

Gross income + family income does not exceed twice of monthly minimum wage

And owns real property whose FMV is less or equal to PHP 300K

o If he doesn’t, he falls under Rule 3, Sec. 21 and must apply for indigent status. (“Indigency test”) Here, the court exercises discretion as to whether you are an indigent or not.

o So can a person owning real property with FMV of PHP 300,001 be declared an indigent?

Yes, but under the indigency test. If you are declared an indigent, you do not pay filing fees. But

what happens when there is a judgment?o There is a lien, as regards filing fees.

What is the rule on stenographic notes?o It is free. There is no lien on the judgment.

What happens when the court finds out you are not an indigent?o The court can require you to pay.o What if you refuse to pay?

The court can order execution.o What if you fail to pay or ignore the execution?

The court can dismiss the case, for failure to comply with an order of the court.

Planters v. Fertiphil:o Planters did not pay appellate docket fees. But this was in

1992, prior to the 1997 Rules on Civil Procedure, which began the requirement of appellate docket fees. The 1997 Rules must not apply retroactively.

Atlantic Erectors:o Collection for sum of money over construction project over

property. The plaintiff attempted to make an annotation of lis

pendens on the title of the property. HELD: You cannot do this. This is an action in personam, not in rem, as regards the property.

o A notice of lis pendens will only lie if it is a right, title, or interest over real property. Outside of this, you cannot avail of a notice of lis pendens.

Diaz:o Rule 43, up to the CA. Attached duplicate of decision, but not

pleadings. This is enough for CA to give due course to the petition.

PDIC:o The main case is for declaratory relief (SCA). The question is

whether there can be execution of such (yes). There can also be a counterclaim, even if declaratory relief is an SCA and the counterclaim is an ordinary action.

Tolentino v. Natanauan:o There is no res judicata between recovery of possession and

nullity of deed of sale.o Requisites of res judicata?

A) Former judgment final B) Court had jurisdiction C) judgment on merits D) Identity of parties, subject matter, causes of action

Venue

Do not make the mistake of confusing venue and jurisdiction in civil procedure. Jurisdiction is the power given by law to hear, try, and decide cases. Knowing what court is one thing, but knowing where to file it is different.

There was an agreement to development of a piece of land in Tanay, Rizal to become a memorial park. The duty of the owner (living in Quezon City) of the piece of land is to provide property. The duty of the developer (located in Pasig) is to dig up the land, put drainages, etc. The owner of the land died, and the heirs are now substituting for their father. They want to rescind the agreement to develop. Where do they file?

o There are two steps in venue problems. First, determine: is it a real action or a personal action?

It’s a personal action. It involves rights and obligations of parties, although the subject matter involves land.

o Where do you file it? At the option of the plaintiffs. Either in their principal

residence (Quezon City) or the defendant’s (Pasig)o Which court has jurisdiction?

RTC, because it is an action incapable of pecuniary estimation (rescission)

Aileen Marcos case:o In cases where there are several plaintiffs and defendants, the

codal provides the word “principal” before plaintiff and defendant, so that the plaintiffs will not file the case before far-flung or inconvenient areas.

o In this case, Aileen Marcos is filing a case to enforce a trust, and some nominees live in Batac, Ilocos. Marcos lives in Makati. She filed in Batac.

o HELD: Should have filed in Makati, because she is the principal plaintiff.

Where do you file an action for extra-judicial foreclosure?o Extrajudicial foreclosure of mortgage is NOT a judicial action.

It’s not covered by the Rules of Court, but Act 2135. For purposes of EJ foreclosure, it should be filed where the property is located.

o But the mere filing and payment of fees (for multiple properties in various areas0 can be paid in one office, as long as it can be established that it covers all areas. But the actual sale will only be done in the place where the properties are located.

What about judicial foreclosure?o Rule 68 does not provide for venue for this SCA. But it is filed

where the property is located.o But if it is for collection of a sum of money, file it as a personal

action. Where do you file an action for nullity of marriage?

o RTC where the plaintiff resides, where the defendant resides, or where their conjugal home is located (special rule in Family Courts issuance)

What should be your first consideration? What is the general rule?

o Rule 4 (rules of venue) applies in general, UNLESS a specific law provides otherwise.

On specific venues, as provided by law –o Give an example.

Actions for Quo warrantoo What if you want to file an action for perpetuation of

testimony? This is covered by Rule 24 (deposition before action

or pending appeal). Special rule: Place of residence of any expected

adverse party or defendanto What about adoption?

Where the prospective adoptive parents resideo What about probate?

Where the deceased last resided at his time of deatho Writ of habeas corpus on residence of minors?

General rule: RTC where the minor is supposed to be found

Thornton: But if unknown or cannot be found, in the CA or SC

Can the parties stipulate on venue?o Yes, they can.o In an ejectment case, the property is located in Cebu.

Plaintiff resides in Makati, defendant in QC. Where do you file it?

In the MTC of Cebu. Residence in general does not matter.

o What if I file it in Makati? Yes. But what will you expect?

Motion to dismiss on the ground of wrong venue, coming from the defendant.

But what if there was no motion to dismiss, and in the answer, there was no allegation of improper venue?

There is waiver on the rules of venue.

Remember Rule 9, Section 1. This is the general rule on waivers and objections on grounds not raised in an answer or MTD. Failure to raise these grounds in MTD or answer is a waiver. Exceptions:

o 1. Lack of jurisdiction over the subject mattero 2. Litis pendentiao 3. Res judicatao 4. Statute of limitations

What is the distinction that you have to make as to stipulations?o If there are no words of exclusivity, then it is only an additional

venue.o If there are words of exclusivity (ex. “can only be filed in Cebu,

waiving all other venues”), then you can only file it there.o (PBCom v. Lim is an example of a case with restrictive words)

In this case, the stipulation on venue in the principal agreement (PN) applies to the accessory contract, which is the surety agreement – which cannot exist without the prior agreement.

What if there was no Motion to Dismiss and no answer filed? Apparently, the defendant did not notice the improper venue, or he decided to waive it. Can the judge later motu propio dismiss the case after noticing that the venue is wrong?

o No, he cannot motu propio dismiss the case on the ground of improper venue. (Gumabon)

Distinguish between wrong venue and lack of jurisdiction (ex. wrongly filing an ejectment case in the MTC.) Here, while the rules on summary procedure include MTD as a prohibited pleading, an exception is lack of jurisdiction (contra. wrong venue).

What is the local version of forum non conveniens?o Prohibited forum shopping (Read Bank of America)

Summary procedure

1. Filing of the complainto In summary procedure, after filing the complaint, what can

the court do? A) Dismiss the case outright B) Issue summons

o What is the responsive pleading? Answer. Can you file a MTD?

In general, no. It is a prohibited pleading. When do you file the answer?

10 days, not the usual 15.o Can the plaintiff file a reply?

No. It’s also a prohibited pleading.o What if there is no answer?

The plaintiff can file a motion for the court to render judgment.

A motion to declare the defendant in default is a prohibited pleading. Just ask the court to render judgment.

o After the filing of the last pleading, move on to next stage. 2. Preliminary conference.

o Take note, in SP, it is NOT pre-trial but preliminary conference.o When does the court set this?

Period of 30 days.o What happens here?

The parties can compromise, identify issues, etc.o Can the court render a judgment based on what was

presented in the preliminary conference? Yes, the court can, if it is convinced at this point in

time.o Assuming there is no judgment in steps 1 and 2, move to the

next step… 3. Submission of judicial affidavits or position papers

o Is there a hearing in summary proceeding or trial? No hearing, no trial.

o Within how many days do you submit affidavits? Within 10 days

o Can the court render judgment? General rule: 30 days from the filing of the last

pleading NOT submission for resolution, but

submission of the last pleading

Exception: 15 days, if the court asks for further clarificatory documents

What are the prohibited pleadings?o 1. MTD

Except lack of jurisdiction over subject matter Or failure to refer to lupon

o 2. Replyo 3. Bill of particularso 4. MR or MNTo 5. Petition for relief from judgmento 6. Motion to declare in defaulto 7. Third party complainto 8. Memorandao 9. Dilatory motions for postponement

Does this cover motion for cancellation of hearing?

If is not dilatory. But be careful with this, because the judge has to determine first if it is dilatory.

o 10. Motion for extension of timeo 11. Petition for certiorari, mandamus, prohibition against

interlocutory orders of the courto 12. Interventions

Jalique v. Dandan:o This is a case where the respondents filed a joint counter

affidavit in an ejectment case, rather than a response. The MTC decided in favor of plaintiff. RTC affirmed. CA moved to have the case remanded to MTC for re-hearing.

o HELD: Valid action by CA. The court interpreted the rules on summary proceeding liberally here, because there was presence of a responsive pleading anyway and there was challenge of the material allegations of fact in the complaint. So the MTC should have considered it.

Bonifacio v. Bellosilloo The judge was sanctioned here, because there was no

answer, and instead of promulgating judgment, he still called for a preliminary conference.

Pascual v. Jovellanos

o The defendant filed a Motion to Strike Out instead of an answer, which was, in reality, a motion to dismiss. The judge should not have granted this.

Boy v. CA:o May the MTC pass upon questions of ownership in an

ejectment case? YES, only provisionally and for the purpose of

resolving forcible entry/unlawful detainer cases. This is a power granted by BP 129.

Macasaet v. Macasaet:o In the preliminary conference, representatives appeared on

behalf of the original parties (as attorneys-in-fact). This special authorization is a valid cause for someone else to appear in the plaintiff’s or defendant’s behalf.

o What happens when the plaintiff is absent in preliminary conference?

Case is dismissedo What happens when the defendant does not appear?

As if he didn’t file an answer. The court can render judgment.

o What is the stopgap? Have an explanation OR send a representative

o Where does this rule come from? Provision on authorization does not appear in the

rules on summary procedure. But the SC applied to Rule 70 suppletorily, the rules of Rule 18 on pretrial and appearance by representative.

Small claims

What should a plaintiff file?o 1. Statement of claimo 2. Together with certificate of non forum shoppingo 3. Authentic copies of document from which the action stems

from (actionable documents) Who signs the statement of claim?

o The claimant. No need for the lawyer.

o [Atty. Salvador: maybe this special rule is for bar flunkers to practice, because the claimant still needs to file certain documents he may not know how to execute]

What happens after?o Court files notice for defendant to submit responseo Defendant has 10 days to file a responseo What are the formal requirements?

There is already a form provided for the plaintiff and defendant to fill in.

They just need to attach documents.o Can there be a counterclaim in a small claim action?

Yes. And then? [review/cross-check these rules]

o The parties can decide for amicable settlement or judicial dispute resolution (JDR)

o Can a claimant apply as an indigent litigant? Yes. (Aldura)

o Will there be presentation of evidence? Yes, but it is not a strict and formal trial. You can only

present the evidence attached to the claims.o Is there a preliminary conference?

None mentioned.o Do the parties have to appear?

Yes, or at least their representatives. Failure for the plaintiff to appear leads to dismissal without prejudice of the claim. Failure for the defendant to appear has the same effect as not filing a response.

What happens after JDR?o In a multi-sala court, the executive judge refers to the pairing

judge for hearing and decision within 5 working days from referral

o In a single sala court: Pairing judge hears and decides the case in the court of origin within 5 working days from referral by JDR judge

Are there prohibited pleadings?o Same as summary procedureo Except in MTD, only lack of jurisdiction over the SM is the

exception. Failure to refer to the lupon is not an exception.

Can it be appealed?o No. By express provision, it is final and executory.o What then, is the remedy?

Rule 65 (petition for certiorari) – because there is no plain, adequate, speedy remedy

Pleadings

What must be in the complaint?o Claims a cause of actiono Must contain allegations – brief and concise statement of

ultimate facts, devoid of evidentiary matters You can also allege as to fraud, mistake, malice,

illegality, condition of the mind, etc. As to matters of fraud, how must it be alleged?

o With particularity As for mistake, how must it be alleged?

o With particularity If it’s a condition of the mind (malice, intent, knowledge, etc.)?

o Generally You can also base your claim on an actionable document. How to

do you allege it?o 1. You can attach or append the document

To show the court that this is where your cause of action arises

o 2. You can reproduce the contents of the document in the pleading en toto

(But in practice, just always append anyway) How do you deny an allegation under an actionable document?

o Specifically denied, under oatho What is the exception to when you need to specifically

deny under oath an allegation from actionable document? 1) When the adverse party is not a party to the

instrument 2) When there is an order for inspection and it is

refused What is the effect of failure to specifically deny under oath an

actionable document?

o It is an admission ONLY as to the genuineness and due execution of the actionable document

But what about the rights and obligations of the parties arising from that document?

o It is up to the court to determine it.

What is the period to file an answer?o 15 days after service of summonso Could it be 30 days after receipt of summons?

For foreign corporation and service is done to government official designated by law

What are the defenses available in answer?o 1) Affirmative defense

If you only hypothetically admit, without raising any defense, what happens?

In this case, there is no more issue. This will lead to a judgment on the pleadings (Rule 34)

This occurs when the answer does not tender an issue or admits the material allegations

o 2) Negative defense Specific denial of facts alleged essential to the cause

of action. What are the kinds of specific denial?

1) general denial 2) specific denial 3) disavowal of knowledge (lack of

knowledge and belief to form a specific denial)

Is the counterclaim or cross-claim in a separate pleading?o No.

What is a compulsory counterclaim?o Arises out of the transaction constituting subject matter of the

action What is a permissive counterclaim?

o Arising from an event unrelated.

What is the period to answer a counterclaim?o 10 dayso (In practice, you only answer a permissive counterclaim. In

practice, a compulsory counterclaim is not answered.) What is a cross claim?

o Made against a person/party on the same side. Can there be a counterclaim defendant cross claim?

o Yes. The counterclaim defendant is the original plaintiff. He can file a cross claim against a co-party.

Is there a period to answer a cross claim?o 10 days

Do you need leave of court to file a counter or cross claim?o No, whether it be a permissive/compulsory counterclaim or a

cross claim, no. For a third party complaint, do you need leave of court?

o Yes . You cannot just file a third party complaint.o Who is usually the third party plaintiff?

The defendant in the main case, who feels that he should file a complaint against someone that court has yet to acquire jurisdiction from.

This is the reason why there is need for leave of court. You need to have the third party impleaded.

Why would you want a third party complaint? To contribute or indemnify

o Classic case: car crash a hit b hit c. C sued B. B sued A for indemnification.

Subrogation Any other similar ground

o What is the period to answer a third party complaint? 15 days, because it is treated as an entirely new

complaint

Is the reply a mandatory pleading?o No.

What is the period to file a reply?o 10 days.

What do you do in a reply?

o To controvert the new matters raised in the answer What is the effect of failure to file a reply?

o All new matters stated in the answer are deemed controvertedo What is the reason for this?

[Didn’t answer] What happens after answer, etc?

o Pre-trial

Three important things:o Signature, verification, and CNFS

What is the effect of a lawyer affixing his signature in a pleading?o Indicates that he has read the pleading, and to the best of his

knowledge, the information is correcto And that the filing of the same is not for the purposes of delay

There are some pleadings that are left unsigned. What happens?o It has no legal effect at all.o Is there a way to cure it?

If counsel can show it is due to mere inadvertence and not for delay

o Will the court just give effect to the pleading or will it still require actual signing?

[Didn’t answer] If a lawyer changes his address, what is his duty?

o Inform the court. Failure to do so may lead to disciplinary action.

What are the contents of the verification?o That the affiant has read the pleading and the allegations are

true. Must it be under oath?

o Yes. Is it mandatory?

o No. Only when the law requires you to verify. Is it jurisdictional?

o No. Failure to attach is not fatal.o But why do the SC and CA dismiss cases for failure to

attach verification?

Although it can be cured, the court may dismiss a pleading for failure to comply with procedural requirements.

Who signs the verification?o The party filing the pleading.

Can the lawyer sign it?o General rule, no. Unless there is some compelling reason.o For example, the party’s father is to be buried on the day of

filing of the petition – the court allowed it.o Also, the distance of the petition from the counsel (ex. the

petitioner is in the USA and the counsel is in Manila, and there are only 15 days to file.)

Can a minor sign?o Must be assisted.

Can a married person sign by himself or herself?o One spouse is enough, but only if there is common interest.

(N.B. but see note below) For co-owners or those in the same residence?

o Signature of one is enough if there is common interest. (N.B. but see note below)

TAKE NOTE: The key when it comes to multiple parties, all of them have to sign. However, if there is a common interest among the parties, a signature of a number of them may be enough.

o BUT in practice, do not take chances. CNFS: What about a juridical entity? Who can sign?

o [Anyone, as long as authorized by a board resolution] What are the contents of the form?

o Plaintiff/principal party shall certify under oath that he has not filed a similar complaint involving the same issues in another court, tribunal, QJ agency

o If there is any other pending claim, provide statuso If he learns about similar action, report fact within 5 days to the

court Why does the law require that it is the party that signs?

o Because it is only the party, and not even the lawyer, that knows whether there is another action.

For those with no separate juridical existence, who signs?o All the parties, since there is no juridical personality.

What is the effect of absence of CNFS? (Note: non-compliance is different from absence)

o It will be dismissed. It can be re-filed because it is without prejudice.

Can it be amended to cure?o No, the defect cannot be cured by an amendment. Just re-file.

What is the effect of non-compliance? (Note: this occurs when there is a CNFS, but you did not respect your commitment under the CNFS)

o Indirect contempt (Failure to comply with order or process of court)

o Administrative and criminal cases (since you lied under oath)o Dismissal of the case

What if there is willful and deliberate forum shopping?o (Meaning, it’s not only false, but you also deliberately disregard

it)o Dismiss the case with prejudice

What kind of dismissal? Summary dismissal – cannot contest

o Placed in direct contempt without opportunity BPI v. CA

o There was a CNFS filed in the first place. What was not attached was the board resolution showing the authority of the Vice President to sign the CNFS on behalf of the company. This authorization was submitted on the MR.

o NOTE: There was a valid CNFS. There was liberal interpretation of this provision for these reasons.

Donatoo Here, the lawyer signed the verification, not the party. This

was validly excused by the court since the party was in the US, and could not sign the pleading in time given the 15 day period. There was physical impossibility.

o BUT as a general rule, the lawyer cannot sign. Young v. Seng

o There was no forum shopping, because the first case was dismissed due to lack of cause of action. When a case is dismissed because of that, it is without prejudice, and that party can file the same case again.

o Failure to disclose this fact is not a violation of the CNFS.

OSM Shippingo Requires a duplicate original or CTC for the decision being

appealed (here, NLRC decision) and not the prior one (Labor Arbiter in this case)

Tan v. Kaakbayo No need for a CNFS for a compulsory counterclaim

New Sampaguitao There was no forum shopping here, because the first case

questioned whether there can be a writ of execution when the parties agreed to compromise in the first place, when the court dismissed the initial case. The second case was whether the court approved the compromise agreement in the first place. These are different.

Solaro Is the rule on personal service mandatory?

Yes. The rule is priority is by personal service. If you cannot do it by personal service, you can do it by registered mail, but you have to make an explanation.

o In this case, it was made by registered mail and there was no explanation. For this reason, the decision of the court to allow it was based on its reasonable discretion. BUT this is not the rule.

Musao What are the material dates here?

Period only commences to run from date of receipt of the decision

Date of filing of the MR Date of receipt of denial of the MR

Amendments and supplements

There is amendment for civil cases and there is amendment for criminal cases.

For civil cases, amendment may either be:o 1) As a matter of righto 2) With leave of court

When is it a matter right?o Before an answer or within 10 days of service of replyo What do you need to file?

NOTICE to amend When do you need leave of court?

o After an answer has been madeo What do you need to file?

Motion to amend For criminal cases, the reference point is not an answer. Instead, it is

plea. Before plea, can you amend?

o Yes, whether as to matter of form or substance After plea, can you still amend?

o Yes, but only as to matters of form, for as long as it will not prejudice the rights of the accused

Don’t forget that last bit!o What is the test when it will prejudice the rights of the

accused, even if it’s a matter of form? If the original defense of the accused will not change.

What is “amendment to conform to evidence”?o This is section 5 of Rule 10o Allegations are found in the body of the complaint/answer.

What is alleged must be proven.o If the evidence you presented went beyond the allegations, you

may file a motion to amend the pleading to conform to evidence

There are two kinds of amendments to conform to evidence. What are these?

o First kind – no objection on the part of the other party. For this reason, it will be allowed even after judgment.

o Second kind – if the other party objects, the amendment is left to the sound discretion of the court.

Can you amend a complaint when it originally has no cause of action?

o If in the first place there is no cause of action, no amendment will cure such an absence.

o Can the court order an amendment even if there is no application to amend?

1. Yes, if it is a mere formal (typo) amendment 2. For bill of particulars, the court can either order

compliance OR an amendment

3. Motion to dismiss – the court can either grant, deny, or order an amendment

There was an amendment of an original complaint, which was the basis for the issuance of summons. If the original complaint is amended and that is granted by the court, is there a need for issuance of new summons?

o No, if you already lawfully obtained jurisdiction over the defendant through summons or voluntary appearance.

o It is a question of jurisdiction over the person, not a question of amendment.

o HOWEVER, if there are additional defendants, new summons must be served to them.

What is a supplemental pleading?o A pleading filed in addition to a prior one that has been filed,

pursuant to new transactions, occurrences, or events that have arisen.

o Can there be a supplemental complaint? Yes

o Can there be a supplemental answer? Yes

o Can there be a supplemental reply? Yes

o Can there be a supplemental petition? Yes

So what is the general rule?o You can file a supplemental pleading as long as there are new

transactions, occurrences, or events that occur after the filing of the first pleading.

o What is the exception? Usually you cannot do this to the Supreme Court,

because you cannot file something to it unless it asked for it. You would be asked to explain why you are submitting such.

What is the difference between amendments and supplements?o Amendments pertain to events, transactions, or occurrences

that exist during the filing of the original pleading, but were not placed in the pleading. There was just an omission.

May be filed without leave of court (before responsive pleading)

o For supplements, the events, transactions, or occurrence only arose after the filing of the original pleading.

Always with leave of court

Default

N.B. 1: What is the rule on objections?o General rule: all objections on grounds not raised in an answer

or motion to dismiss are deemed waived.o What are the exceptions?

1. Lack of jurisdiction over SM 2. Res judicata 3. Litis pendentia 4. Prescription

o What is the fifth exception provided by jurisprudence? 5. Lack or absence of cause of action

This is different from Rule 16 (that the pleading states no cause of action)

N.B. 2: What is the rule on failure to allege a counterclaim?o Any compulsory counterclaim or cross claim not set-up: barred

forevero In special proceedings – a claim against the estate must

be made in the period provided for in the notice. Otherwise it will be forever barred. What is the exception?

If there was a suit started by the estate against you, the claim can be raised as a counterclaim.

N.B. 3: How many kinds of default do we have?o 1. In actions in rem, there is a general order of default.

There are no defendants, so notice is made to the public that all oppositors have to come forward and object. Otherwise, forever barred.

o 2. Failure to attend during pre-trial Called “as in default” in the 1964 Rules of Court If the defendant fails to attend, the plaintiff can

present evidence ex parte When do you know when a party is in default?

o 1. Did not file responsive pleading

o 2. There is proof of such failure You have to show the return

How can you set aside an order of default?oo 1) File a motion on any of these grounds:

1. Fraud 2. Accident 3. Mistake 4. Excusable negligence

o 2) It has to be under oatho 3) State that you have a meritorious defense, without

necessarily giving an answero What kind of fraud is needed?

Extrinsic fraud.o Is the fraud needed here the same fraud needed for motion

for new trial, petition for relief from judgment, and motion for annulment of judgment?

YES. For all of these, you need extrinsic fraud. How do you set aside an order of “as in default” [or allowance for

plaintiff to present evidence ex parte for the plaintiff]?o Saguid: Remedy is to file an MR or relief from order of default

also on the ground of FAMEo Do you have to add that you have a meritorious defense?

No need. You’re already in pre-trial. Can there be partial default?

o Yes.o In a case where you file a case against A, B, C, D, and E. E

did not file an answer, while A to D did. Will A to D be allowed to present evidence?

Yes.o Will E be allowed to present evidence?

No. He is in default.o Can A to D’s evidence be used against E or in favor of E?

Yes. In fact, E can still win the case along with the others.

Can the court render a judgment after an order of default, without presentation of evidence ex parte?

o Yes. This is a new provision introduced only in the 1997 Rules of Civil Procedure.

o This has not been asked in the Bar examination yet. So be careful.

Where can there be no order of default?o 1. Nullification/annulment/legal separationo Can there be default in Summary Procedure?

No. When there is failure to file answer, there can be judgment rendered by court.

o 2. Certiorari, Prohibition, etc. Some SCAs require a comment, so there can be no declaration of default

Are there SCAs where there can be declaration of default?

Yes, like interpleader where the special rules are deficient so there is suppletory application of the ROC

Cerezo v. Tuazon:o Order of default – failure to submit an answer, so the

defendant is declared in defaulto Judgment by default – after the defendant is given notice of the

court processes, the court renders a decision without hearing defendant’s defense, which he lost

o Remedy for an order of default? Motion to set aside or lift an order of default based on

FAME (under oath, and you have to show you have a good defense)

SSS v. Chavez: This must be accompanied by a verification (under oath), affidavit of merit (that you have a good defense), and notice of hearing. If this is missing, the motion is lost.

o Remedy for a judgment by default? MR or MNT (FAME) within period for filing an

appeal After the reglementary period (i.e. when there is entry

of judgment) Petition for relief from judgment 6 months from entry of judgment AND within

60 days from knowledge If there is GADALEJ, Rule 65 certiorari

Remington Steel:o When there are multiple defendants, even if one has already

answered, you may amend the complaint as a matter of right as to the other – since there is no defense yet that would be affected or altered by the amendment.

Philippine Export and Foreign Loans:o When it is a dismissal without prejudice, appeal is not a

remedy. Your remedy is to re-file a case or file for a petition for certiorari.

o Amendment to conform to evidence – What if it was not allowed, but the evidence was proven, can there be a valid judgment based on that evidence?

Yes. It is valid, even if it is not consistent with what was alleged.

Bill of particular

Can there be Bill of Particulars in criminal cases?o Yes. Rule 116, Sec. 9.

Only four things to remember in BOP:o 1. What is the definition of BOP?o 2. What is the period to file a BOP?o 3. What is the action taken by the court in BOP?o 4. What is the consequence of failure to comply with order to

file a BOP? When you file for a BOP, what do you want to achieve?

o A more definite statement of facts that appear in the complaint that are not averred with sufficient particularity

o You are to identify the defects and the details desired. Can you file a motion for BOP after an answer has been filed?

o No more, because issues have already been joined. What is the effect of filing a motion for BOP on the period?

o The period is interrupted upon filing, but you always have at least five days to file the answer after.

Deadline to file an answer is December 15. You filed a motion on December 5. How many days do you have?

o TWELVE, not eleven. You don’t count the day causing the interruption. [VERY IMPT]

o This is the same way you count a motion to dismiss. [Same facts] If you filed a motion for bill of particulars on

December 14, the motion is interrupted. How many days do you have?

o You still have Five days. What action can the court take on a BOP if you fail to comply?

o 1. Motion to strike outo 2. The case can be dismissed (Virata v. SB) – Rule 17, Sec 3:

non-compliance with court order What if the person fails to file an answer in the time left?

o Will be declared in default

Service and summons

Filing

What are the modes of filing?o 1. Personalo 2. Registered mail

Can there be filing by ordinary mail?o None. Because here there is no way the court can find out

when you filed it.o But there can be service by ordinary mail.

What are the requirements for personal and registered mail?o PERSONAL: Stamped, dated, and signed by the clerk of court.o REGISTERED MAIL: Pay for registry receipt and you have to

accomplish a return card What is the proof that you personally filed?

o Primary: if the pleading is found in the records of the court.o If it does not appear, you can present the received copy

What is your proof of registered mail filing?o Registry receipto Affidavit of the person mailingo Return card

Service

What are the modes of service?

o 1. Personalo 2. Registered mailo 3. Ordinary mail

What does rule 14 cover?o 1. Covers party serving to another party,o 2. party serving to court,o 3. and the court itself serving notices (section 9)

If the person to whom you are serving is not available, then how do you file substituted service?

o Delivery to the clerk of court with proof of failure of both personal service and service by mail.

o There should be proof of both failure of personal service and service by mail.

o [This is different from substituted service of summons] How do you prove service by ordinary mail?

o Affidavit What is completeness of personal service?

o Actual delivery What is completeness of registered mail?

o Actual receipt or 5 days after notice of postmastero whichever comes first

What about ordinary mail?o 10 days after mailing

What are the proofs of personal service?o Written acknowledgemento Affidavit of the person servingo Official return of server

This refers to service by the court What are the proofs of registered mail?

o Registry receipto Return card

What are the proofs of ordinary mail?o Affidavit of person serving

What if I used registered mail, but I got back the return card ALONG WITH the document itself (showing it is unclaimed). What do you do to prove delivery?

o You have to file the return card plus the unclaimed document, plus before you file, secure a certification from the post office.

Take note that a return card is required by law to be filed, but in practice, we do not.

What is the priority of service?o Personal service is always preferredo What is the effect of filing by registered mail?

Put an explanation why you did not serve it through personal service

o What if you don’t comply? As if the pleading was not filed.

Service of pleadings should be made to whom?o To the counsel, if the party is represented by counsel.

What if service was made to a security guard on the ground floor of a condominium building and your office is on the 3oth floor?

o You cannot. You have to serve it to counsel. What is Lis Pendens?

o In an action involving right, title, or interest over a property, you annotate it on the title of the property.

I file a case in the bureau of lands to declare null and void a title. Can this be subject to a notice of Lis Pendens?

o No. This is a quasi-judicial action. Notice of lis pendens only applies to judicial cases, not quasi-judicial. (Heir of Lopez)

Atlantic Erectors: You can only apply for Lis Pendens if the property is the subject of the action.

o Can you put a notice of lis pendens in a partition case? Yes.

Do you need court approval to effect a notice of Lis Pendens?o Not at all. Just send a memorandum to the ROD, even without

court involvement. When do you need court approval?

o When you intend to cancel the notice.o Grounds:

1) purpose is to molest other party 2) no need for the notice to protect the rights of the

parties who caused it Payongayong:

o Priority of service is ALWAYS personal. If you cannot do it personally, you give an explanation

o Same as filing – priority is personal. Otherwise, you give an explanation.

United Pulp:o Hypothetical – There is a principal who is out of the

Philippines, and he designates X as his attorney-in-fact. Can X sign the certification against non-forum shopping?

In general, he cannot. But in this special case, he can, because the principal is out of the country.

o What is the test? Mere representation is not enough. There must be a

specific authorization and clear authority given in the SPA that he can sign the CNFS.

Summons

Can personal service and substituted service work simultaneously?

o No. Personal service first, and this is the priority. You cannot have these simultaneously.

Where?o WHEREVER HE IS FOUND. Always remember the James

Yap rule. What are the requirements for substituted service? Under what

circumstances?o Only if personal service is IMPOSSIBLE.o Proof of this: defendant cannot be served summons after all

efforts have been exhausted. Is there a set of standards given by law on how

many times you have to try to serve? A case says that it must be at least three

times on two different days.o There has to be an explanation.o Where will the explanation appear?

In the sheriff’s return Summons must be served within reasonable time. What do you

mean by this?

o For the sheriff, 15-30 days according to jurisprudence. After the 30th day, the court will require the sheriff to submit the return.

o Why is this important? If you file a complaint and you don’t see to it that the

summons is served, your complaint can be dismissed for failure to prosecute.

What is alias summons?o If the original summons has been lost or the original summons

was returned to court, unserved.o Then you can apply for alias summons.

When do you talk about suitable age or discretion, to what kind of substituted service does this apply?

o To service at the residence. When you talk about suitable age or discretion for substituted

service, what do you mean?o There is nothing in the law that says there must be age of

majority but from Manotoc to Pascual, there is consistent jurisprudence that it must be age of majority.

Who must it be? Could it be a house helper?o She or he must reside therein. This must concur with “suitable

age or discretion.” So these are two elements.o A visitor or a transient cannot receive summons. But a house

helper can. For offices, to whom must it be served?

o To a a) competent person b) in charge.o Can a middle manager the same rank as Mr. X receive

summons for Mr. X? He must be in charge of receiving summons in the

office.o What does “in charge” mean?

In charge of the office. President or manager. For corporations, what is the special rule?

o President, General Manager, Managing Partner, Corporate Secretary, Corporate Treasurer, In-house Counsel

o Memorize this . It is a closed list. But for personal cases of an individual, will the office receive it for

you?

Can substituted service be served on non-residents?o No. None as a general rule. You cannot do substituted

service to a non-resident.o [Sec. 15 does not talk about this situation. Sec. 15 talks about

non-resident and cannot be found.]o Is there an exception?

Yes, but it’s very narrow. But there must a a) resident spouse b) who was previously appointed as attorney-in-fact.

In Secs. 14, 15, and 16: how can summons be done?o By publication.

Distinguish.o Section 14 : Defendant is unknown or his whereabouts are

unknown. How do you do this?

Just publish. Do you even have to try personal service?

No need for personal service (since you don’t know him or where he is).

In what kind of case? Whatever kind of action, whether in rem or in

personam – you can do it by publication, as clarified by the SC.

Not just in rem or quasi in rem anymore. How does publication in 14 differ from 15 and 16?

In 14, ONLY publication is needed. It does not require service by registered mail in the last known address.

o Section 15: Extra-territorial service Against who?

Against a defendant that does not reside in the Philippines and is not found in the Philippines.

In what subject matter? 1. Involving personal status of the defendant 2. Property of non-resident defendant 3. Property is attached

4. Where defendant has actual or contingent interest over property

What are the modes of service? 1. Personal service outside the Philippines 2. Publication AND service by registered

mail in his last known addresso N.B. Both must concur. Take note

of this. 3. Other modes deemed applicable by the

courto Section 16 : Temporarily absent

Can he be a resident of the Philippines? Yes. But he’s just temporarily absent.

What is the length of time needed here? None provided

How do you do serve summons? Any of those in Sec. 15. Add: Substituted service, if there is

impossibility and there are earnest efforts to serve.

What is the purpose of summons?o So the court can peg a date when it acquired jurisdiction over

the person. What is the proof of service of summons?

o Sheriff’s return. Note the rules on:

o Provinceso Prisons

What is the rule on voluntary appearance?o It is not equivalent to summons, but if there is voluntary

appearance, summons can be dispensed with. What is the rule on Motions to Dismiss?

o If you file a Motion to Dismiss, even if you join other grounds other than lack of jurisdiction, you are not deemed to have submitted to the jurisdiction of the court.

o Old rule: you have to separate the MTD based on lack of jurisdiction.

Maximo v. Montalban:

o In this case, his residence is known and he is just temporarily absent. So substituted service is not proper.

Samarino v. Ralu:o Here, the sheriff did not prove that facts and circumstances

that would allow substituted service (repeated failure to personally serve, etc.) – it must be shown in the sheriff’s return

Ancheta:o There are only a few remedies when the judgment is already

final and executory. Here, the petitioner filed a petition to annul the judgment based on lack of jurisdiction over the person (because “lack of jurisdiction” is used, it can cover both lack of jurisdiction over both SM and the person).

Gomez v. CA:o Does it mean that if you are talking about an in rem action you

can venture on trying to serve it personally? You can still do personal service, in case you find him

somewhere in the Philippines by chance.o Section 14 before limits itself to in rem or quasi in rem. It now

extends likewise to actions in personam.

Motions

What is a motion?o It seeks relief, but not a pleading.o It does not raise a claim, nor does it raise defenses in an

answer.o Does a motion to dismiss take the nature of an answer?

No, because it will not lead to a joinder of issues What does EVERY motion need to have?

o A notice of hearing.o Directed to whom?

To parties. But also give notice to the clerk of court (even if the

provision does not say it), because he schedules the hearings.

o Absence of a notice of hearing has what effect? The motion becomes a mere scrap of paper.

When must notice be given?

o The motion must be filed in court and served to the other party at least three days before the date of hearing. (Three day notice rule)

What is the ten day rule?o The hearing itself must be scheduled no later than 10 days

from the filing of the motion Ex. you file it December 6. The last date you can set

the hearing for is December 16.o Understand this along with the three day rule.

What is the Omnibus Motion rule?o Include all grounds available; or else, it is deemed waived.o What are these exceptions?

1. Lack of subject matter jurisdiction 2. Res judicata 3. Litis pendentia 4. Statute of limitations

What is motion day?o Friday afternoon.o If it is a holiday, set it on the next working dayo Is this mandatory?

Yes. But some judges apply the rule liberally. But since 2008, this rule has been applied strictly.

Motion to dismiss

What are the kinds of dismissal in Civil Procedure?o 1. There is a motion to dismiss in Rule 16, prompted by

defendant. – MOST COMMONo 2. But there is also a motion to dismiss in Rule 17, filed by the

very same plaintiff who filed. Rule 17 also covers failure to prosecute, which is

another form of motion to dismiss.o 3. Demurrer to evidence

What are the grounds in Rule 16?o 1. Lack of J over the SM

How do you determine subject matter jurisdiction?

It is the law that confers the right to hear, try, and decide a case

The most common source is RA 7691 amending BP 129

o 2. Lack of J over the defendant Look again into proper service of summons Or voluntary appearance

o 3. Improper venue Fall back to Rule 4, or special rule under law

o 4. No legal capacity to sue Minor – age of majority Corporation – must be duly registered with SEC Attorney in fact – look into scope of authority

o 5. Pleading Asserting the Claim States no COA (PACS-COA) Does not go into the falsity or truthfulness of the claim The pleading does not appear to state a COA

o 6. Res judicata What are the elements?

1. Final judgment 2. J over SM and person 3. Judgment on merits 4. Identity of parties, SM, cause of action

o 7. Litis pendentia Same as RJ, but without

o 8. Prescriptiono 9. Failure to comply with condition precedent

Ex. Failure to refer to Katarungang pambarangay Is this waivable?

o YES. Because it is not jurisdictional.

Ex. Earnest efforts to compromise Ex. Exhaustion of administrative remedies

Does this fall under this ground?o Some commentators say yes. But

some say failure to exhaust must fall under PACS-COA

o 7. PWEA (Payment, waiver, extinguishment, or abandonment)o 8. Unenforceable under Statute of Frauds

Of all these grounds, if the court dismisses, can it be re-filed?o ALLo Except – [F,H,I]

1. Prescription 2. Unenforceable under Statute of Frauds 3. Res judicata 4. Extinguish of claim or demand (PWEA)

When can you file a MTD?o Within the reglementary period. Fifteen days.

How do you count a period?o Just remember the rule on interruption. [Read up Bill of

Particulars portion.] There was MTD filed on basis of lack of J over the defendant. The

court, instead of dismissing the action, dismissing the MTD, or ordering amendment of the complaint, filed alias summons. Is this grave abuse of discretion?

o There was none. Instead of dismissing the case and waiting for re-filing, the court issued alias summons which will produce the same effect.

Preliminary hearing of the affirmative defenses. What is this?o You can file an answer, and the court has discretion to hold

preliminary hearing of your affirmative defenses and use it to dismiss the complaint. Thus, an answer can be treated as a MTD.

This is a new feature of the 1997 Rules of Court. This has never been asked in the Bar.

o What is the reason for this new rule? Note: a MTD is not a prohibited pleading, but when it

issues summons, the court persuades parties not to file an MTD, but to file an answer with an affirmative defense.

o Why is such court attitude? Because issues will be joined, and pre-trial sets in

where parties can compromise.o What is the difference between filing a MTD and an

answer? There is no preliminary hearing of defenses in a MTD.

If the court mistakenly denies your MTD, what is your remedy?

o Petition for certiorari on Rule 65 based on GADALEJ.o Does this petition for certiorari suspend the main

proceedings? No. Even if there is a pending petition for certiorari,

the main proceedings will not be suspended unless you obtain a TRO.

o The Eternal Gardens rule, which has been repeatedly abused, invoking judicial courtesy here, does not apply anymore.

o Can the Court of Appeals dismiss the case if it feels the RTC committed GADALEJ? Or should it only remand?

The court, subject to its discretion, can either dismiss or remand it. There is no hard and fast rule.

Dismissal of Actions

What are the ways by which a plaintiff can dismiss a case?o Filing a notice of dismissal any time before the answer is

served. Dismissal is a matter of right.o What happens to the counterclaim?

There is no counterclaim yet, because there is no answer.

o Can this case be re-filed? Yes. What is the exception?

Dismissed a second time under this section. What if there is already an answer? – See Pingga case

o File a motion for dismissal.o What happens to the counterclaim, if there is?

It does not get dismissed. Pingga limits the dismissal to the complaint, not the counterclaim. This abandoned BA Finance rule.

Does this rule cover both permissive and compulsory counterclaim?

Yes. This is why the provision says that within 15

days, the party would have to manifest its willingness to prosecute it in the same action; otherwise it will be prosecuted in a separate action.

Pre-trial

When is pre-trial conducted?o Rule 18 Sec 1 does not say, it just says that the ex parte

motion by the plaintiff to move the case for pre-trial must be done “promptly”

o BUT the 2004 guidelines say it must be within 5 days after the last pleading has been filed

What if the plaintiff fails to move for pre-trial?o The 1997 rules are silent. Before, dismissal was the

consequence, for failure to comply with Rules of Court. But this is not the consequence anymore, because of the 2004 rules, which gives a specific outcome.

o 2004 rules : DUTY OF THE CLERK OF COURT to move for pre-trial.

Before actual pre-trial, a few days before, what happens?o Preliminary conference before the clerk of court. It will be

recorded and will form part of the pre-trial record.o They explore possibility of compromise, etc.o This is almost like a mini pre-trial.

Expect two dates in one notice –o One setting the preliminary conferenceo One setting the pre-trial itself

On the first day of pre-trial – what is the order of the day?o The court issues an order referring the case to a court-

annexed mediator. Forward the records to him.o You have to pay fees for a mediator.o For the time-being, the pre-trial proceedings are suspended.o What is the period for suspension?

30-60 days. But in the same order, the court will say that if within

this period, there is no compromise, there will be resumption of pre-trial on a later day.

What if there is inability to compromise?o Records returned to court. The court will resume pre-trial.o The Judge with all “tact, patience, and impartiality,” endeavor

to… [Missed something]

Judge talks to counsel and parties Judge talks to only parties

[stepped out] What do you need to submit at pre-trial?

o Pre-trial brief.o What if you fail to submit a PTB?

Same effect as if you didn’t appear at pre-trial. Request for admissions: Rule 129 Section 4 – Judicial Notice:

o No need for introduction of evidenceo You want an admission to abbreviate the proceedingso You are submitting just proposals. If accepted by the other

party, it becomes an admission. Issues – to be submitted for resolution Documentary and testimonial evidence to be presented:

o “One day examination of witness rule” – if you can direct, cross, re-direct, and re-cross a witness in one day, do so. (This is in the guidelines, not in the Rules of Court.)

o Submit the most important evidence first.o Evidence will be pre-marked.

What is the effect of failure to pre-mark? You can no longer present the evidence if

you failed to pre-mark it. Unless the court allows you in the interest of

justice, or if newly discovered.o What if you fail to name the witness in court?

You cannot present the witness anymore. What are the other contents of the brief that you may put?

o Referral to Commissionerso Explore possibility of compromiseo Possibility of judgment on pleadings or summary judgmento Avail of deposition/modes of discovery

How do you avoid consequences of absence?o According to the provision, if there is a good excuse for

absence, the consequence will not vest. You can also authorize someone to appear on his behalf in pre-trial.

What happens next?o Pre-trial order is issued by the court.

DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL

o What if it is a criminal case and the prosecution is absent. What happens?

It will be re-scheduled.o What if the accused is absent?

The prosecution CANNOT present evidence ex-parte because it will violate the accused person’s right to confront witnesses.

o RULE 118. TAKE NOTE OF THIS. THIS IS THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL.

o For an admission of the accused to take effect against him, what must be done?

It must be in writing and signed, by both the counsel and accused.

No such requirement in civil admissions in pre-trial. Judicial Dispute Resolution

o In the past, the JDR process only applies in Makati. Now it also applies in QC and Manila.

o The judge here is both a mediator and a conciliator and an independent evaluator.

o Unless the parties consent to continue with the JDR judge, it is mandatory that there will be a new raffle – and the new judge who will hear, try, and decide the case is the trial judge

o This step happens when the Clerk of Court receives the Mediator’s Report of a “not settled mediation”

o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf

Intervention

What is the concept of intervention?o A third party takes part in a case between other partieso Because he has a legal interest in the subject matter of the

case or he will be adversely affected by distribution/disposition of property in custody of the court

What does the court look at?o Legal interest of the intervenero 1) Such intervention will not unduly delay or prejudice the

proceedings of the parties

o 2) Or if the right of the intervener can be protected in a separate action

When can you intervene?o You can intervene any time before rendition of judgment in the

trial courto There is nothing in the rules talking about intervention in the

Appellate Court. But the court can exercise discretion to allow intervention in the Appellate Courts.

After judgment, can there still be intervention?o As a rule, no.o But if the rule is an indispensable party, the court will allow

intervention even after judgment. Can there be a complaint intervention or answer in intervention, or

a complaint against either/all of the original parties?o Yes, for all.

Nordic:o There was a mortgage over a vessel to secure a loan. There

was a default in the payment. For this reason, there was an Extra-judicial foreclosure. While the petition was there, there was a subsequent case filed.

o There was a complaint filed by the crew members of the vessel against the vessel in RTC Manila (sum of money case).

o The mortgagee sought to intervene in the sum of money case, because it held a Preferred Ship Mortgage.

o HELD: No legal interest, no cause of action. There must be a personal cause of action in order to intervene. Here, the mortgagee had no interest in the sum of money case. And in this case, the mortgagee can protect its rights in the foreclosure case.

Subpoena

Types of subpoena?o Ad testificandum: appear and testifyo Duces tecum: appear and bring with him the documents or

things N.B. Must appear too. Cannot just mail or send.

Who can issue a subpoena?

o 1. Court where witness must attendo 2. Court where deposition is takeno 3. Officer/body conducting investigationo 4. Any justice of CA/SC in any case/investigation pending

Can the OMB issue a subpoena?o Yes.

Can the office of the prosecutor issue?o Yes.

Is the receipt of a subpoena by a respondent in a case filed before the office of the prosecutor necessary for the office to acquire jurisdiction over the respondent?

o No. It is totally irrelevant. Preliminary investigation before the Office of the Prosecutor is a statutory right, not constitutional right. You can altogether dispense with it, or waive it. It is not essential for DP.

o There is an express provision in Rule 112(D) that says failure to receive the subpoena will not bar the prosecutor from issuing a resolution. It is not imperative.

Can a regular court judge subpoena a convict?o The judge examines if it is for a valid purposeo For those under death/RP/Life and confined: must be

authorized by the SC to appear under subpoena Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)

o How do you quash a subpoena as testificandum? 1. Witness is not bound thereby

What is an example of this?o If the witness is not qualified. Ex

the witness is the spouse of the person he/she is testifying against

2. Witness fees and kilometrage allowed by the Rules were not tendered

Witness must live within 100 KM of the place where hearing is conducted

You can also be arrested to compel youo How do you quash a subpoena duces tecum?

1. Unreasonable and oppressive 2. Relevancy of the books, documents, etc. does not

appear

3. Failure to tender the costs of production 4. Kilometrage/witness fees Not in the duces

tecum part but you need the witness to appear too 5. Failure to describe with particularity N.B. not in

the rules Can the clerk of court issue a subpoena in the absence of a judicial

action? (Note, this is not referring to investigation by a quasi-judicial body.)

o No.

Depositions (Rule 23)

What can be subject of deposition?o Any matter, as long as not privilegedo AND relevanto What do you mean by not privileged?

When the witness is disqualified (e.g. attorney-client, physician-patient, penitent-priest, husband-wife, public office in related to State)

Ayala Land applied section one (see Modes notes). It explained how to commence depositions.

o Can a judge before whom the action is pending take depositions?

Yes. (Ayala Land)o Before whom should deposition be taken?

If in the Philippines, 1. Judge, 2. Notary public, 3. Any party authorized to administer oath, 4. The parties by agreement/stipulation

In foreign country, 1. Embassy, legation, consular officer/agent 2. One authorized by commission or letters rogatory, 3. Stipulation of parties

o Dulay v. Dulay – A brother duped his brother; both are Filipinos. One brother is a naturalized American, and applied for the latter’s naturalization. The US government approved it. The later, once there, was made the trustee of the deposits of the former. He spent the money. Filed case in Philippines. Took deposition of bank manager in US. The local court communicated the request with foreign authority (letters rogatory – communication by one judicial authority to another –

to follow the rules of the latter). This is distinguished by commission – where a person is appointed commissioner; the deposition is governed by Philippine rules.

o In this case, the court of Boston ignored the letters rogatory, so they applied for deposition before a notary public. The local court refused to accept, requiring a consular certification.

o The court here allowed because the letters were ignored and there was no consular office in Boston, so they allowed deposition before NY notary.

When is there need for leave of court?o Whether an answer has been filed or not. When there is an

answer, you do not need leave of court, just notice. When there is no answer yet, you need leave of court.

o Contrast with amendments: You need leave of court after answer; before answer, you just need notice.

What is the process to take deposition?o Rule 23, Sections 19-21.o Who does the recording?

A stenographer, clerk, secretary – under the direction and supervision of the officer

o Then? The deponent examines it and signs it Can signing be waived?

Yes.o After the signature, what next?

The officer certifies it first Then files it in court with indication that it is authentic

and complete If the procedure is not followed, what will happen? What is the

consequence?o A party can file a motion to suppress deposition because the

procedure was not followedo What is the Ayala doctrine?

The rules can be relaxed because the deposition was taken before the judge in the main case. The judge knows it’s authentic and complete by personal knowledge.

What are the uses of deposition?

o 1. Impeach testimony of witness [For prior inconsistent statements]

o 2. Against other party (or officer of corporation that is another party) – for any purpose

o 3. Used in place of oral testimony if the deponent: A) Lives more than 100 KM from the place of trial

except if the absence was procured by the party, or out of the Philippines

B) Is dead C) Unable to attend to due age, sickness,

imprisonment, etc. D) Cannot compel attendance of witness through

subpoena E) Exceptional circumstances

Can a subpoena be issued by reason of deposition taking to make sure the deponent comes?

o Yes. Rule 21, Sec. 5 Can a deposition of a deceased person be presented in court? Is

this not hearsay?o It can be presented, as long as it was subjected to cross

examine. It is hearsay, but it can be submitted.o Is cross examination a necessity?

Yes. This is necessary to exempt it from the hearsay rule.

If you take a deposition, are you compelled to present it in court?o No.

If you use a part of a deposition, can the rest be presented?o Yes.

Always distinguish between “take” and “use.” Who are disqualified to be deposition officers? [Memorize; this has

not yet been asked]o 1. Sixth degree of consanguinity from party/employeeso 2. Sixth degree of consanguinity counsel of parties/employeeso 2. Financially interested in the action

Re: irregularities on taking of deposition. What is the general rule on errors/irregularities on taking depositions?

o General rule is that it is waivableo What is the exception?

Relevance or competency of evidence failure to object is not a waiver

Unless a timely objection could have obviated the defect

When is the period to object?o The same as the period to file the responsive pleading.o So to question direct: 10 days (period to file cross)o To question cross: 5 days (period to file re-direct)o To question re-direct: 3 days (period to file re-cross)

Can you take deposition even after pre-trial?o Yes.o Do you need to reserve?

No need, even if you do not reserve it during pre-trial. Jonathan Landoil

If you take a deposition of a person, do you still have to present the person as a witness?

o You still have to present him in court, in general. Depositions cannot take the place of actual physical testimony in court.

o If you fail to cross examine the witness in the deposition, can you still cross-examine him in court?

Yes, you definitely can! Sabio What are the consequences for non-compliance with order for

deposition?o Can it be dismissed?

Yes, the court can dismiss. There can even be a judgment by default

However, in the old case of Arellano, the court dismissed the case due to refusal to be subjected to deposition. But the SC said it was wrong. In this case though, the matter subject to deposition is an incidental matter only, not the main issue of the case.

Bottom line: it IS a possible result, but fall back on materiality of the matter

Can the court regulate the deposition? (Ex. excluding certain matters)

o Yes. Can the other party oppose the taking of a deposition?

o Yes.

o Under what grounds? “Annoy, embarrass, oppress” memorize these

words It is irrelevant

Depositions before action or pending appeal

What is perpetuation of testimony?o See below

If there is no pending case can you take a deposition?o No. You file a case for the perpetuation of a testimonyo So you file a case for the purpose of perpetuating a testimony

What is the special rule on venue here?o Place where the expected adverse party resides

When could you apply for deposition pending appeal?o Before judgment becomes finalo There is a pending case for certiorari, can you take a

deposition pending appeal? No, certiorari is not an appeal

Interrogatories to parties

Distinguish Rules 23 and 25:o Rule 25 – Interrogatories to PARTIES. Always to parties.o Rule 23 – Party or a witness, or any person for that matter

How must the questions be answered?o Rule 23 – there is direct, cross, re-direct, and re-crosso Rule 25 – Just one set of questions to be answered by the

other party Re: time to answer

o Rule 23 – no fixed time to answer, because what dictates the period is the officer (since they have to appear before the officer)

o Rule 25 – Are the uses of the depositions the same?

o Between Rule 23 and 25, the same What is the effect of failure to serve written interrogatories to

parties?

o You cannot compel the adverse party to testify if you did not serve written interrogatories

o Can you call the adverse party to the witness stand? YES! In general, YES. The answer is in Rule 132,

Sec. 12 It is different if you call on the witness the accused

himself (in a criminal case)

Request for admission

What is a request for admission?o 1. Requesting to the other party that he admit the genuineness

of any material/relevant document What else do you need to do?

Attach the document so it can be examined Does an admission cover the contents of the

document? No, just the genuineness – so you do not

have to prove it exists and it is genuine The contents can be up for contentions

Case: There was a pre-trial. One party submitted a list of equipment, and wanted the other party to accept it. The other party said it was incomplete, and asked that the first party prepare a new list to submit to the court within X days. Instead of submitting it to court, the first party submitted a request for admission to the other party. Instead of answering, the second party kept quiet. HELD: It was an implied admission.

o 2. Or truth of any material and relevant matter The admission must be directed to whom?

o The adverse party (Not the counsel – it must be served to the other party) (Duque)

o But the party’s counsel may answer (Larada) What if the other party fails to respond?

o Considered an implied admission Who will suffer the cost?

o The other party who refused to admit, if it is eventually proven to be genuine or true

o But in the meantime, advanced by the party requesting

Producting or inspection of things/documents

What do you apply for?o Request that a party produce and permit inspection of

documents, papers, objects, other tangible thingso OR to allow entrance into a place under control of the latter

and allow inspections, etc. Is production of documents the same as subpoena duces tecum?

o No. Is production required for presentation of secondary evidence?

o Yes, apart from a mode of discovery, it can be a preparatory act to present secondary evidence. If you require production and the other party refuses or says it is lost, then you can produce secondary evidence.

o But there is need for request to produceo So if you get a request to produce but it is targeted to a specific

document, most likely it is for secondary evidence You applied for production of books/papers/documents, and you

are allowed to examine. Are you bound to present it as your evidence?

o No, you’re not required. It is a mode of discovery – a way of discovering evidence. If you like what you see, you still have to go through the process of presenting it in court.

N.B. Under 2004 guidelines, it is the duty of the judge to issue an order to the parties to avail of Modes of Discovery under Rules 23, 25-27

Physical and mental examination

So limited in its use that even the 2004 guidelines do not include it When can you apply for this?

o Mental or physical condition is in controversy This is the only mode of discovery where the court can motu propio

issue it. The other modes, you have to apply for. What is the consequence if the copy of the examination is given to

the requesting party?o You waive the privilege.

o Because of your request, the other party can now also ask for previous or subsequent examination, too.

o What if the requesting party refuses? If by chance, the requesting party’s physicians were

allowed to testify, their testimonies can be excluded. N.B. Privilege of doctor-patient only applies to civil case, not criminal

case

Consequences of non-compliance

If there is refusal to answer, what are the consequences?o 1. The case can be dismissed if he is plaintiffo 2. If the defendant, judgment by defaulto 3. Pleadings can be stricken outo 4. Held in contempt

He can be arrested When does arrest as a consequence not apply?

Request for physical or mental examination

Segue: deposition in other proceedings Can you use modes of discovery in criminal actions?

o Yes. Can you use modes of discovery in special proceedings?

o Yes.o Special proceedings do not provide for an answer. But the

general principle of suppletory application (Rule 72, Sec. 2). Is there criminal deposition?

o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks about a pending criminal action, but it is not yet trial.

o You can call witnesses even before trial and obtain their testimony.

o But there is distinction between conditional examination of witnesses for the prosecution and condition examination for accused.

For prosecution – examination before trial can only be done in the court where the action is pending because the law wants it to be harder for prosecution.

For the accused, it should be made before either any judge, before any member of the Bar (good standing, etc.), any inferior court designated or appointed by a superior court.

o But the law does not say it’s deposition. But it’s akin to such, according to Supreme Court decision.

Does physical and mental examination as a mode of discovery apply in criminal trial?

o It’s inherent.

Trial

Both civil and criminal procedures will not provide for conduct in examination of a witness. Where is it found? Evidence.

What is the order of presentation of evidence?o 1. Plaintiff, to support complainto 2. Defendant, present defenseo 3. Third party, and so ono 4. Parties faced with counter or cross claim, present defenseo 5. Rebutting evidence

Can it be reversed?o Yes, it can, if there is an affirmative defense.o Plaintiff in the usual and ordinary course of things presents

before the defendant.o [Check for midterms: can there be reverse order if it is a civil

case? ] Can there be judgment without trial?

o When parties agree on factso [spaced out]

What are the grounds for cancellation of hearing?o 1. His presence is indispensable and illness is excusable

N.B. it does not say the party must be indispensable; just his presence

o 2. Absence of evidence, and the evidence is material and cannot be procured despite due diligence

Who can receive evidence?o Generally, the judge

o Exception: to the clerk of court – delegated authority to receive evidence

1. There are default proceedings 2. Ex parte

Examples of ex parte proceedings?o Defaulto Application of indigento “As in” default [did not appear

during PT] 3. Parties agree in writing

Can an adoption case proceeding be delegated to the clerk of court for reception of evidence?

o No.o Always with the judge

Can a clerk of court issue a subpoena?o Yes, if it is a subpoena ad testificandum. If it is a subpoena

duces tecum, there must be order by court. Can the clerk of court resolve objections raised in an ex parte

proceeding?o No.o Just note the objections, and forward to the judge.o The other party is not there – who will object?

Well, the clerk of court just has to note it down if clearly objectionable.

Cf Trial by commissioner

Who is a commissioner?o Person authorized by the court to o Ex. auditor, referee, examiner

Any matter can be referred to the commissioner, when?o If the parties consent. ANY MATTER.

But if the parties do not agree, what can be referred to the commissioner?

o 1. Requires examination of long accounto 2. Taking of account necessary for court’s information for court

to render judgment/execute it o 3. Question of fact arising from motion

Can a commissioner issue a subpoena?o Yes.o Can he issue a subpoena duces tecum?

Yes, as long as within the order of reference (his authority)

Can he resolve objections?o Yes.o N.B. this distinguishes him from a clerk of court

When are commissioners mandatory?o Expropriation mandatory in second stageo Partition only optional

If the parties stipulate how the property will be partitioned, there is no need to go to the second stage where commissioners are required

Report of a commissioner is not a judgment. It only aids the court. What are the options of the court?

o It may adopt, modify, or reject the report Who shoulders the cost?

o The losing party, in general. But the court may apportion

Consolidation

What is the difference between consolidation and joinder?o In consolidation, the cases are already pending; in joinder, the

cases are just being filed There was a case where the court allowed for the consolidation of cases

in two different judicial regions – even when it was not even an issue in the case!

Demurrer to evidence

When do you apply for demurrer?o In civil, when plaintiff has completed presentation of evidenceo In criminal, when the prosecution rests its caseo When is this exactly?

After formal offer of evidence Do you need leave of court?

o In civil cases, no need for leave of court.o But if you file leave, is it okay?

Nothing really wrong, but you’re just delaying your case.

o In criminal cases, can you file demurrer without leave of court?

Yes, but if it is denied, the consequences are serious. If there is no leave, and demurrer is denied

accused waives the right to present evidence If there is leave of court, and demurrer is denied

accused can still present evidence What is your remedy of the losing party defendant if the demurrer

is granted? (civil)o Can still appeal, because demurrer is a final disposition of a

case. If your demurrer is denied, what do you do? (civil)

o You can submit evidence, and continue until judgment.o Can you file for an MR of the denial?

Yes, you can file. As long as there is an order, you can file an MR. You can even file it to a judgment, although it is not a prerequisite for appeal.

o If the MR is denied, what can you do? File certiorari

But in criminal demurrer, can you file for certiorari after denial of the MR?

o You cannot appeal a denial or file for certiorari until final disposition of the case.

Dayap: Criminal demurrer. What is the effect of dismissal in a criminal case?

o It amounts to an acquittal. This is not a dismissal without prejudice. You cannot re-file.

o But is it reviewable by appeal? No. It is an acquittal. Double jeopardy has set in.

o But is it reviewable by another mode? Petition for Certiorari (Rule 65)

Salazar: Demurrer to evidence takes the nature of a motion to dismiss. If he files it without leave of court, he waives his right to present evidence and he submits the case for submission purely on the evidence presented by prosecution.

o If the demurrer is granted and the accused is acquitted, can the accused adduce evidence on the civil aspect of the case?

Despite the acquittal, the court can still hear the case as to the civil aspect, unless there is a declaration that the fact from which the civil liability would arise does not exist.

So if the accused was not able to present evidence in the civil aspect, it is a void judgment.

Radio Wealth: Civil demurrer. What is the consequence of a reversal by the higher court, after the initial granting of a demurrer?

o The defendant cannot adduce evidence anymore. The court will render judgment on the available evidence.

o This effect does not apply to criminal cases P v. Cachola: N.B. In a bar exam, demurrer was once coined as

“motion to dismiss on the ground of insufficiency of evidence.” This case used the very same terms.

Judgment on the pleadings

When is there judgment on the pleadings?o 1. The answer fails to tender an issueo 2. Or the answer admits the material allegations of the adverse

party’s pleading What do the “material allegations” mean in the second ground?

o It means the cause of actiono See the next section on Summary Judgment as to what the

difference is with that concept Who files a motion for judgment on the pleadings?

o The plaintiff, always Can there be partial judgment on the pleadings on this ground?

o No. It’s ALWAYS a full judgment on the pleadings.o N.B. This is different from summary judgment, where there can

be partial or complete summary judgments. Can the defendant file a motion for judgment on the pleadings?

o Based on a counterclaim.

If you’re the plaintiff, when can you file a motion for judgment on the pleadings?

o After the defendant files an answer.o Can it be during pre-trial?

Yes under Rule 18, Section 2g. But as a rule of strategy, file it upon first chance to do

so.o Can you file a motion for judgment on the pleadings after

pre-trial? Yes. But this is really belated.

If you’re the defendant, when can you file?o Anytime.

Can the court motu propio render a judgment on the pleadings without motion of the parties?

o No. It must always be upon application.o Very important: But during pre-trial, the judge may prompt the

parties during pre-trial to have judgment on the pleadings (Rule 18). But it’s still, ultimately with the parties’ consent. So in the end, the judge still cannot grant it on his own.

Summary judgment

What is summary judgment?o There is no genuine issue as to a material fact . Memorize this

phrase. What is the difference between this and “the answer does not

tender an issue”?o There is no issue as to a material fact (note: not on the issues)

But can you have a summary judgment based on a tort?o No. Because damages here are unliquidated, and the court

has to hear the case. When can there be summary judgment?

o Declaratory reliefo Liquidated sum of money or action to recover a debt

The court could rely on documents, papers, affidavits, depositions.o Ex. X wants to make it appear that he does not owe Y

anything, but there is a document where he admits the

obligation. Y must file motion for summary judgment and attach the document.

Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ, there could be an issue, but it is ostensibly sham or fictitious. In JOP, the answer does not tender an issue, or it admits the material allegations on the claim. There is no dispute.

Promissory note with no date when it is due and demandable. X owes Y 500K. Y sues X. X claims “it’s not yet due!” Is this something that would lead to summary judgment or judgment on the pleadings?

o Summary judgment; although there appears to be an issue (X made an issue out of nothing). It is ostensible, but it’s actually sham or fictitious.

o Cannot lead to judgment on the pleadings, because there was no admission of material claims.

Judgments

What is immutability of judgments?o General rule: judgments are immutable; they cannot be

modified once final and executory What are the exceptions?

o 1. Nunc pro tunco 2. Clerical or typographical errorso 3. Void judgmentso 4. But some judgments cannot really obtain finality – like

support Is the judge required to take notes during course of hearing in

order to be able to render valid judgment?o No.

Is it required that the judge who heard the case is the same who renders the decision?

o No. But the judge must personally review it. He must have authority [missed this]

Is filing of memoranda by the parties (after the trial, after submission of evidence) required/mandatory?

o It is not mandatory. It is not essential.o Non-submission is not fatal.

What is a separate judgment?o If there are many claims, the court can render judgment on

one, and the action proceeds with regard to other claimso Ex. In expropriation – there are two judgments:

1. Authority to expropriate 2. Just compensation

o Ex. Summary judgment (one case has several judgments – summary as to the one with no genuine issue, and trial over the ones with genuine issue)

What is the difference between a separate judgment from a several judgment?

o Several refers to parties, separate refers to claims Can the court render a judgment to a non-juridical entity?

o Judgment will be against the members, not the entity itself

Motion for reconsideration

Is an MR a prerequisite to appeal?o No.

In a case involving summary procedure, is MR allowed?o No, it is a prohibited pleading

How many days to file?o 15 dayso Can it be extended?

Cannot be extended This rule has never been changed. You cannot file an

extension on an MRo So what’s the remedy?

Some lawyers suggest filing a supplement. But actually, there must be a new event or fact that arises to do this. So this is dangerous.

How long must an MR be resolved?o Within 30 days

Can there be a partial MR?o Yes, when the court finds that the MR affects only a part of the

judgment (ex. just one of the issues). Distinguish an MR from an MNT.

o The grounds are different. In MNT, the grounds are FAME and newly discovered evidence.

What fraud is needed here? Extrinsic fraud.

What is mistake? Mistake of fact in good faith If there’s a mistake of law, the remedy is an

MR, not MNT What is newly discovered evidence?

1. It must be material 2. It was not available during trial despite

exercise of due diligence 3. If considered by the court, it could

later/change the resulto What are the grounds for MR?

1. Evidence not sufficient to support the judgment 2. Excessive damages 3. Decision contrary to law

What is the fresh period rule?o Neypes: After denial of an MR, the period returns to 15 days

Does the Neypes ruling apply to other kinds of appeal?o Rules 40 and 41 (ordinary appeal) – covered by Neypes rulingo Rule 42 (petition for review) – no need for Neypes ruling,

because the provision itself provides for ito Rule 43 (review of QJA) – no need as wello Rule 45 (petition for review on certiorari) – 15 day period for

MR is counted already in the period to file an appealo N.B. So the Neypes ruling is only targeted to Rules 40 and 41

(ordinary appeal) How many times can you file an MR?

o Just once How many times for a MNT?

o Can be multiple, as long as on grounds not existing when the first MNT was filed

What is the effect of granting an MNT?o There will be a trial de novo.o The evidence so far presented may be used in the new trial

without retaking

Can there be MNT in the appellate court?o Yes, but with different rules and only to the Court of Appeals

(not all appellate courts).o Rule 53 covers MNT in the CA. So that MNT is different from

the MNT here. The MNT in the Court of Appeals only has one ground: newly discovered evidence.

o There are different periods as well – In the MNT in trial court: 15 days from judgment In the CA: for as long as it’s an active case (no need

to wait for a judgment in the CA) Is there a MNT in the SC?

o Rule 56 – o As a rule, an MNT cannot be entertained in the SC.o But it is left with the sound discretion of the court if it feels that

it should do it in the interest of justice.

Petition for relief

How many kinds of petition for relief do we have?o 1. From judgmento 2. From denial of appeal

Where do you file it?o From judgment: before the court that rendered judgment, not

before the appellate courto From denial of appeal:

A lawyer forgot to file an appeal on time. He filed late, and it was denied. What do you apply for?

o Cannot use petition for relief from denial of appeal, because there is no ground

o You file an MR. o Why?

You file a petition for relief from denial of appeal if you were prevented from filing it. Here, he was not.

What is the time period for filing petition for relief?o Within 60 days from knowledge from the judgment of order

(count from entry of judgment)o BUT NOT more than 6 months after entry of judgment/order o N.B. both periods must apply

The sixty days can only move around the six months. If you found out the day before six months expire, you are left with one day, not 60 days.

Can you file a petition for relief from judgment when there is still an available remedy of MR, MNT, or appeal?

o No. As long as there are still available reliefs, you cannot resort to petition for relief from judgment. Take note, that there must be entry of judgment, which means if there is no final judgment yet, you can still do an MR/MNT/appeal.

Where else does FAME apply?o 1. MNTo 2. Petition for relief from judgment/denial of appealo 3. Motion to reconsider order of court in pre-trial declaring that

the plaintiff can present evidence ex parte due to failure of the defendant to appear in pre-trial

o 4. Motion to lift order of default What are the grounds for annulment of judgment (Rule 47)?

o 1. Extrinsic fraud Prescribes 4 years from time of discovery

o 2. Lack of jurisdiction (covers both SM and person) N.B. This is the only provision that uses lack of

jurisdiction both ways Mr. X died, leaving an estate. Juan claims to be the sole heir. The

estate court adjudicated the entire estate in favor of Juan. Judgment became final and executory. After 2 months, the rest of the heirs who learned of the judgment came forward and filed a motion to set aside the judgment. Court denied the motion to set aside the judgment. So they went to the CA on an annulment of judgment. (N.B. a petition for annulment of judgment is an original action; it is not an appeal. You file this for a decision of the MTC, to the RTC and for a decision of the RTC, to the CA.) Did they use the proper remedy for filing petition for annulment of judgment in the CA and not petition for relief to the court that issued the judgment? (Alaban v. CA)

o Petition for relief. o 1. Although section one states that only a party may file a

petition for relief from judgment, it is an action in rem. It

requires publication, so the heirs have been notified and deemed as parties.

o 2. The learned of the judgment 2 months (60 days) from learning of the judgment. So the proper remedy is petition for relief, since it falls within the period.

Execution

When is execution a matter of right?o Judgment is final and executory USUAL CASE

Ex. period appeal has already lapsed When is execution a matter of discretion?

o For good reasons, when t is not yet final and executoryo Execution of several, separate, or partial judgment

Which court issues the writ of execution?o Court that rendered judgmento RTC issued a decision, it was appealed to the CA, then to

the SC. Who issues the writ of execution? The RTC – the court of original jurisdiction

o Are there instances wherein the writ will be issued by an appellate court, or a court other than that of original jurisdiction?

In the interest of justice , you can apply to the appellate court. But the general rule is that it is still the court that rendered the decision.

o Can the CA issue a writ of execution, other than in this instance?

When it exercises original jurisdiction. Where do you file a motion for execution?

o File it in the court that rendered the judgment.o Can it be filed with the appellate court?

Same with above. Do you need to file a bond to apply for discretionary execution?

o The obligor need to file a supersedeas bond to stay discretionary execution; but the obligee does not need to file a supersedeas bond to apply for discretionary execution.

o What does the obligee need to present then? Proof showing good reason

o What are examples when discretionary execution vest? 1. Perishable goods 2. Old age + sickness [?]

Intramuros: Discusses when the judgment becomes final and executory. A final judgment or order is one that finally disposes of a case. This is the only thing that could be subject to execution.

What is the difference between discretionary execution and execution pending appeal?

o They are the same. And both require good reasons. Should the writ of execution conform to the dispositive portion?

o Execution must conform to the dispositive portion. What is reproduced in the writ is the dispositive portion of the judgment. (Intramuros)

Is a full blown trial required for a motion for execution?o No.

Can execution pending appeal be applied for to the TC after the appeal has been perfected?

o For as long as the TC has jurisdiction over the case.o See Rule 41. [This includes execution pending appeal,

provisional remedies, etc.] Do you need a bond to stay a writ of execution that was issued as

a matter of right?o No. You cannot stay it anymore – even with a bond. It’s a

matter of right.o What is the exception?

Get an injunction or TRO, claiming GADALEJ. What are the judgments not stayed by appeal?

o Injunction, receivership, accounting, support, other judgments saying it’s immediately executory

Can an MR stay a motion for execution?o The provision only says “an appeal” cannot stay a judgment…

theoretically, jurisdiction is still with the court of original jurisdiction.

o But there is no clear answer. In an ejectment case, which court issues the order of demolition?

o The court of original jurisdiction, i.e. the MTCo What is the exception?

Mina: Discretionary execution can be entertained by the RTC.

Who has to make reports?o The sheriff, on any matter of execution, esp. the conduct of

such. Is a motion for execution indispensable before the court can

execution?o Yes, even for those immediately executory in nature.o Cagayan de Oro: A lawful levy for execution is needed before

there can be a sale can be effected.o Can the court motu propio issue a writ of execution?

OCA v. Corpuz: Court on its own, cannot issue a writ of execution without motion of another party

What is revival of judgment by an independent action?o If you went beyond 5 years from entry of judgment, but are still

within the prescriptive period, you can file an independent action to execute.

When can you file a motion for execution?o Within 5 years from entry of judgment

After lapse of period of ten years, can you still revive it?o No.o Is it always ten years?

YES. This is the flat prescriptive period for judgments.

Death after judgment:o If the judgment oblige dies, then the executor/administrator

applies for executiono If the judgment obligor dies, and judgment is for recovery of

real/personal property – there is a lien over his propertyo What if levy has already been effected?

Proceed to sale of the property to satisfy the judgment.

o What if the judgment is for money, not property? File a claim against the estate

Section 8: Contents.o Do the contents have to always be there?

No. Only to the extent applicable. Money judgments

o Payment must be in what form? In cash.

o Payment must be made to whom? To the judgment obligee, if available What if he is not available?

To his representative What if he is not available?

To the sheriffo Can payment be effected not by cash (Ex. check or PN)?

Certified bank check is allowed Or any other form of payment acceptable to the latter

o What if there is no cash? Go to

Levy on real or personal property o What will be disposed first?

Choice of judgment obligor If he doesn’t make a choice, personal property is

prioritized over real propertyo What if there is no property?

Go to Garnishment

o Custodian of the funds/deposit/royalty has to make a report.o How many days to report?

5 days from receipt of notice. The custodian/manager has 5 days to report if there is money.

o What does the court do next? It issues an order requiring transfer of funds.

o Can you garnish without prior demand of payment? No.

Specific acts o If the court requires the obligor to do something, but he

refuses, what happens? The court can require another person to perform it.

o If the other person does not comply? The court may consider that it has been DEEMED

complied with. Give an example.

The court orders that there must be execution of deed of sale in favor of Y, done by X. X refuses. The court orders Z to perform it. Z refuses. The court will deem it complied with. This deed of sale will be forwarded to the Register of Deeds or whoever/whatever office

o Can an order for demolition be given along with the writ of execution?

No. It is punitive in nature, so there must be a hearing.

o When can there be contempt? ONLY applies for special judgment, and there is

refusal to comply. What are the properties exempt from judgment?

o Family home, homestead, and the land If you mortgaged your Family Home, will it still be

exempt from execution? [See last sentence?]

What are homestead lands? Public lands given to people giving them a

chance to cultivateo Libraries of professionals not beyond 300Ko Furniture for the family not beyond 100Ko Beasts of burden (up to 3)o Tombstones

What about mausoleums? No.

o [Among others] When can you apply for a motion for execution?

o Section 14. This also tells you the life of the writ. o What is the life of the writ?

5 years, before it expires. Sec. 15-34:

o Important parts: Requirements of sale Certificates of sale Redemption

Redemption period Who will be in possession of the property sold in

public sale Who will be entitled to fruits/profits of the property What if after participating in the sale, you are unable

to take possession of the property – remedieso What are the requirements for sale?

TWO NOTICE REQUIREMENT: one to the judgment obligor, one to the public

Public – posting in conspicuous places, or even by publication

What if it is a perishable good or personal property?

Perishable goods – within reasonable time (no strict timeframe)

Personal property – at least 5 days notice Real property – within 20 days

o N.B. not “at least” What if the value of the real property

exceeds 50,000, what is needed?o There must be publication

Should you notify the judgment obligor? Perishable goods – just notice before the

sale In all cases, notice at least 3 days before the

sale What time must the sale be?

9 am to 2 pm, and it must be in the office of the Clerk of Court. But usually, it is done outside the hall of justice

What if it is personal property capable of delivery?

It must be done in the place where the property is located

o Is a certificate of sale mandatory for personal properties capable of manual delivery?

No, it is not. For real properties, you need a certificate of sale. What are the contents of a certificate of sale?

[See this]o Can you redeem personal property sold on public sale?

No. Personal properties cannot be redeemed, only real properties.

Who can redeem? The judgment obligor can redeem

Who else? Those who have interest on the property,

either by credit, encumbrance (redemptioners)

What is the distinction? Judgment obligor always has a period of 1

year, non-extendable Once the judgment obligor redeems, no

further redemption is allowed. What about the redemptioners?

o Theirs rights were never extinguished. It still exists, over the property.

If the judgment obligor does not redeem, can the redemptioners redeem beyond the 1 year period?

o No. This is the view sir subscribes to, even if some commentators say there can be endless redemption beyond the 1 year period in 60 day intervals. But sir said that after 1 year, the last redemptioner gets the property.

o Who has possession during redemption period? Obligor.

o Who is entitled to fruits and profits? Obligor. N.B. The obligor cannot change the nature of the

property during the period. He must not modify it.o How must redemption be made?

It must be willingness and intention coupled with tender of payment. Willingness and intention without tender is not enough.

Case: The redemptioner wanted to redeem in installments, and not full payment. This was held to be invalid.

Beyond the redemption period, can it still be redeemed?

It is not anymore redemption as contemplated by law; just a contractual arrangement between the redemptioner and whoever purchased the property.

Amount subject to sale + interest + taxes, if before the one year period; however, after the period is over, the amount can be dictated by the parties freely.

o I purchased property in a public sale, but someone with a better interest came forward, so I wasn’t able to get possession and transfer of the property. But I already parted with my money, and paid the sheriff. What should I do?

1. You can recover its value in the same action or separate action

2. You can have the judgment revived in the name of the purchaser – he steps into the shoes of the judgment obligee.

In this case, he can execute – just like any other judgment obligee.

[So if he cannot pay, he can levy, and if not, he can garnish.]

In execution, you need to remember the word “satisfaction.” Sections 44 and 45 have this end in mind. The books of the case will not be closed, even if you won, if judgment has not yet been fully satisfied.

What are your remedies?o 1. Call the judgment obligor and have him examined in court,

through subpoenao 2. Call on the stand the debtor of the judgment obligor to be

examined in court, through subpoena

What if in the course of examination, we find that he owes the obligor?

He can then be charged.o 3. Pay directly to the sheriff, and the sheriff issues a proper

receipto 4. Amortization paymentso 5. Court appoints a receiver

Akin to the provisional remedy on receivership This is the only provisional remedy that can be given

by the court even after judgment The reason: to preserve the property.

o 6. If it is later discovered that the obligor has an interest over a property, the court can order a sale

o 7. If person who has possession of the property of the obligor refuses to recognize the title of the obligor, the obligee could ask for an order to have the property sold for a period of 120 days. If there is sale within this period, the obligee (!) will be the one penalized (odd).

What are the 3 scenarios to show full satisfaction?o 1. The writ of execution has been returned to court

Every 30 days, the sheriff has to report on the status of the writ

o 2. Written acknowledgement of the judgment obligee or counsel

o 3. When there is an endorsement on the face of the records of the case

Even if the other party does not consent, but the court believes that it has been satisfied, the court may enter that it has been satisfied.

What are the effects of domestic judgment? (MEMORIZE)o 1. As against a specific thing, condition/status/relationship of a

person – conclusive upon it Where a will has been probated, is death of the

party conclusive? It’s only presumed

o 2. Res judicata Baretto v. CA: Two aspects of RJ – 1. judgment bars

the prosecution of the same claim, demand, or cause of action, 2. Precludes the re-litigation of a particular

fact or issue in another action between the same parties in a different claim or cause of action

o 3. Preclusion of issues/conclusiveness of judgment As to other litigation actually and necessarily included

therein What are the effects of foreign judgment?

o 1. Conclusive as a specific thingo 2. Presumptive evidence of rights between parties

How do you enforce foreign judgments?o 1. File a verified petition in the RTCo 2. There was jurisdiction of the court over the subject matter

and over the partieso 3. Prove the law of that jurisdiction

How do you impugn that foreign judgment?o 1. Want of jurisdiction/notice to partyo 2. Collusiono 3. Fraudo 4. Clear mistake of law/fact

How about foreign arbitral awards?o You file an action for recognition. It is not a foreign judgment.

Appeals

What are the three modes of appeal?o 1. Ordinary appeal (Rules 40 and 41)o 2. Petition for reviewo 3. Petition for review on certiorari

What are the ordinary appeals?o Notice of appealo Record on appeal

When is there record on appeal?o Multiple appealso Special proceedings

What are the periods?o Notice of appeal – 15 dayso Record on appeal – 30 days

Can you extend the period of 15 days?o Not extendable

o But if you file an MR and it is denied, following Neypes, you get a fresh period

Can you extend the period of 30 days?o Noo Except when there is an authorized alteration or modification of

the record Where do you file a notice of or record on appeal if you are in the

MTC going up to the RTC?o MTC. Always on the court that issued the judgment.

What is a record on appeal?o It’s a sequential compilation of the pleadings, orders, etc. of the

judge.o Unlike a notice of appeal, which is just a statement when you

received the decision, that you paid appeal docket fees within period, and you intend to appeal

If you go from the MTC to the RTC, what is the process?o Take note that the RTC is an appellate court here.o Parties file a memorandum to the RTC. The RTC will not

reexamine the evidence and witnesses. In Rule 41, the court of original jurisdiction is the RTC, and the

appellate court is the CA. Why is it also an ordinary appeal?o Because it’s only been decided on once, and will be reviewed

for the first time.o As opposed to Petition for Review – this deals with cases that

have been twice decided on. What is the procedure in the CA?

o Filing of appellant’s and appellee’s brief. The procedure is found in Rule 44, not 41.

Period for filing of briefs?o 45 days, appellant’s briefo 45 days, appellee’s briefo 20 days, for reply

When does the court of original jurisdiction totally lose jurisdiction, during appeal?

o When all the periods for appeal have expiredo Or when all the parties have appealed in due time

What are the two kinds of petition for review?o Rule 42

o Rule 43 (quasi judicial agencies)o What about petition for review of the decisions of the

Prosecutor? It is technically not a petition for review because it is

for criminal procedure, and is in the executive branch When does Rule 42 apply?

o There is denial in the MTC, and then denial in the RTC, and then it goes up to the CA through Petition for Review.

o What about summary proceedings in the MTC? When you lose in the MTC, you cannot file an MR.

BUT you can appeal to the RTC, then petition for review to the CA.

o What about small claims in the MTC? You cannot MR or appeal a small claims decision. It

is final and executory. But if there is GADALEJ, you can go up to through a petition for certiorari.

When does Rule 43 apply?o When the body with original jurisdiction is a quasi-judicial

agency What are the periods?

o Same for Rule 42 and 43 – 15 dayso Can you ask for an extension?

Yes, you can ask for one during the reglementary period.

o Can you ask for a second extension? General rule is that no further extensions are allowed,

except for the most compelling reasons. What are the requirements of a Rule 42?

o 1. It must be verified – MEMORIZEo 2. Attach a copy of the decision or a duplicate originalo 3. Affidavit of material dates (date of receipt of decision, date of

filing of MR, date of denial of MR)o 4. Parties, issues, grounds relied upon, errors, explanation if

service is other than personalo What are some of the causes that will dismiss your case?

1. If the jurat does not comply with the requirements of the notarial law

2. Failure to attach registry receipt

What are the requirements of a Rule 43?o SAME, but you attach all certified true copieso Why?

Because it came from a QJA. So the court will not be able to verify if the issued resolutions, etc. are genuine

Is the enumeration in Rule 43 of QJAs exclusive?o No.o Can the decision of the Office of the President be reviewed

by the CA? Yes.

o Can the decision of the HLURB be reviewed by the CA? No. By express provision, it must go through the

President before the CA.o NLRC by the CA?

Yes, but under Rule 65, not 43o DARAB by the CA?

Yes.o CTA by the CA?

No. It must be CTA en banc, then SC. The only way to go up to the SC is through Petition for Review on

Certiorari.o Except: In a criminal case where the punishment is Life

Imprisonment, Death, or RP you go to the SC through Ordinary Appeal

Petition for Review on certiorari – what is the period?o 15 days.o Can there be extension?

ONLY ONE extension for 30 days, for good reasono I asked only for an initial extension of 15 days. But I

realized I needed more time. Can I ask for the last 15? NOPE. You only get one extension.

Rules 44-56 – CA

How is jurisdiction acquired over persons for original cases filed in CA?

o Service of order/resolution or voluntary submission to the court’s jurisdiction

o What does service of order or resolution mean? Akin to Rule 13 service

o What if there was an effort to serve and it was not received? Is the court deemed to have acquired jurisdiction?

No. There must be proper service of the resolution or order. Not like summons, but the same as Rule 13.

Can the CA conduct a hearing?o For original cases, yes. This is why the CA requires hearings

or arguments for certiorari, annulment of judgment, mandamus, prohibition, quo warranto.

o N.B. Annulment of judgment is an original action seeking annulment of judgment of an RTC decision.

Can you seek an annulment of judgment of an MTC decision?

Yes. You file annulment in the RTC. Can you seek an annulment of judgment of a CA

decision? No. Fall back to the usual rule that you can

only go up to the SC through Rule 45.o Can the justices hear the case?

Yes. Alternatively, it can ask the RTC to receive evidence.

Preliminary conference is the equivalent of pre-trial in the CA. Whether it is an original or appealed case, the CA can set it for preliminary conference.

o What is the effect if the appellant is absent here? The appeal will be dismissed. This is provided in

Rule 50. Rule 50 enumerates grounds for dismissal of appeals. Browse through this .

Ex. paid docket fees outside of reglementary period, even if you filed the appeal within the period; failed to file within the reglementary period

Ex. failure to file an appellant’s brief

o Can the parties stipulate on the facts? Yes, if it is an original action, or there is a grant of

new trial on the ground for newly discovered evidence (Note: newly discovered evidence is the only ground

for the CA; FAME is not included) Oral arguments: what do I need to know?

o 1. Only original cases are argued in court; not appealed cases But if the CA feels that there is a need for the parties

to ventilate their arguments through oral discussion, then it can do it in its discretion.

o 2. Do you hear motions in the CA? While for trial courts, motions will be heard, except

those that will not prejudice the rights of the other party.

BUT in the Court of Appeals, motions in the CA need not be heard (same with the SC)

Comply with minimum requirements of Rule 44 and 50.o What if you don’t have an assignment of errors?

Your appeal will be dismissed.o What if you don’t comply with court circulars?

Dismissed. Rule 51 – provision on judgment. (For trial courts, it is Rule 36.) <spaced out> Can you file an MR in the appellate court?

o Yes. Rule 52.o Same period (15 days)o Same three grounds – except that the period to resolve in the

CA (90 days) is longer than the TC (30 days) Can you file a MNT in the CA?

o Yes.o In the TC, grounds are FAME and newly discovered evidenceo In the CA, the only ground is newly discovered evidenceo Periods?

TC – reglementary period within receipt of adverse decision

CA – from the time appeal is perfected and as long as the CA has jurisdiction

Rule 56 – Supreme Court

Remember Sec. 1 and 3. Memorize the cases that will be originally filed in the SC.

What are the cases that can be originally filed in the SC?o Certiorari, prohibition, mandamus, quo warranto, disciplinary

actiosn against members of the Bar/bench, against ambassadors, consuls, other public ministers, etc.

But if you file a case against a member of the Bench, it will be referred to the Court Administration. If against a member of the Bar, it will be referred to the IBP.

o Found in the Constitution: Constitutionality of law, treaty, ordinance, tax imposition, EO, etc.

What do you need to follow for original cases?o Rule 46 – original caseso PLUS: Rule 48 (preliminary conference), Rule 49 (oral

argument), Rule 51 (judgment), Rule 52 (MR)o Is there a MNT?

No. For appealed cases to the Supreme court, what is the mode?

o Rule 45 – the only way to go up to the Supreme Courto PLUS: Rule 48 (preliminary conference), Rule 51 (judgment),

Rule 52 (MR)o Is there oral argument?

No.

Rule 57 – attachment

Manguila: citing Davao Light and Power. Question is when should jurisdiction over the defendant?

o Distinguish between issuance and implementation of the writ of attachment – to determine when jurisdiction is needed over the defendant.

o Remember you could file an attachment will the initiatory pleading and apply for it ex parte. You can also apply for it upon motion.

o To answer the question : there are three stages for attachment –

1. Court issues order granting application 2. Writ of attachment issues pursuant to the order 3. Implementation of the writ FOR THE FIRST TWO STAGES, jurisdiction over the

defendant is not yet required because it is an ex parte application. However, when you are implementing the writ, you need jurisdiction over the defendant.

o Thus, how can the writ be implemented? You have to get jurisdiction over the defendant first.

o Summons should be served prior to, or contemporaneous with the order (for implementation). Contemporaneous is better.

o Summons belatedly served does not cure fatal defect in the enforcement of the writ.

Either personal or substituted service. Grounds for attachment? MEMORIZE

o 1. Any claim for money or damages except moral/exemplary, if the claim arises from an obligation (law, contract, quasi-contract, delict, quasi-delict) AND defendant is about to depart with intent to defraud

What if claim is recovery for sum of money only? No. You could only apply for attachment if

the defendant is about to depart with intent to defraud.

o 2. Embezzlement/abuse of trust by one with a fiduciary relationship

For all intents and purposes, this is estafao 3. Action to recover property and there is willful fraudulent

concealment of the propertyo 4. Fraud in contracting the obligation or fraud in the

performance thereof – most asked ground First: If not for the fraud, the other party would not

have entered into the transaction Second: In the manner of the performance, it was

fraudulento 5. Action against a person who removes/conceals property

Unlike (3), this is directed against a persono 6. Defendant is a non-resident

Fraud not required here, because he can leave at any time

How do you discharge an attachment?o 1. Most common: post a counter-bond

When do you post a counter-bond? Can be posted after enforcement of the writ. You cannot anticipate its enforcement.

o 2. Improper, irregular, or excessive attachment What is “improper”?

Grounds are not present in the case What is “irregular”?

Wrong process. When can this be raised?

ANYTIME, even before enforcement. Can you recover damages?

o Yes, Section 20 – if there is improper, irregular, or excessive attachment.

o Section 20 applies to all provisional remedies except support pendent lite.

o Where can you apply for it? In the trial court; during or after trial. You can apply for it within reglementary period, or

when appeal has been perfected. AS LONG AS it is pending, and not yet final and executory.

o Yu v. Ngo: Evidence required for wrongful attachment. When there is wrongful attachment, defendant may recover actual damages, without need of proof of bad faith. When there is malicious attachment, defendant may recover actual, moral, and exemplary damages.

o What is the scope of the award of actual damages from attachment?

1. With best evidence obtainable, fact of loss or injury 2. Amount thereof

o Can actual damages cover unrealized profits? Yes. But the amount must be supported by

independent evidence of mean income of the business undertaken.

o How do you prove moral/exemplary damages?

Prove that the wrongful attachment was with malice or bad faith.

o How about attorney’s fees? Generally, attorney’s fees cannot be awarded when

moral or exemplary damages are not granted. Exception: when a party incurs expenses to lift

wrongfully issued writ of attachment. Metro Ink: Referred to Section 1d of Rule 57. It must be shown that the

debtor intended to defraud the creditor by contracting the debt. The fraud must be related to the execution of the agreement and must have been the reason that induced the party to give consent.

o If the writ of attachment is issued for a ground that is also the cause of action of the plaintiff, the only way to dissolve it is to post a counter bond.

o If you post a counter bond, does this waive any further claim for damages arising from wrongful attachment?

No. Rural Bank of Sta. Barbara: A motion to release property from

attachment was treated as a third party claim (can also be found in Rule 57, Sec. 14). Works as the same manner as a third party claim, except for one difference: [READ THIS CASE TO CLARIFY]

o Usually, in execution – The applicant posted a bond when he applied for a writ of attachment (to cover whatever damages defendant will suffer due to attachment) By reason of a third party claim, with no bond, the process will be suspended. Now it is the burden of the applicant to post another bond to cover the third party’s damages.

o In attachment – more or less the same procedure. The third party claim suspends the attachment procedure. But the right of the third party claimant in execution in attachment could be vindicated in the same or in a separate action. In execution, it could only be done in a separate action.

o Why? Because in execution, the judgment is already final.

o In Rural Bank, a motion was filed to release property from attachment, giving affidavit of title to the sheriff. The court said that the filing of the motion can be deemed the same as a third

party claim (because 3P claim must be filed with sheriff). It can also be treated as a form of intervention.

Case: Levy on attachment duly registered takes preference over a prior unregistered sale. The preference created by attachment is not defeated by the subsequent registration (to the attachment) of a prior sale, because attachment is a proceeding in rem.

Magaling v. Ong: Irregular and improper issuance of attachment. When the attachment is challenged for being illegally or improperly issued, there must be a hearing.

o The hearing embraces the right to present evidence, and also the establishment of rights of other parties.

o Mere filing of opposition is not equivalent to a hearing. Absence of a hearing does not discharge attachment.

o The discharge of an attachment, whether through counterbond or irregular, improper, or excessive – can only be done through hearing.

Security case: Two ways to secure discharge of attachment. 1) Party whose property or his representative has been attached can post a security. 2) Said party can show that the attachment has been improperly or irregularly issued. Mere posting of counter bond does not discharge the attachment. There should be a specific resolution for the discharge.

Contents of affidavit for attachment?o 1. Cause of actiono 2. Statement that the grounds applyo 3. There is no sufficient security

What if the court renders a judgment and there is a previous attachment, duly registered, what will the subject of execution?

o If there is money duly garnished or obtained through sale of perishable goods, the money will be applied.

o If not sufficient, use real or personal property that has been attached. But these properties have to be sold on public sale. Procedure is consistent with Rule 39.

What if the properties attached are not sufficient to satisfy the judgment?

o Court proceeds with ordinary execution to cover the balance.

Rule 58 - Injunction

N.B. Rule 58 has been amended on Dec 2007. It was amended alongside Rules 41 and 65.

What was affected by the amendment?o Rule 48, Sec. 5. [Discussed later on]

Bacolod City v. Labayo: Can there be a principal action for injunction?

o Yes. There could be a principal action for injunction. There is a distinction made in this case between principal action and preliminary injunction:

o Principal action – seeks a judgment for a final injunction which is separate and distinct from

o Preliminary injunction – object is just to preserve status quo Greenfield, Dela Cruz v. DECS: What are the requisites for a PI?

o 1. A clear and unmistakable righto 2. The right has been violated, and invasion has been material

and substantialo 3. There is an urgent and permanent necessity for the writ to

prevent serious damage Types of PI?

o 1. Preliminary injunction to prohibit or stop (status quo ante)o 2. Preliminary mandatory injunction – an injunction which

requires you to do something or perform something that you do not ordinarily want to perform, in order to maintain the status quo

Estares: A writ of PI based only on initial and incomplete evidence – is this allowed? What kind of evidence is required?

o You don’t need to present your entire case. Only a sampling of evidence is needed, to give the court an idea to justify why you need to obtain the PI.

Can a judge issue a PI without a notice and hearing?o No. It’s an absolute no. (Dela Paz)

Can the court issue a TRO without notice and hearing?o Today, yes. (This is the amendment)o If great and irreparable injury, court can issue a TRO ex parte

(without notice and hearing) for 20 days. When stations where there is an executive judge, or the presiding judge

of a single-sala court, there can be an issuance of a 72-hour TRO ex

parte – if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury

Can an injunction have an effect if enforced outside the judicial district? (ex. enforced in Makati and Mandaluyong, and the judge is stationed in Marawi)

o No. A writ can only be issued in the judicial region. What is the purpose of the bond?

o To protect the person against whom the writ of injunction has been issued

o The posting of a bond in connection with PI does not operate to relieve the party obtaining the injunction from paying damages – the bond only gives additional protection in favor of the defendant

o So Rule 57, Sec 20 also applies here. Read above, on the rule re: damages.

A court issued a writ of PI. What is the duty of the court in relation to the main case?

o The main case has to be decided within 6 months or else the judge can be disciplined by the court. This is a new provision.

Aquino: Dissolution of the injunction, even if it was obtained in good faith, it amounts to a determination that it was wrongfully obtained. A right of action against the bond accrues.

Garcia: Posting of a bond is a condition sine qua non to issue a writ of PI.

Borromeo: Where the parties stipulated in their credit agreement, PN, contract, etc., that the mortgagee has the right to foreclose in case of default, this defeats any future claim for the issuance of a PI.

SC Circular (2007): On issuance of PI on extrajudicial and judicial foreclosure cases.

o 1. Today it is not enough to say that you have paid the amount. Mere allegation of payment without showing actual payment is not basis for issuance of PI.

o 2. Mere claim/allegation that the interest is unconscionable or excessive does not justify issuance of the PI unless the legal interest is paid.

What is a Status quo order?o It is not a preliminary injunction. Minimum requirements of

TRO/injunction do not apply to status quo orders.

o It can be applied in TC or appellate court. A status quo order can be issued without a bond, or without a fixed term.

o BUT in the SC Circular (2007): requirements for TRO must apply to status quo orders if issued for judicial or extrajudicial foreclosure of mortgage.

Can the court require you to post a bond for a TRO?o Yes.

What are the two kinds of TRO?o 72 hour TRO – can only be issued by executive judge of a

multi-sala court, or presiding judge of single sala court Without notice and hearing Can these 3 days become 20 days?

Yes, after raffle and it is assigned to a regular court judge, who can now conduct a summary hearing to determine w/n it must extend the TRO from 3 to 20 days.

o Normal 20 day TRO – issued by a regular court judge after raffle

Without notice and hearing Great and irreparable injury Can a 20 day TRO be extended?

No, it automatically expires w/ or w/o a period.

Unless you obtain a preliminary injunction Can a preliminary injunction be issued without notice and

hearing??o No. NEVER. There must always be notice and hearing.o The hearing is always summary in nature whether TRO or

preliminary injunction. If you file a petition for certiorari against the PI, does it suspend

the main case?o No, it does not. This is an amendment introduced in 2007.o Can you extend the period by which you can file a petition

for certiorari (60 days)? No more. Before the 2007 amendment, you can ask for a 15

day extension. This was removed already. How can you dissolve a writ of PI?

o Is insufficiency a ground to dissolve a PI? NO. It just a ground to deny, not to dissolve

o 1. File affidavits showing there is no reason for the PIo 2. File a counterbond + an affidavit showing that he will suffer

more damage than applicant will Is a counterbond enough?

No Is the statement enough?

No

Rule 59

The only provisional remedy that can be applied for post-judgment and even if it is already final and executory.

Grounds:o 1. Property is in danger of being lost o 2. Property is in danger of being wasted/dissipatedo 2. Stipulation in a mortgage contract and the security in the

mortgage is not enough to cover the value of the applicationo 3. Other reasons the court finds convenient

Requires a bond How do you dissolve the bond?

o 1. Show no causeo 2. Post a counterbond

Rule 60 – Replevin

Can property held as evidence in criminal case be subject to a writ of replevin?

o Superlines: NO. In the affidavit of the affiant, the property is not subject of custodia legis, execution, or attachment. The deprivation, to be validly subject to replevin, must be illegal or unlawful.

o Property can be said to be in custodia legis, not only when it is in official custody, but if it pursuant to a legal order in a case

Can one quash a writ of replevin?o Of course, it may be quashed or dissolvedo How do you dissolve?

1. If you want to regain immediately custody or possession, you just simply post a counter-bond

[take note of this] 2. Attack the sufficiency of the replevin

Here, you cannot effect an immediate release

What is the value of the bond?o THIS IS THE ONLY PROV REM WHERE THE COUNTER

BOND IS DOUBLE THE VALUE. What are the contents of the affidavit?

o Memorize this for the baro 1. The applicant is the owner of the thingo 2. Property is wrongfully detainedo 3. Property is not lawfully takeno 4. The fair market value of the property

When can replevin be applied for?o You can only apply for this AT ANY TIME BEFORE AN

ANSWER.o For the other provisional remedies, you can apply anytime

while the action is pending (or for receivership, even after) What is your remedy after an answer is filed?

o You file an attachment, but the effects are different.o What are the differences?

1. In replevin, the property subject of the action is taken. In attachment, properties, whether real or personal are attached to secure the judgment

2. In replevin, when the writ is served, the sheriff takes possession, and delivers it to the applicant (unless a counterbond is filed within 5 days). In attachment, personal property is taken by the sheriff and delivered to the court; for real property, the sheriff annotates at the dorsal portion of the title.

Note that the main action is recovery of possession of property. The issuance of a writ of replevin is just a provisional remedy.

Can there be a principal action for replevin as a provisional remedy?

o No, just like everything else, it is a provisional remedy.

o BUT because of the ADR rules, you can file any provisional remedy as a main action in aid of an arbitration clause. (!!!)

Pinggol: A replevin bond was deemed invalid because the officer who signed the bond is without authority to do so from his company.

Danao: Can you subject to replevin a motor vehicle in custody of another court?

o No. It is in custodia legis. Can goods under custody of an agency of the government (here,

ex. Bureau of Forestry) be subject to a writ of replevin?o No. It is under lawful process.

In attachment and replevin, there are rules for third party claims. What are these?

o 1. Rule 39 Sec 16o 2. Rule 57 Sec 14o 3. Replevino Note that unlike execution, in attachment and replevin, a third

party claimant can vindicate his right in the same or a separate action. In Rule 39, a third party claimant can only vindicate his right in a separate action, because judgment is final and executory.

o What is the rule on intervention (Rule 19)? You can intervene anytime before judgment. But this

only applies to trial courts. What about appellate courts?

You can still intervene, but subject to the appellate court’s sound discretion.

Rule 61 – Support pendente lite

This is the only provisional remedy that does not require a bond. The four others require a bond. The person applying for support obviously needs money.

o N.B. For all these other provisional remedies, just follow Rule 57 Rule 23. The general rule is you can only recover damages from a bond while the action is pending.

o So what is the rule if you are wrongfully compelled to give support?

You don’t recover damages. You ask for reimbursement.

What if there is refusal to comply with court order to give support?o The court can order execution.o There are only two instances where there can be writ of

execution even when there is no final judgment : 1. Support pendente lite 2. Indigent (which the court finds that you are not an

indigent and requires you to give filing fees) What if a person believed that he is the father and he gave

support? Then, it turns out he is not the father.o If the action is still pending, you can apply for reimbursement in

the same action.o If there is a judgment already, you can apply for it in a separate

court. Can you dissolve support pendente lite?

o When there is no reason to give support pendente lite.

Rule 62 – Interpleader

Can there be a counterclaim in an interpleader case?o Yes.

Stuff to remember:o In the interpleader case, the one filing the case was not

violated. There was no breach.o The person filing the action can either have an interest which is

not in conflict with the claiming parties, or has no interest at all. Are there filing fees for an interpleader action?

o Yes.o However, the applicant, not being violated nor is he a Real

Party in Interest – is entitled to a lien on the judgment award What is the difference with intervention?

o In intervention, there is already a pending case. Here, you initiate the action.

Rule 63 – Declaratory relief

Almeda: Enumerated the requisites of declaratory relief:o 1. Subject matter is a deed, will, contract, or other written

instrument, statute, EO, or regulation

o 2. The terms of the documents are doubtful and require judicial construction

o 3. There must have been no breach of the documents in question

o 4. Actual justiciable controversyo 5. Ripe for judicial determinationo 6. Adequate relief is not available

Bottomline: purpose is for interpretation and determine validity. It’s not about constitutionality.

o Also, there must be no breach What if there is breach?

o There will be conversion to an ordinary civil action. This is the only such action that can be converted.

Do you need to pay filing fees when it is converted?o Yes, you need.

Which court has original jurisdiction?o RTC.o What if there is an allegation of unconstitutionality?

The RTC has no exclusive jurisdiction; you can file it elsewhere like the SC. The RTC only has exclusive jurisdiction if it is a pure question of declaratory relief

An action for declaratory relief must be dismissed if there is a pending action for unlawful detainer.

Malana: Reiterates that declaratory relief presupposes no actual breach.

Second paragraph of Sec. 1: -- covers “other similar remedies”o Removal of cloudo Quieting of titleo Reformation of instrument

When can you reform? There must be mutual mistake.

Can there be execution in a declaratory relief case?o Yes, nothing prevents the filing of a counterclaim in a

declaratory relief, and there can be execution pursuant to this.

Rule 64 – Review of judgments and Final orders of COMELEC/COA

1. This is actually a petition for certiorari. If you file under Rule 64, it will be named a Petition for Certiorari

2. The period to file a petition for certiorari under Rule 64 is 30 days, non-extendable.

o But the period can be interrupted, if an MR is allowed. In which case, you get the remaining period.

3. This has a limited application; it only covers decisions by the COMELEC and COA.

NOTE: For 43 and 64, all the attachments are certified true copies. The reason is you involve Quasi Judicial Agencies.

Rule 65 – Petition for certiorari, mandamus, prohibition

First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule 65: you do not talk about Rule 65. You have to fight on your first night.

Real first rule of Rule 65: this is not an appeal Elements of certiorari?

o 1. GADALEJo 2. No plain, available, speedy ordinary remedy

What is prohibition? Should there be GADALEJ?o Yes. The same is required – GADALEJ. No plain, available,

speedy ordinary remedy.o It is the same as certiorari.

Certiorari – whose decision can you question?o Judicial or QJA

Prohibition – whose decision can you question?o Judicial, QJA, or ministerial

What is the difference between prohibition and mandamus?o Limited to ministerial functions.o Here, you are requiring him to perform.

Can the OMB be compelled by mandamus to file an information?o No. It is not ministerial.

If you entered into a contract with X to build a house for you, and X received the advance of the contract price, and X did not build the house, can you compel his performance by mandamus?

o No; it is not ministerial. It is a contractual obligation – specific performance.

Can an OMB judgment be reviewed?

o Generally, under Rule 43.o However, if the decision of the OMB in a criminal case is

tainted with GADALEJ, Rule 65 Certiorari can be filed with SC. In prohibition, you cannot prohibit an act that has already been

performed. It is already moot.

Quo Warranto

Who commences an action for quo warranto?o Liban: Generally commenced by the government.o 1. President, directing the Sol-Geno 2. Sol-Gen, in the name of the government, when he has good

reason to beliefo 3. Upon the relation of another person, telling the Sol-Gen to

institute the action What is the special requirement if it is upon the

relation of another person? There must be approval by the court. If not

approved by the court, the Sol-Gen will not file.

o 4. The person instituting quo warranto in his own behalf must show that he is entitled to the office in dispute.

This is where the person aggrieved himself files (Sec 5)

What should he show? 1. His claim 2. And that he is entitled to the office

When can you file it?o 1. Usurpationo 2. Public officer who does or suffers an act constituting ground

to forfeit officeo 3. Association not duly incorporated

Quo warranto is also available if a government corporation has offended against its chapter.

It is a prerogative writ, where the government can exercise its right to demand proof of what right a person has over office

What is the venue?o 1. RTC where respondent resides

o 2. CAo 3. SCo This is another example of concurrent jurisdictiono What is the special rule?

If it is the Sol-Gen who institutes the action, it can be filed in the courts of the City of Manila

What is the period to institute an action for quo warranto?o One year from happening of the event

Can you recover damages from a quo warranto judgment?o One year from entry of judgment

A person who is declared by the court to be entitled to an office should require delivery of books, papers, documents in the possession of the usurper – if he refuses, he can be liable for contempt.

If there is a dispute between and among the Board of Directors of a private corporation, one group claiming that they have been usurped, is the proper remedy quo warranto?

o No. This is an intra-corporate dispute to be filed in the regular courts (RTC) having original jurisdiction.

Rule 67 – Expropriation

If it involves a government facility which is subject of expropriation, how much deposit do you need to give?

o Rule 67, Sec 2 provides that for real property, it must be assessed value, in general. If it is personal property, assessed [double check]

o Gingoyon: The government must pay at least the proffered value, not the assessed value. (RA 8974 – the deposit for immediate possession is proffered value.)

Who can expropriate?o National governmento LGUo Instrumentality of government

Veluso v. Panay:o LGUs by themselves have no inherent power of eminent

domain. Thus, strictly speaking, the power delegated to the LGUs is “inferior domain.”

o But an LGU can expropriate.

o What are the requisites before an LGU can exercise eminent domain?

1. Public use, public purpose, public welfare 2. [xxx] 3. Just compensation 4. Valid and definite offer previously made to owner

but not accepted Can a complaint for expropriation be withdrawn?

o It can be withdrawn for as long as there is no judgment yeto Once there is an order for expropriation, it can no longer be

withdrawn Government entered property (took it) and caused demolition of

improvements. But before there was order for expropriation, the government said “huwag na lang.” Can the government withdraw?

o Yes. But it is liable for damages. If there a subsisting contract between government and the private

person, there can be no expropriation contrary to that contract. Determination of just compensation is a judicial function. NPC v. Manubay: Is traversing a lot with transmission lines, is there

expropriation or easement fees?o There is expropriation

Mactan Cebu Airport: When you say “public purpose,” it must be the purpose stated, and not another purpose, even if public too

o The acquisition of government of property is limited to the public purpose stated, because it is not a simple purchase in fee simple, unlike normal purchase of property.