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GENERAL PRINCIPLES

I. GENERAL PRINCIPLES A. CONCEPT OF REMEDIAL LAW Q: What is procedural rule? Q: What is the concept of remedial law? A: It is a branch of public law, which prescribes the procedural rules to be observed in litigations, whether civil, criminal, or administrative, and in special proceedings, as well as the remedies or reliefs available in each case. (2006 Bar Question) Q: What is the importance of remedial law? A: It plays a vital role in the administration of justice. It lies at the very core of procedural due process, which means a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, and contemplates an opportunity to be heard before judgment is rendered (Herrera, Vol. I, p. 1, 2007 ed.) B. SUBSTANTIVE LAW AS DISTINGUISHED FROM REMEDIAL LAW Q: Distinguish substantive and remedial law A:
Substantive Law Remedial Law Part of the law which Refers to the legislation creates, defines or providing means or regulates rights concerning methods whereby causes life, liberty or property or of action may be the powers of agencies or effectuated, wrongs instrumentalities for the redressed and relief administration of public obtained (also known as affairs. Adjective Law). Does not create vested Creates vested rights. rights Retroactive in Prospective in application. application The Supreme Court is expressly empowered to Cannot be enacted by the promulgate procedural Supreme Court. rules. (2006 Bar Question)

7.

Court decisions (Herrera, Vol. I, p. 2, 2007 ed.)

A: Procedural rule is the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for their disregard or infraction.
Note: If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as substantive matter; but if it operates as a means of implementing an existing right, then the rule deals merely with procedure (Fabian v. Desierto, G.R. No. 129742, Sept. 16, 1998).

Q: How are remedial laws implemented in our system of government? A: They are implemented through the judicial system, including the prosecutory service of courts and quasi-judicial agencies. (2006 Bar Question) C. RULE-MAKING POWER OF THE SUPREME COURT 1. LIMITATIONS ON THE RULE-MAKING POWER OF THE SUPREME COURT Q: What are the limitations on the rule-making power of the Supreme Court? A: 1. It shall provide a simplified and inexpensive procedure for the speedy disposition of cases. The rules must be uniform for all the courts of the same grade. The rules must not diminish, increase or modify substantive rights (Cruz, Philippine Political Law, p. 281, 2002 ed.)

2. 3.

2. POWER OF THE SUPREME COURT TO AMEND AND SUSPEND PROCEDURAL RULES Q: May the Supreme Court suspend the application of the Rules of Court and exempt a case from its operation?

Q: What are the principal sources of remedial law? A: 1. 2. Constitution Different laws creating the judiciary, defining and allocating jurisdiction to courts of different levels Procedural laws and rules promulgated by the Supreme Court Circulars Administrative orders Internal rules

3. 4. 5. 6.

A: Yes. In the interest of just and expeditious proceedings, the Supreme Court may do so because the Rules were precisely adopted with the primary objective of enhancing fair trial and expeditious justice. (Republic v. CA, G.R. No. L-31303, May 31, 1978)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011


D. NATURE OF PHILIPPINE COURTS 1. MEANING OF A COURT Q: What is a court? A: It is an organ of the government, belonging to the judicial department, whose function is the application of laws to controversies brought before it and the public administration of justice. (Blacks Law Dictionary) 2. COURT AS DISTINGUISHED FROM A JUDGE Q: Distinguish court from a judge
Court Entire body in which the judicial power is vested May exist without a present judge Disqualification of a judge does not affect the court Judge Only an officer or member of the court There may be a judge without a court May be disqualified

5. COURTS OF GENERAL AND SPECIAL JURISDICTION Q: Distinguish Courts of general jurisdiction from special jurisdiction. A:
Courts of General jurisdiction Takes cognizance of all cases , civil or criminal, of a particular nature, or courts whose judgment is conclusive until modified or reversed on direct attack, and who are competent to decide on their own jurisdiction Courts of Special jurisdiction Takes cognizance of special jurisdiction for a particular purpose, or are clothed with special powers for the performance of specified duties, beyond which they have no authority of any kind

6. CONSTITUTIONAL AND STATUTORY COURTS Q: Distinguish constitutional court from statutory court. A:
Constitutional Court Created by the constitution e.g. SC Cannot be abolished by Congress without amending the Constitution Statutory Court Created by law e.g. CTA May be abolished by Congress by just simply repealing the law which created those courts

3. CLASSIFICATION OF PHILIPPINE COURTS Q: What are the classifications of Philippine courts? A: 1. Regular courts (Supreme Court, Court of Appeals, Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts , Municipal Circuit Trial Courts) Special courts (Sandiganbayan, Court of Tax Appels, Shari'a District Courts, Shari'a Circuit Courts) Quasi-courts or Quasi-judicial agencies (e.g Civil Service Commission)

7. COURTS OF LAW AND EQUITY Q: Distinguish Courts of law from equity. A:


Courts of Law Any tribunal duly administering the laws of the land Courts of Equity Any tribunal administering justice outside the law, being ethical rather than jural and belonging to the sphere of morals rather than of law. It is grounded on the precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law. (Herrera, Vol. I, p. 18, 2007 ed.) Adjudicates a controversy according to the common precepts of what is right and just without inquiring into the terms of the statutes

2.

3.

4. COURTS OF ORIGINAL AND APPELLATE JURISDICTION Q: Distinguish Courts of original jurisdiction from Courts of appellate jurisdiction. A:
Courts of Original jurisdiction Courts exercising jurisdiction in the first instance Courts of Appellate jurisdiction Superior Courts reviewing and deciding cases previously decided by a lower court

Decides a case according to what the promulgated law is

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

GENERAL PRINCIPLES
Q: What are courts of record? A: These are courts whose proceedings are enrolled and which are bound to keep written records of all trials and proceedings handled by them. R.A. No. 6031 mandates all Municipal Trial Courts to be courts of record. 8. PRINCIPLE OF JUDICIAL HIERARCHY Q: What is the policy of Judicial Hierarchy or hierarchy of courts? A: A higher court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts. The Supreme Court is a court of last resort and must so remain if it is to satisfactorily perform assigned to it. (1996 Bar Question) 9. DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY Q: What is Doctrine of Non-Interference or Judicial Stability? A: Courts of equal and coordinate jurisdiction cannot interfere with each others orders. Thus, the RTC has no power to nullify or enjoin the enforcement of a writ of possession issued by another RTC. The principle also bars a court from reviewing or interfering with the judgment of a coequal court over which it has no appellate jurisdiction or power of review.
Note: GR: No court has the authority to interfere by injunction with the judgment of another court of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of another court. XPN: The doctrine does not apply where a third party claimant is involved (Santos v. Bayhon, G.R. No. 88643, July 23, 1991).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011


II. JURISDICTION Q: What is jurisdiction? A: A: It is the power and authority of a court to try, hear, and decide a case and to carry its judgments into effect (Latin: juris and dico, which literally means I speak of the law). Q: Is the statement that Jurisdiction is conferred by substantive law accurate? A: No, because only jurisdiction over the subject matter is conferred by substantive law. Jurisdiction over the parties, issues and res is governed by procedural laws. A. JURISDICTION OVER THE PARTIES 1. HOW JURISDICTION OVER THE PLAINTIFF IS ACQUIRED Q: How is jurisdiction over the plaintiff acquired? A: It is acquired from the moment of filing the complaint, petition or initiatory pleading. 2. HOW JURISDICTION OVER THE DEFENDANT IS ACQUIRED Q: How is jurisdiction over the defendant acquired? A: It is acquired either: a. By his voluntary appearance in court and his submission to its authority b. By service of summons c. Other coercive process upon him
Note: Jurisdiction over the defendant is not essential in actions in rem or quasi in rem as long as the court has jurisdiction over the res (Herrera, Vol. I, p. 114, 2007 ed.) Jurisdiction Over the Subject Matter Determined by the allegations of the complaint (Riano, Civil Procedure: A Restatement for the Bar, p. 144, 2009 ed.) XPN: Where the real issues are evident from the record of the case, jurisdiction over the subject matter cannot be made to depend on how the parties word or phrase their pleadings (Herrera, Vol. I, p. 2, 2007 ed.) e.g. in ejectment cases in which the defendant averred the defense of the existence of tenancy relationship between the parties (Ibid p.148)
Note: Tenancy relationship is not presumed and it is not enough that it is alleged. There must be evidence to prove that it exists and that all its elements are established (Salmorin v. Zaldivar, G.R. No. 169691, July 23, 2008).

Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person.

Jurisdiction Over the Person Acquired by the filing of the petition in case of the plaintiff or by arrest (Rule 113), by valid service of summons or voluntary submission to the courts authority in case of the defendant (Ibid. p. 158)

Conferred by law which may be either the Constitution or a statute (Ibid. p. 143) Cannot be conferred by the agreement of the parties, by contract or by parties silence or acquiescence Ibid. p. 144)

It is sometimes made to depend, indirectly at least, on the partys volition GR: The appearance of the defendant in whatever form is submission to the jurisdiction of the court XPN: If the appearance is to object or question the courts jurisdiction (Ibid. p. 161)
Note: In criminal cases, jurisdiction over the accused is always required

B. JURISDICTION OVER THE SUBJECT MATTER 1. MEANING OF JURISDICTION OVER THE SUBJECT MATTER Q: What is jurisdiction over the subject matter? A: It is the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs. It is the power or authority to hear and determine cases to which the proceeding in question belongs.

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

JURISDICTION
2. JURISDICTION VERSUS THE EXERCISE OF JURISDICTION Q: Distinguish jurisdiction from exercise of jurisdiction. A: Jurisdiction is the authority to hear and decide cases. On the other hand, exercise of jurisdiction is any act of the court pursuant to such authority, which includes making decisions. 3. ERROR OF JURISDICTION AS DISTINGUISHED FROM ERROR OF JUDGMENT Q: Distinguish error of jurisdiction from error of judgment. A:
Error of Jurisdiction One where the court, officer or quasi-judicial body acts without or in excess of jurisdiction, or with grave abuse of discretion Renders a judgment void or at least voidable Correctible by certiorari There is an exercise of jurisdiction in the absence of jurisdiction Error of Judgment One that the court may commit in the exercise of jurisdiction; it includes errors of procedure or mistakes in the courts findings Does not make the courts decision void Correctible by appeal The court acted with jurisdiction but committed procedural errors in the appreciation of the facts or the law (1989 Bar Question)

5. DOCTRINE OF PRIMARY JURISDICTION Q: What is Doctrine of Primary Jurisdiction? A: Courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge and experience of said tribunal in determining technical and intricate matters of fact (Villaflor v. CA, G.R. No. 95694, Oct. 9, 1997). Q: What is Doctrine of Ancillary Jurisdiction? A: It involves the inherent or implied powers of the court to determine issues incidental to the exercise of its primary jurisdiction.
Note: Under its ancillary jurisdiction, a court may determine all questions relative to the matters brought before it, regulate the manner in which a trial shall be conducted, determine the hours at which the witnesses and lawyers may be heard, and grant an injunction, attachment or garnishment.

6. DOCTRINE OF ADHERENCE TO JURISDICTION Q: What is Doctrine of Adherence to Jurisdiction or Continuity of Jurisdiction? A: GR: Jurisdiction, once attached, cannot be ousted by subsequent happenings or events although of a character which would have prevented jurisdiction from attaching in the first instance, and the court retains jurisdiction until it finally disposes of the case. XPNs: 1. Where a subsequent statute expressly prohibits the continued exercise of jurisdiction; 2. Where the law penalizing an act which is punishable is repealed by a subsequent law; 3. When accused is deprived of his constitutional right such as where the court fails to provide counsel for the accused who is unable to obtain one and does not intelligently waive his constitutional right; 4. Where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment;

4. HOW JURISDICTION IS CONFERRED AND DETERMINED


Note: discussion on how jurisdiction is conferred is on page 4.

Q: What are the instances in which jurisdiction cannot be conferred? A: 1. 2. 3. 4. 5. By the administrative policy of any court; A courts unilateral assumption of jurisdiction; An erroneous belief by the court that it has jurisdiction; By the parties through a stipulation e.g. contract; The agreement of the parties acquired through, or waived, enlarged or diminished by, any act or omission of the parties; Parties silence, acquiescence or consent (Riano, Civil Procedure: A Restatement for the Bar, p. 143, 11th ed.).

6.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011


5. When the proceedings in the court acquiring jurisdiction is terminated, abandoned or declared void; Once appeal has been perfected; Curative statutes (Herrera, Vol. I, p. 106, 2007 ed.). because it cannot be tolerated by reason of public policy (Filipinas Shell Petroleum Corp. v. Dumlao, G.R. No. L-44888, Feb. 7, 1992). 3. A party who invokes the jurisdiction of the court to secure affirmative relief against his opponents cannot repudiate or question the same after failing to obtain such relief (Tajonera v. Lamaroza, G.R. No. L-48907, 49035, Jan. 19, 1982).

6. 7.

Q: Does retroactivity of a law affect jurisdiction? A: No. Jurisdiction being a matter of substantive law, the established rule is that statute in force at the time of the commencement of the action determines jurisdiction. (Herrera, Vol. I, p. 105, 2007 ed.) 7. OBJECTIONS TO JURISDICTION OVER THE SUBJECT MATTER Q: What is the effect of lack of jurisdiction over the subject matter? A: When it appears from the pleadings or evidence on record that the court has no jurisdiction over the subject matter, the court shall dismiss the same. (Sec. 1, Rule 9). The court may on its own initiative object to an erroneous jurisdiction and may ex mero motu take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right to determine its own jurisdiction (Riano, Civil Procedure: A Restatement for the Bar, p. 154, 2009 ed.). Q: May jurisdiction of the court be raised or questioned at any time? A: GR: Yes. The prevailing rule is that jurisdiction over the subject matter may be raised at any stage of the proceedings (Riano, Civil Procedure: A Restatement for the Bar, p. 154, 2009 ed.).
Note: Jurisdiction can be questioned even for the first time on appeal (Herrera, Vol. I, p. 91, 2007 ed.)

Note: Under the Omnibus Motion Rule, a motion attacking a pleading like a motion to dismiss shall include all grounds then available and all objections not so included shall be deemed waived. The defense of lack of jurisdiction over the subject matter is however, a defense not barred by the failure to invoke the same in a motion to dismiss already filed. Even if a motion to dismiss was filed and the issue of jurisdiction was not raised therein, a party may, when he files an answer, raise the lack of jurisdiction as an affirmative defense because this defense is not barred under the omnibus motion rule.

Q: Will the failure to exhaust administrative remedies affect the jurisdiction of the court? A: GR: No. It is not jurisdictional but the case will be dismissed on the ground of lack of cause of action. It only renders the action premature. (Carale v. Abarintos, G.R. No. 120704, March 3, 1997; Pestanas v. Dyogi, 81 SCRA 574) XPN: Before a party may be allowed to invoke the jurisdiction of the courts, he is expected to have exhausted all means of administrative redress (Herrera, Vol. I, p. 267, 2007 ed.). XPNS TO THE XPN: 1. Question raised is purely legal; 2. When the administrative body is in estoppels; 3. When the act complained of is patently illegal; 4. When there is need for judicial intervention; 5. When the respondent acted in disregard of due process; 6. When the respondent is the alter-ego of the President, bear the implied or assumed approval of the latter; 7. When irreparable damage will be suffered; 8. When there is no other plain, speedy and adequate remedy;

XPNs: 1. Estoppel by laches. SC barred a belated objection to jurisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings(Tijam v. Sibonghanoy, G.R. No. L-21450, Apr. 15, 1968). 2. Public policy One cannot question the jurisdiction which he invoked, not because the decision is valid and conclusive as an adjudication, but

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

JURISDICTION
9. When strong public interest is involved; and 10. In quo warranto proceedings (Herrera, Vol. I, p. 268, 2007 ed.)
Note: The rule on exhaustion of administrative remedies and doctrine of primary jurisdiction applies only when the administrative agency exercises quasijudicial or adjudicatory function (Associate Communications and Wireless Services v. Dumalao, G.R. 136762, Nov. 21, 2002).

involving the status of the parties or suits involving the property in the Philippines of non-resident defendants. E. JURISDICTION OF COURTS Q: Which court has jurisdiction over the following? A: 1. Boundary dispute between municipalities RTCs are courts of general jurisdiction. Since there is no legal provision specifically governing jurisdiction over boundary disputes between a municipality and an independent component city of the same province, it follows that RTCs have the power and authority to hear and determine such controversy (Municipality of Kananga v. Madrona, G.R. No. 141375, Apr. 30, 2003). 2. Expropriation It is within the jurisdiction of the RTC because it is incapable of pecuniary estimation. It does not involve the recovery of sum of money. Rather, it deals with the exercise by the government of its authority and right to take property for public use. 3. Labor dispute An action for damages for abuse of right as an incident to dismissal is within the exclusive jurisdiction of the labor arbiter. But the labor arbiter has no jurisdiction for claims of damages based on quasi-delict which has no reasonable connection with the employeremployee relations claims under the Labor Code (Ocheda v. CA, G.R. No. 85517, Oct. 16, 1992).
Note: Where no employer-employee relationship exists between the parties and no issue involved may be resolved by reference to the Labor Code, other labor statutes or any collective bargaining agreement, it is the regular courts that has jurisdiction (Jaguar Security Investigation Agency v. Sales, G.R. No. 162420, Apr. 22, 2008).

8. EFFECT OF ESTOPPEL ON OBJECTIONS TO JURISDICTION Q: What is the effect of estoppel by failure to object lack of jurisdiction? A: The active participation of a party in a case is tantamount to recognition of that courts jurisdiction and will bar a party from impugning the courts jurisdiction. This only applies to exceptional circumstances. (Francel Realty Corp. v. Sycip, 469 SCRA 424; Concepcion v. Regalado, GR 167988, Feb. 6, 2007). C. JURISDICTION OVER THE ISSUES Q: What is jurisdiction over the issues? A: It is the power of the court to try and decide issues raised in the pleadings of the parties or by their agreement in a pre-trial order or those tried by the implied consent of the parties. It may also be conferred by waiver or failure to object to the presentation of evidence on a matter not raised in the pleadings D. JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION Q: How is jurisdiction over the res acquired? A: It is acquired either by: 1. The seizure of the property under legal process. 2. As a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. (Banco Espaol Filipino vs. Palanca, 37 Phil. 291). 3. The court by placing the property of thing under its custody (custodia legis). Example: attachment of property. 4. The court through statutory authority conferring upon it the power to deal with the property or thing within the courts territorial jurisdiction. Example: suits

4. Forcible entry and unlawful detainer The MTC has exclusive original jurisdiction. In such cases, when the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the question of ownership, the issue of ownership shall be resolved only to determine the issue of possession. All ejectment cases are covered by the Rule on Summary Procedure and are within the jurisdiction of the inferior courts regardless of whether they involve questions of ownership.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011


The courts in ejectment cases may determine questions of ownership whenever necessary to decide the question of possession (Gayoso v. Twenty-Two Realty Development Corp., G.R. No. 147874, July 17, 2006; Santiago v. Pilar Development Corp., G.R. No. 153628, July 20, 2006). 5. Authority to conduct administrative investigations over local elective officials and to impose preventive suspension over elective provincial or city officials It is entrusted to the Secretary of Local Government and concurrent with the Ombudsman upon enactment of R.A. 6770. There is nothing in the Local Government Code of 1991 to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act (Hagad v. Dadole, G.R. No. 108072, Dec. 12, 1995). 6. Appeals involving orders arising from administrative disciplinary cases originating from the Office of the Ombudsman It may be appealed to the Supreme Court by filing a petition for certiorari within 10 days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court (Sec. 27, R.A. 6770). 7. Public school teachers Generally, the Ombudsman must yield to the Division School Superintendent in the investigation of administrative charges against public school teachers (Ombudsman v. Galicia, G.R. No. 167711, Oct. 10, 2008). 8. Enforcement of a money claim against a local government unit Commission on Audit (COA) has the primary jurisdiction to pass upon the money claim. It is within the COA's domain to pass upon money claims against the government or any subdivision thereof as provided for under Section 26 of the Government Auditing Code of the Philippines. Courts may raise the issue of primary jurisdiction sua sponte (on its own will or motion; means to act spontaneously without prompting from another party) and its invocation cannot be waived by the failure of the parties to argue it as the doctrine exists for the proper distribution of power between judicial and administrative bodies and not for the convenience of the parties (Euro-Med Laboratories, Phil., Inc. v. Province of Batangas, G.R. No. 148106, July 17, 2006).

1. SUPREME COURT
Criminal Cases Exclusive Original Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari, mandamus against the following: prohibition and mandamus against the following: 1. Court of Appeals 1. Court of Appeals 2. Commission on Elections En Banc 2. Sandiganbayan 3. Commission on Audit 4. Sandiganbayan Appellate 1. In all criminal cases involving offenses from 1. Appeal by petition for review on certiorari: which the penalty is reclusion perpetua or life a. Appeals from the CA; imprisonment and those involving other b. Appeals from the CTA; offenses, which although not so punished c. Appeals from RTC exercising original jurisdiction in arose out of the same occurrence or which the following cases: may have been committed by the accused on i. If no question of fact is involved and the case the same occasion involves: Constitutionality or validity of treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation b) Legality of tax, impost, assessments, or toll, or penalty in relation thereto c) Cases in which jurisdiction of lower court is in issue ii. All cases in which only errors or questions of law are involved. Special civil action of certiorari filed within 30 days against the COMELEC / COA a)
Note: In criminal cases, when the penalty imposed is life imprisonment or reclusion perpetua, appeal is automatic to the CA. (A.M. No. 04-9-05-SC; People v. Mateo y Garcia, G.R. No. 147678-87, July 7, 2004)

Civil Cases

2. 3. 4. 5.

2.

Criminal cases in which the death penalty is imposed by the Sandiganbayan Appeals from the CA; Appeals from the Sandiganbayan; Appeals from RTC in which only errors or questions of law are involved.

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

JURISDICTION
Concurrent With CA Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari, mandamus against the following: prohibition and mandamus against the RTC and a. NLRC under the Labor Code. lower courts.
Note: The petitions must first be filed with the CA, otherwise, they shall be dismissed. (St. Martin Funeral Home v. CA, G.R. No. 130866, Sept. 16, 1998).

1.

b. c. d. 2.

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

Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC). With CA and RTC 1. Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari, 2. Petitions for issuance of writs of certiorari, prohibition and prohibition and mandamus against the lower courts mandamus against the lower courts or other bodies or bodies. With CA, SB and RTC 1. Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ 2. Petition for writ of habeas data, where the action involves of habeas data public data or government office With RTC With Sandiganbayan Actions affecting ambassadors and other public ministers and Petitions for mandamus, prohibition, certiorari, consuls injunctions and ancillary writs in aid of its appellate jurisdiction including quo warranto arising or that may arise in in cases filed under EO Nos. 1, 2, 14 and 14-A Note: 1. g. The following cases must be decided by the SC en banc: a. All cases involving the constitutionality of a treaty, international or executive agreement, or law; b. Cases involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations; c. A case where the required number of vote in a division is not obtained; d. A doctrine or principle laid down in a decision rendered en banc or by division is modified, or reversed; e. All other cases required to be heard en banc under the Rules of Court (Sec. 5, Art. VIII, 1987 Constitution). Environmental laws and regulations covered by the writ of kalikasan includes but not limited to the following: a. Act No. 3572 - Prohibition Against Cutting of Tindalo,Akli, and Molave Trees; b. P.D. No. 705 - Revised Forestry Code; c. P.D. No. 856 - Sanitation Code; d. P.D. No. 979 - Marine Pollution Decree; e. P.D. No. 1067 - Water Code; f. P.D. No. 1151 Philippine Environmental Policy of 1977; h. P.D. No. 1433 - Plant Quarantine Law of 1978; P.D. No. 1586 - Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; R.A. 3571 - Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; R.A. 4850 - Laguna Lake Development Authority Act; R.A. 6969 - Toxic Substances and Hazardous Waste Act; R.A. 7076 - Peoples Small-Scale Mining Act; R.A. 7586 - National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; R.A. 7611 - Strategic Environmental Plan for Palawan Act; R.A. 7942 - Philippine Mining Act; R.A. 8371 - Indigenous Peoples Rights Act; R.A. 8550 - Philippine Fisheries Code;

i.

j. k. l. m.

2.

n. o. p. q.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

UST GOLDEN NOTES 2011


r. s. R.A. 8749 - Clean Air Act; R.A. 9003 - Ecological Solid Waste Management Act; t. R.A. 9072 - National Caves and Cave Resource Management Act; u. R.A. 9147 - Wildlife Conservation and Protection Act; v. R.A. 9175 - Chainsaw Act; w. R.A. 9275 - Clean Water Act; x. R.A. 9483 - Oil Spill Compensation Act of 2007; y. Provisions in CA No. 141, The Public Land Act; R.A. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. 7160, Local Government Code of 1991; R.A. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. 7308, Seed Industry Development Act of 1992; R.A. 7900, High-Value Crops Development Act; R.A. 8048, Coconut Preservation Act; R.A. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. 9522, The Philippine Archipelagic Baselines Law; R.A. 9593, Renewable Energy Act of 2008; R.A. 9637, Philippine Biofuels Act; and z. Other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources (Sec. 2, Rule 1, A.M. No. 096-8-SC). The following are intra-corporate controversies within the jurisdiction of the RTC: a. Cases involving devises or schemes employed by or any acts, of the board of directors, business associates, its officers or partnership, amounting fraud or misrepresentation which may be detrimental to the interest of the public and/or the stockholders, partners, members of the associations or organizations registered with the Security and Exchange Commission; Controversies arising out of intracorporate or partnership relations, between and among stockholders, members or associates, respectively; and between such corporation, partnership or association and the state in so far as it concerns their individual franchise or right to exist as such entity; Controversies in the election or appointments of directors, trustees, officers or managers of such corporation, partnerships or associations; and Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership or association posses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities but is under the management of a Rehabilitation Receiver or Management Committee (Sec. 5.2, SRC).

b.

c.

d.

3.

2. COURT OF APPEALS
Criminal Cases Exclusive Original Actions for annulment of judgments of RTC based upon 1. Actions for annulment of judgments of RTC (Sec. 9 extrinsic fraud or lack of jurisdiction (Sec. 9 B.P. 129). B.P. 129). 2. Crimes of Terrorism under the Human Security Act of 2007 or R.A. 9372 Appellate 1. Final judgments, decisions, resolutions, orders, Judgments or decisions of RTC (except those appealable awards of: to the SC or SB): a. RTC a. exercising its original jurisdiction; i. In the exercise of its original jurisdiction; b. exercising its appellate jurisdiction; and ii. In the exercise of its appellate jurisdiction; c. where the imposable penalty is: b. Family Courts; i. life imprisonment or reclusion perpetua; c. RTC on the questions of constitutionality, ii. a lesser penalty for offenses committed on validity of tax, jurisdiction involving questions of the same occasion or which arose from the fact, which should be appealed first to the CA; same occurrence that gave rise to the offense d. Appeals from RTC in cases appealed from MTCs punishable reclusion perpetua or life which are not a matter of right. imprisonment (Sec. 3, Rule 122). 2. Appeal from MTC in the exercise of its delegated iii. Death (Sec. 10, Rule 122). Civil Cases

10

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

JURISDICTION
jurisdiction (R.A. 7691). Appeals from Civil Service Commission; Appeals from quasi-judicial agencies under Rule 43; Appeals from the National Commission on Indigenous Peoples (NCIP); and Appeals from the Office of the Ombudsman in administrative disciplinary cases (Mendoza-Arce v. Office of the Ombudsman, G.R. No. 149148, Apr. 5, 2002). Concurrent With SC 1. Petitions for issuance of writs of Petitions for issuance of writs of certiorari, prohibition certiorari, prohibition and mandamus against and mandamus against the RTCs and lower courts. the following: a. NLRC under the Labor Code. b. Civil Service Commission c. Quasi-judicial agencies d. RTCs and other lower courts. 2. Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC). With SC and RTC Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari, prohibition Petitions for the issuance of writs of certiorari, and mandamus against the lower courts or bodies. prohibition and mandamus against the lower courts With SC, SB and RTC Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ of Petition for writ of habeas data, where the action habeas data involves public data or government office

3. 4. 5. 6.

1. 2.

1. 2.

3. COURT OF TAX APPEALS


Criminal Cases Exclusive Original In tax collection cases involving final and executory All criminal cases arising from violation of the NIRC of the assessments for taxes, fees, charges and penalties where TCC and other laws, part of laws, or special laws the principal amount of taxes and fees, exclusive of administered by the BIR or the BOC where the principal charges and penalties claimed is less than P1M tried by the amount of taxes and fees, exclusive of charges and proper MTC, MeTC and RTC. penalties claimed is less that P1M or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate) Appellate In tax collection cases involving final and executory 1. Over appeals from the judgment, resolutions or assessments for taxes, fees, charges and penalties where orders of the RTC in tax cases originally decided by the principal amount of taxes and fees, exclusive of them, in their respective territorial jurisdiction, charges and penalties claimed is less than P1M tried by the 2. Over petitions for review of the judgments, proper MTC, MeTC and RTC. resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs, and MCTCs in their respective jurisdiction Concurrent With CIR 1. Decisions in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR; 2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied denial; With RTC Decisions, orders or resolutions of the in local taxes originally decided or resolved by them in the exercise of their original or appellate jurisdiction;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

Tax Cases

11

UST GOLDEN NOTES 2011


With Commissioner of Customs Decisions in cases involving liability for customs duties, fees or other charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or 2. Other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC; With Central Board of Assessment Appeals Decisions in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals; With Secretary of Finance Decision on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the government under Sec. 2315 of the Tariff and Customs Code; With Secretary of Trade and Industry and the Secretary of Agriculture Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties. 1.

4. SANDIGANBAYAN
Criminal Cases Exclusive Original Cases involving violations of: 1. Violation of R.A. 3019 (Anti-Graft and Corrupt Practices a. EO No. 1 (Creating the PCGG); Act) where one or more of the accused are officials b. EO No. 2 (Illegal Acquisition and occupying the following positions in the government, Misappropriations of Ferdinand Marcos, Imelda whether in permanent. Acting or interim capacity, at the Marcos their close relatives, subordinates, time of the commission of the offense: business associates, dummies, agents or a. Officials occupying a position classified as Grade 27 nominees); or higher of the Compensation and Position c. EO No. 14 [Cases involving the ill-gotten wealth Classification Act of 1989 (R.A. 6758) in the: of the immediately mentioned persons (Marcos i. Executive branch including those occupying and dummies)]; and the position of regional director; and d. EO No. 14-A (amendments to EO No. 14) (Sec. 2, ii. All other national or local officials. R.A. 7975 as amended by R.A. 8294). b. Members of Congress c. Members of the judiciary without prejudice to the Constitution; and d. Chairmen and members of the Constitutional Commissions without prejudice to the Constitution. 2. Felonies or offenses, whether simple or complexed with other crimes committed by the public officials and employees above mentioned in relation to their office; and 3. Cases filed pursuant to EO Nos. 1, 2, 14 and 14-A (Sec. 2, R.A. 7975 as amended by R.A. 8249). Appellate Appeals from final judgments, resolutions or orders of the RTC, whether in the exercise of their original or appellate jurisdiction, in cases involving public officials or employees not otherwise mentioned in the preceding enumeration. Concurrent
With SC

Civil Cases

Petitions for certiorari, prohibition, mandamus, Petitions for certiorari, prohibition, mandamus, habeas habeas corpus, injunction and other ancillary writs in corpus, injunction and other ancillary writs in aid of its aid of its appellate jurisdiction, including quo appellate jurisdiction, including quo warranto arising in cases warranto arising in cases falling under Executive Order falling under Executive Order Nos. 1, 2, 14 and 14-A. Nos. 1, 2, 14 and 14-A. With SC, CA and RTC Petitions for the issuance of writ of amparo and writ Petitions for the issuance of writ of amparo and writ of of habeas data. habeas data.

Q: Governor Charles of Tarlac was charged with indirect bribery before the Sandiganbayan for

accepting a car in exchange for the award of a series of contracts for medical supplies. The

12

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

JURISDICTION
Sandiganbayan, after going over the information, found the same to be valid and ordered the suspension of Charles. The latter contested the suspension claiming that under the law (Sec. 13, R.A. 3019), his suspension is not automatic upon the filing of the information and his suspension under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of the Decentralization Act of 1967 (R.A. 5185). The Sandiganbayan overruled Charles contention stating that the suspension under the circumstances is mandatory. Is the court's ruling correct?

A: Yes. Charles suspension is mandatory, although not automatic. It is mandatory after the determination of the validity of the information in a pre-suspension hearing. The purpose of the suspension is to prevent the accused public officer from frustrating or hampering his prosecution by intimidating or influencing witnesses or tampering with evidence or from committing further acts of malfeasance while in office. (2001 Bar Question)

5. REGIONAL TRIAL COURTS


Criminal Cases Exclusive Original 1. Criminal cases not within exclusive jurisdiction of 1. Actions in which the subject of litigation is incapable any court, tribunal or body (Sec. 20, BP 129). of pecuniary estimation; a. Includes criminal cases where the penalty 2. Actions involving title to or possession of real provided by law exceeds 6 years imprisonment property or any interest therein where the assessed irrespective of the fine (R.A. 7691). value exceeds P20,000 or P50,000 in Metro Manila, b. Includes criminal cases not falling within the except forcible entry and unlawful detainer; exclusive original jurisdiction of the 3. Actions in admiralty and maritime jurisdiction where Sandiganbayan where the imposable penalty is demand or claim exceeds P300,000 or P400,000 in imprisonment more than 6 years and none of Metro Manila; the accused is occupying positions classified as 4. Matters of probate, testate or intestate, where gross Grade 27 and higher (Sec. 4, P.D. 1606 as value of estate exceeds P300,000 or P400,000 in amended by R.A. 8249). Metro Manila; 2. Cases where the only penalty provided by law is a 5. Cases not within the exclusive jurisdiction of any fine exceeding P4,000; court, tribunal, person or body exercising judicial or 3. Other laws which specifically lodge jurisdiction in quasi-judicial function; the RTC: 6. Civil actions and special proceedings falling within a. Law on written defamation or libel; exclusive original jurisdiction of Juvenile and b. Decree on Intellectual Property; Domestic Relations Court and Court of Agrarian c. Violations of Dangerous Drugs Act regardless Reforms; of the imposable penalty except when the 7. Other cases where the demand, exclusive of interest, offender is under 16 and there are Juvenile and damages, attorneys fees, litigation expenses and Domestic Relations Court in the province. costs, or value of property in controversy exceeds 4. Cases falling under the Family Courts in areas where P300,000 or P400,000 in Metro Manila (Sec. 19, BP there are no Family Courts (Sec.24, B.P. 129). 129 as amended by R.A. 7691); and 5. Election offenses (Omnibus election code) even if 8. Intra-corporate controversies under Sec. 5.2 of the committed by an official with salary grade of 27 or Securities and Regulation Code. higher Concurrent With SC, SB and CA 1. Writ of amparo Petitions for the issuance of writ of amparo and writ of 2. Writ of habeas data habeas data With SC Actions affecting ambassadors and other public ministers and consuls [Sec. 21 (2) of BP 129] With SC and CA 1. Certiorari, prohibition and mandamus against lower courts and bodies; 2. Habeas corpus and quo warranto; With MTC Cases involving enforcement or violations of environmental and other related laws, rules and regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC). Special
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

Civil Cases

13

UST GOLDEN NOTES 2011


SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the interest of justice (Sec. 23, BP 129). Appellate
GR: All cases decided by lower courts (MTC etc.) in their respective territorial jurisdictions. XPN: Decisions of lower courts in the exercise of delegated jurisdiction.

Q: What is the test to determine whether an action is capable of pecuniary estimation? A: The criterion is the nature of the principal action or the remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the MTCs or in the RTCs would depend on the amount of the claim.

However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought like specific performance suits and in actions for support, or for annulment of a judgment or foreclosure of mortgage, such actions are incapable of pecuniary estimation, and are cognizable exclusively by the RTCs (Barangay Piapi v. Talip, G.R. No. 138248, Sept. 7, 2005).

6. FAMILY COURTS
Criminal Cases Exclusive Original 1. Where one or more of the accused is/are below 18 Petitions for guardianship, custody of children, habeas years of age but not less than 9 years of age; corpus in relation to minor; 2. When one or more of the victims is a minor at the time Petitions for adoption of children and its revocation; of the commission of the offense (R.A. 8369, Act Complaints for annulment and declaration of nullity of establishing the family courts); marriage and those relating to marital status and 3. Cases against minors cognizable under the Dangerous property relations of spouses or those living together Drugs Act, as amended; and under different status and agreements; and petitions 4. Violations of R.A. 7610 or the Special Protection of for dissolution of conjugal partnership of gains; Children Against Child Abuse, Exploitation and Petitions for support and/or acknowledgment; Discrimination Act, as amended by R.A. 7658; and Summary judicial proceedings under the Family Code 5. Cases of domestic violence against: of the Philippines; a. Women involving acts of gender-based violence Petitions for declaration of status of children as that result, or likely to result in physical, sexual or abandoned, dependent or neglected children, psychological harm or suffering to women; and petitions for voluntary or involuntary commitment of other forms of physical abuse such as battering or children, the suspension, termination, or restoration of threats and coercion which violate a womans parental authority and other cases cognizable under personhood, integrity and freedom of movement; PD 603, EO 56 (Series of 1986) and other related laws; b. Children which include the commission of all and forms of abuse, neglect, cruelty, exploitation, Petitions for the constitution of the family home violence and discrimination and all other (rendered unnecessary by Art. 153, Family Code) (Sec. conditions prejudicial to their development (Sec. 5, R.A. 8369). 5, R.A. 8369) Civil Cases

1. 2. 3.

4. 5. 6.

7. 8.

7. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS


Civil Cases Exclusive Original 1. Actions involving personal property where the value of the 1. property does not exceed P300,000 or, in Metro Manila P400,000; 2. Actions for claim of money where the demand does not 2. exceed P300,000 or, in Metro Manila P400,000; 3. Probate proceedings, testate or intestate, where the value of the estate does not exceed P300,000 or, in Metro Manila P400,000; 3.
Note: In the foregoing, claim must be exclusive of interest, damages, attorneys fees, litigation expense, and costs (Sec. 33, BP 129 as amended by R.A. 7691).

Criminal Cases All offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine and regardless of other imposable accessory or other penalties; In offenses involving damage to property through criminal negligence where the imposable fine does not exceed P10,000 (Sec. 32, BP 129 as amended by R.A. 7691); Where the only penalty provided by law is a fine not exceeding P4,000 (Admin. Circular No. 09-94, June 14, 1994); and Those covered by the Rules on Summary Procedure, i.e.

4.

14

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

JURISDICTION
4. Actions involving title to or possession of real property or any interest therein where the value or amount does not exceed P20,000 or, in Metro Manila P50,000 exclusive of interest damages, attorneys fees, litigation expense, and costs; (2008 Bar Question) 5. Maritime claims where the demand or claim does not exceed P300,000 or, in Metro Manila P400,000 (Sec. 33, BP 129 as amended by R.A. 7691); 6. Inclusion or exclusion of voters (Sec. 138, BP 881); 7. Those covered by the Rules on Summary Procedure: a. Forcible entry and unlawful detainer; b. Other civil cases except probate where the total amount of the plaintiffs claims does not exceed P100,000 or, in Metro Manila P200,000 exclusive interest and costs (as amended by A.M. No. 02-11-09-SC). 8. Those covered by the Rules on Small Claims, i.e. actions for payment of money where the claim does not exceed P100,000 exclusive of interest and costs. Violations of traffic laws, rules and regulations; b. Violations of the rental law; c. Violations of municipal or city ordinances; d. Violations of BP 22 (A.M. No. 00-11-01-SC); e. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of P 1,000 irrespective of other penalties or civil liabilities arising therefrom. 5. All offenses committed by public officers and employees in relation to their office, including government-owned or controlled corporations, and by private individuals charged as co-principals, accomplices or accessories, punishable with imprisonment not more than 6 years or where none of the accused holds a position classified as Grade 27 and higher (Sec. 4, P.D. 1606 as amended by R.A. 8249). Delegated a.

Cadastral or land registration cases covering lots where: a. There is no controversy or opposition; b. Contested but the value does not exceed P100,000 (Sec. 34, BP 129 as amended by R.A. 7691).
Note: The value shall be ascertained by the affidavit of the claimant or agreement of the respective claimants (Sec. 34, BP 129 as amended by R.A. 7691).

Special Petition for habeas corpus in the absence of all RTC judges in Application for bail in the absence of all RTC judges in the province or city (Sec. 35, BP 129). the province or city. Concurrent With RTC Cases involving enforcement or violations of environmental and other related laws, rules and regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC).

8. SHARIAH COURTS
Exclusive Original 1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws; 2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or aggregate value of the property; 3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws; 4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and 5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction. Concurrent With all civil courts
1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an asylum; 2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit Court; and 3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

15

UST GOLDEN NOTES 2011


F. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY CONCILIATION
Katarungang Pambarangay Law To effect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and consequently help relieve the courts of docket congestion. (Preamble of P.D. 1508) (1999 Bar Qestion) 1. For disputes between residents of the same barangay: the dispute must be brought for settlement in the said barangay. For disputes between residents of different but adjoining barangays and the parties agree to submit their differences to amicable settlement: within the same city or municipality where any of the respondents reside at the election of the complainant. For disputes involving real property or any interest when the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon therein shall be brought in the barangay where the real property or larger portion thereof is situated. For disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located. Rule on Small Claims Cases Purpose / Object To provide a simpler and more inexpensive and expeditious means of settling disputes involving purely money claims than the regular civil process Rules on Summary Procedure To achieve an expeditious and inexpensive determination of the cases defined to be governed by the Rules on Summary Procedure

1. 2. 3. 4.

Where to file Metropolitan Trial Courts Municipal Trial Courts in Cities Municipal Trial Courts Municipal Circuit Trial Courts

1. 2. 3. 4.

Metropolitan Trial Courts Municipal Trial Courts in Cities Municipal Trial Courts Municipal Circuit Trial Courts

2.

3.

4.

All disputes involving parties who actually reside in the same city or municipality may be the subject of the proceedings for amicable settlement in the barangay.

Cases Covered Civil Cases Small claims cases civil claims 1. All cases of forcible entry and which are exclusively for the unlawful detainer irrespective of payment or reimbursement of a the amount of damages or unpaid sum of money not exceeding rentals sought to be recovered. P100,000 exclusive of interest and Where attorneys fees are costs, either awarded, the same shall not 1. Purely civil in nature where exceed P20,000; and the claim or relief prayed for 2. All other civil cases, except by the plaintiff is solely for probate proceedings, where the payment or reimbursement of total amount of plaintiffs claim sum of money, or does not exceed P100,000 or 2. The civil aspect of criminal does not exceed P200,000 in actions, either filed before the Metro Manila, exclusive of institution of the criminal interests and costs (A.M. No. 02action, or reserved upon the 11-09-SC, Nov. 25, 2005). filing of the criminal action in court, pursuant to Rule 111 of the Revised Rules of Criminal Procedure.

16

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

JURISDICTION
These claims or demands may be: 1. For money owed under any of the following: a. Contract of Lease b. Contract of Loan c. Contract of Services d. Contract of Sale e. Contract of Mortgage 2. For damages arising from any of the following: a. Fault or negligence b. Quasi-contract c. Contract 3. The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 Criminal Cases When punishable by imprisonment of not more than 1 year or fine of not more than 5,000. (Sec. 408, LGC) 1. Violations of traffic laws, rules and regulations; 2. Violations of the rental law; 3. Violations of municipal or city ordinances; 4. Violations of B.P. 22 or the Bouncing Checks Law (A.M. No. 00-11-01-SC, Apr. 15, 2003); 5. All other criminal cases where the penalty is imprisonment not exceeding 6 months and/or a fine of P 1,000 irrespective of other penalties or civil liabilities arising therefrom; and 6. Offenses involving damage to property through criminal negligence where the imposable fine is not exceeding P10,000. 1. Cases excluded Criminal actions are excluded pursuant to certain Constitutional limitations granting the accused in all criminal prosecutions the right to be heard by himself and counsel (Sec. 14[2], Bill of Rights). An example is a case for libel or slander. However, the civil aspect of a criminal action which seeks recovery of money as damages may be heard as a small claim if reserved or instituted separately prior to the filing of the criminal case. Some civil cases regardless of how little the amount involved cannot be filed as small claims. Examples are a suit to force a person to fix a damaged good or a demand for the fulfillment of an This Rule shall not apply to a civil case where the plaintiff's cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

1.

2.

3.

4. 5.

6.

Where one party is the government or any subdivision or instrumentality thereof; Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00; Offenses where there is no private offended party; Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties

2.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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thereto agree to submit their differences to amicable settlement by an appropriate lupon; Such other classes of disputes which the President of the Philippines may determine in the interest of justice; and Violations of R.A. 9262, VAWC Act. obligation which is not purely for money.

7.

8.

G. TOTALITY RULE Q: What is the Aggregate or Totality Rule? A: Where there are several claims or causes of actions between the same or different parties embodied in one complaint, the amount of the demand shall be the totality of the claims in all causes of action irrespective of whether the causes of action arose out of the same or different transaction (Rule 2, Sec.5 [d]).

18

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

CIVIL PROCEDURE
III. CIVIL PROCEDURE A. ACTIONS 1. MEANING OF ORDINARY CIVIL ACTIONS Q: What is an ordinary civil action? A: It is a formal demand of ones legal rights in a court of justice in the manner prescribed by the court or by law. It is governed by ordinary rules. 2. MEANING OF SPECIAL CIVIL ACTIONS A: Q: What is a special civil action? A: It has special features not found in ordinary civil actions. It is governed by ordinary rules but subject to specific rules prescribed Rules 62-71. 3. MEANING OF CRIMINAL ACTIONS Q: What is a criminal action? A: It is one by which the state prosecutes a person for an act or omission punishable by law (Sec.3 (b), Rule1). 4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS Q: Distinguish action from special proceeding. A:
Special Proceeding Purpose Civil action: To establish a status, a right 1. To protect a right or a particular fact (Sec. 3 2. Prevent or redress a Rule 1). Specific kinds of wrong. special proceedings are found in rule 72 rule 109 Criminal action: E.g. settlement of estate, Prosecute a person for escheat, guardianship, etc. an act or omission (Riano, Civil Procedure: A punishable by law (Sec. Restatement for the Bar, p. 3, Rule 1) 121, 2009 ed.) Application Where a party litigant Where his purpose is to seeks to recover seek the appointment of a property from another, guardian for an insane his remedy is to file an person, his remedy is a action. special proceeding to establish the fact or status of insanity calling for an appointment of guardianship. (Herrera, Vol. I, p. 370, 2007 ed.) Governing Law Ordinary rules Special rules supplemented supplemented by special by ordinary rules rules Action Personal Action Scope When it affects title to or Personal property is possession of a real sought to be recovered property, or an interest or where damages for therein (Sec. 1, rule 4) breach of contract are sought Basis When it is founded upon the Founded on privity of privity of a real estate. That contract such as means that realty or interest damages, claims of therein is the subject matter money, etc. of the action.
Note: It is important that the matter in litigation must also involve any of the following issue: 1. Title to 2. Ownership 3. Possession 4. Partition 5. Foreclosure of mortgage 6. Any interest in real property.

Court Heard by courts of limited jurisdiction Procedure Initiated by a pleading Initiated by a petition and and parties respond parties respond through an through an answer opposition Heard by courts of general jurisdiction

5. REAL ACTIONS AND PERSONAL ACTIONS Q: Distinguish real actions from personal actions.

Real Action

Venue Venue of action shall be Venue of action is the commenced and tried in the place where the proper court which has plaintiff or any of the jurisdiction over the area principal plaintiffs wherein the real property resides or any of the involved, or a portion defendants resides, at thereof is situated. (Rule 4, the election of the sec 1) plaintiff (Rule 2 sec 2) Example An action to recover Action for a sum of possession of real property money plus damages
Note: An action to annul or rescind a sale of real property has as its fundamental and prime objective the recovery of real property (Emergency Loan Pawnshop, Inc. vs. Court of appeals, 353 SCRA 89; Riano, p. 122, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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6. LOCAL AND TRANSITORY ACTIONS Q: Distinguish local action from transitory actions. A:
Transitory Action Venue Must be brought in a Dependent on the place particular plac where the where the party resides subject property is regardless of where the located, unless there is cause of action arose. an agreement to the Subject to Sec. 4, Rule 4 contrary. Local Action Privity of contract No privity of contract and Founded on privity of the action is founded on contract between the privity of estate only parties whether debt or covenant (Paper Industries Corporation of the Philippines v. Samson, G.R. No. L-30175, Nov. 28, 1975). Example Action to recover real Action to recover sum of property money

7. ACTIONS IN REM, IN PERSONAM AND QUASI IN REM Q: Distinguish actions in rem, in personam and quasi in rem A:
Action In Personam Action Quasi In Rem Nature A proceeding to subject the property A proceeding to enforce A proceeding to subject the property of of such persons to the discharge of personal rights and obligations the named defendant or his interests the claims assailed. brought against the person therein to the obligation or lien burdening the property. Purpose A proceeding to determine the state An action to impose a Deals with the stauts, ownership or or condition of a thing responsibility or liability upon liability of a particular property but a person directly which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut-off the rights or interests of all possible claimants. (Domagas vs. Jensen, 448 SCRA 663) Scope Directed against the thing itself Directed against particular Directed against particular persons Directed against the whole world persons Required jurisdiction Jurisdiction over the person of the Jurisdiction over the person of Jurisdiction over the person of the defendant is not required. the defendant is required defendant is not required as long as Jusrisdiction over the RES is required jurisdiction over the res is acquired through publication in a newspaper of general circulation. Effect of judgment Judgment is binding upon the whole Judgment is binding only upon Judgment will be binding only upon the world. parties impleaded or their litigants, privies, successor in interest successors-in-interest but the judgment shall be executed against a particular property. The RES involve will answer the judgment. Example 1. Probate proceeding 1. Action for specific 1. Action for partition 2. Cadastral proceeding performance 2. Action to foreclose real estate 3. Land registration proceeding 2. Action for breach of mortgage attachment contract 3. Action for ejectment 4. Action for a sum of money; for damages (Riano, Civil Procedure: A Restatement for the Bar,p.130, 2009 ed.) Action In Rem

20

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

CIVIL PROCEDURE
B. CAUSE OF ACTION 1. MEANING OF CAUSE OF ACTION Q: What is a cause of action? A: A: It is the act or omission by which a party violates a rights of another (Sec. 2, Rule 2). 2. CAUSE OF ACTION VERSUS RIGHT OF ACTION Q: Distinguish cause of action from right of action A:
Right of Action Remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him Requisites 1. The existence of a 1. There must be a good legal right of the cause (existence of a plaintiff cause of action) 2. A correlative duty of 2. A compliance with all the defendant to the conditions precedent respect ones right to the bringing of the 3. An act or omission of action the defendant in 3. The action must be violation of the instituted by the proper plaintiffs right. party. Nature It is actually predicated It is procedural in on substantive law or character is the on quasi delicts under consequence of the NCC. violation of the right of the plaintiff (Riano, Civil Procedure: A Restatement for the Bar , p. 4, 2009 ed.) Basis Based on the allegations Basis is the plaintiffs cause of the plaintiff in the of action complaint Effect of Affirmative defense Not affected by Affected by affirmative affirmative defenses defenses (fraud, prescription, estoppel, etc.) Note: The rule is There is no right of action where there is no cause of action. (Ibid p.4) Cause of Action It is the act or omission by which a party violates the rights of another ( Sec. 2, Rule 2) Failure to state cause of action Insufficiency in the allegations of the complaint Lack of cause of action

3. FAILURE TO STATE A CAUSE OF ACTION Q: Distinguish failure to state cause of action from absence or lack of cause of action

Failure to prove or establish by evidence ones stated cause of action As a ground for dismissal Raised in a motion to Raised in a demurrer to dismiss under Rule 16 evidence under Rule 33 before a responsive after the plaintiff has pleading is filed rested his case Determination Determined only from Resolved only on the basis the allegations of the of the evidence he has pleading and not from presented in support of his evidentiary matters claim

4. TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION Q: What is the test of sufficiency of the statement of a cause of action? A: 1. Whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint (Misamis Occidental II Coop., Inc. vs. David, 468 SCRA 63; Riano, p. 92, 2009 ed.) The sufficiency of the statement of cause of action must appear on the face of the complaint and its existence is only determined by the allegations of the complaint (Viewmaster Construction Corp. vs. Roxas, 335 SCRA 540; Riano, Civil Procedure: A Restatement for the Bar, p. 93, 2009 ed)

2.

Note: The truth or falsity of the allegations is beside the point because the allegations in the complaint are hypothetically admitted. Thus a motion to dismiss on the ground of failure to state a cause of action, hypothetically admits the matters alleged in the complaint (Riano, Civil Procedure: A Restatement for the Bar, p92, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS Q: What is splitting a cause of action? A: It is the act of instituting two or more suits on the basis of the same cause of action (Sec. 4, Rule 2). It is the act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. It is a ground for the dismissal of others. The rule against splitting of a cause of action aims to avoid multiplicity of suits, conflicting decisions and unnecessary vexation and harassment of defendants. It applies not only to complaints but also to counterclaims and crossclaims. (1999 Bar Question)
Note: An action for forcible entry should include not only the plea for restoration of possession but also claims for damages arising out of the forcible entry (Progressive Development Corporation, Inc. vs. CA, 301 SCRA 637; Riano, Civil Procedure: A Restatement for the Bar, p. 108, 2009 ed.) Note: When the causes of action accrue in favor of the same plaintiff and against the same defendant, it is not necessary to ask whether or not the causes of action arose out of the same transaction or series of transactions. Also a joinder of causes of action is only permissive not compulsory, hence a party may desire to file a single suit for each of his claims.

Q: Is misjoinder of causes of action a ground for dismissal? A: No. A misjoined cause of action may, on motion of a party or on initiative of the court, be severed and proceeded with separately (Sec. 6 Rule 2). Q: The complaint filed before the RTC states two causes of actions, one for rescission of contract and other for the recovery of 100, 000.00 both of which arose out of the same transaction. Is the joinder of the two causes of action proper? A: Yes. Both are ordinary civil actions and thus, neither requires special rules. Since the action for rescission falls under the jurisdiction of the RTC, the joinder may be made in said court provided the venue lies therein (Sec. 5, Rule 2; 1996 Bar Question; Riano, Civil Procedure: A Restatement for the Bar, p.120, 2009 ed.) C. PARTIES TO CIVIL ACTIONS 1. REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES; REPRESENTATIVES AS PARTIES; NECESSARY PARTIES; INDIGENT PARTIES; ALTERNATIVE DEFENDANTS Q: What are the kinds of parties in a civil action?

Q: What are the rules on splitting a single cause of action? A: 1. Prohibited by the Rules of Court. A party may not institute more than one suit for a single cause of action. (Sec.3, Rule 2) 2. The rule against splitting a single cause of action applies not only to complaints but also to counterclaims and cross-claims. (Mariscal vs. Court of Appeals, 311 SCRA 51) 6. JOINDER AND MISJOINDER OF CAUSES OF ACTION Q: What is a joinder of causes of action? A: It is the assertion of as many causes of action a party may have against another in one pleading alone (Sec. 5, Rule 2).
Note: Joinder of causes of action must be subject to the following conditions: 1. The party shall comply with the rules on joinder of parties; 2. The joinder shall not include special civil actions governed by special rules; 3. Where causes of action pertain to different venues, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of said court and venue lies therein 4. Where claims in all causes of action are for recovery of money, the aggregate amount claimed shall be the test for jurisdiction. (Sec 5, Rule 2)

A: 1. 2. 3. 4. 5. 6. Real parties in interest Indispensable parties Representatives as parties Necessary parties Indigent parties Pro-forma parties

Q: Who is a real party in interest? A: He is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit (Sec. 2 Rule 3). Q: Distinguish an indispensable party from a necessary party. A:
Indispensable Parties Parties in interest without whom no final determination can be Necessary Parties A necessary party is one who is not indispensable but who ought to be joined as a

22

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

CIVIL PROCEDURE
had of an action shall be joined either as plaintiffs or defendants. (Sec.7, Rule 3) Must be joined under any and all conditions because the court cannot proceed without him (Riano, Civil Procedure: A Restatement for the Bar, p. 224, 2009 ed.) No valid judgment if they are not joined
Note: In the absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present (Riano, Civil Procedure: A Restatement for the Bar, p. 221, 2009 ed.)

party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (Sec.8, Rule 3)
Note: Should be joined whenever possible, the action can proceed even in their absence because his interest is separable from that of indispensable party (Ibid p.224)

right to relief against one may be inconsistent with a right to relief against the other (Sec. 13, Rule 3). Q: May an action be prosecuted in the name of other party other than the real party in interest? A: No. Every action must be prosecuted and defended in the name of the real party-in-interest (Sec. 2, Rule 3). Even where the action is allowed to be prosecuted or defended by a representative party or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be a real party-in-interest (Sec.3 Rule 3; Riano, p. 219, 2009 ed.)
Note: An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.

The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined
Note: Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

Q: Who is an indigent party? A: He is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. (Sec. 21 Rule 3)
Note: Indigent litigants (a) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with a fair market value as stated in the current tax declaration of more than three hundred thousand (P300,000.00) pesos shall be exempt from payment of legal fees. (Sec. 19, Rule 141).

Q: What is the rule on indigent litigants? A: If the applicant for exemption meets the salary and property requirements under Sec. 19, Rule 141, then the grant of the application is mandatory. On the other hand, when the application does not satisfy one or both requirements, then the application should not be denied outright; instead, the court should apply the indigency test under Sec. 21, Rule 3 and use its sound discretion in determining the merits of the prayer for exemption (Algura v. LGU of Naga, G.R. No. 150135, Oct. 30, 2006).
Note: While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing, it may be contested by the adverse party at any time before judgment is rendered (Sec. 21, Rule 3).

The non-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action. The court should order the joinder of such party and non-compliance with the said order would be a ground for the dismissal of the action (Feria, Civil Procedure Annotated, Vol. I, p. 239, 2001 ed.)
Note: Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (Sec. 11, Rule 3)

Q: May a party sue the defendants in the alternative? A: Yes. Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them in the alternative, although a

Q: What does the authority include, if one is authorized as an indigent party? A: An exemption from the payment of: 1. Docket fees and other lawful fees

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2. Transcript of stenographic notes. (Sec. 21, Rule 3) and allows the amendment of the complaint at any stage of the proceedings, through motion or on order of the court on its own initiative (Sec. 11, Rule 3; Republic v. Sandiganbayan, G.R. No. 152154, July 15, 2003). However, when the order of the court to implead an indispendable party goes unheeded, the court may order the dismissal of the case. The court is fully clothed with the authority to dismiss a complaint due to the fault of the plaintiff as when, among others, he does not comply with the order of the court (Sec. 3, Rule 17; Plasabas vs. CA, GR No. 166519; Riano, Civil Procedure: A Restatement for the Bar p. 223, 2009 ed.) 4. CLASS SUIT Q: What is a class suit? A: It is an action where one or some of the parties may sue for the benefit of all if the requisites for said action are complied with. (Riano, Civil Procedure: A Restatement for the Bar, p. 236, 2009 ed.) Q: What are its requisites? A: 1. Subject matter of the controversy is one of common or general interest to many persons; Parties affected are so numerous that it is impracticable to bring them all before the court; Parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of all concerned (Sec. 12 Rule 3); and Representatives sue or defend for the benefit of all (Sec.12, Rule 3)

Note: The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless otherwise provided (Sec. 21, Rule 3). The basis for the exemption from legal and filing fees is the free access clause embodied in Sec. 11, Art. III, 1987 Constitution. (Re: Query of Mr. Roger C. Prioreschi re exemption from legal and filing fees of The Good Shepherd Foundation, Inc., A.M. No. 09-6-9SC, Aug. 19, 2009)

Q: Who is a pro forma party? A: One who is joined as a plaintiff or defendant, not because such party has any real interest in the subject matter or because any relief is demanded, but merely because the technical rules of pleadings require the presence of such party on the record. (Samaniego vs. Agulia, G.R. No. 125567, June 27, 2000) 2. COMPULSORY AND PERMISSIVE JOINDER OF PARTIES Q: When is there a compulsory joinder of parties? A: The joinder of parties becomes compulsory when the one involved is an indispensable party. Clearly, the rule directs a compulsory joinder of indispensable parties, (Riano, Civil Procedure: A Restatement for the Bar, p. 222, 2009 ed.) Q: What are the requisites of permissive joinder of parties? A: 1. Right to relief arises out of the same transaction or series of transactions (connected with the same subject matter of the suit); There is a question of law or fact common to all the plaintiffs or defendants; and Joinder is not otherwise provided by the provisions of the Rules on jurisdiction and venue (Sec. 6, Rule 3).

2.

3.

4.

5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY Q: What is the rule on suits against entities without juridical personality? A: When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed (Sec. 15, Rule 3).
Note: Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known, but they cannot sue under such name.

2. 3.

3. MISJOINDER AND NON-JOINDER OF PARTIES Q: Is the misjoinder or non-joinder of an indispensable party a ground for the dismissal of the action or annulment of judgment? A: No. The Rules prohibit the dismissal of a suit on the ground of non-joinder or misjoinder of parties

24

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

CIVIL PROCEDURE
Question)

6. EFFECT OF DEATH OF PARTY LITIGANT Q: What is the effect of the death of a party upon a pending action? A: 1. Purely personal the death of either of the parties extinguishes the claim and the action is dismissed. Not purely personal claim is not extinguished and the party should be substituted by his heirs, executor or administrator. In case of minor heirs, the court may appoint a guardian ad litem for them. Action for recovery of money arising from contract and the defendant dies before entry of final judgment it shall not be dismissed but instead shall be allowed to continue until entry of judgment. A favorable judgment obtained by the plaintiff shall be enforced in the manner provided in the rules for prosecuting claims against the estate of a deceased person. (Sec. 20, Rule 3, 1999 Bar Question)
Establishes a relation between plaintiff and defendant, or petitioner and respondent. GR: Not a ground for a motu proprio dismissal XPN: In cases subject to summary procedure. Establishes a relation between the court and the subject matter. It is a ground for a motu proprio dismissal. (Riano, Civil Procedure: A Restatement for the Bar, p. 210, 2009 ed.)

2.

Q: Can a complaint be dismissed by the court motu proprio based on improper venue? A: No. Improper venue is not one of the grounds wherein the court may dismiss an action motu proprio. (Universal Corp. vs. Lim, G.R. No. 154338, Oct. 5, 2007). Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot be truly said to be improperly laid, because the venue although technically wrong may be acceptable to the parties for whose convenience the rules on venue have been devised. (Dacuycuy vs. Intermediate Appellate Court, 195 SCRA 641) 2. VENUE OF REAL ACTIONS Q: What is the venue of real actions? A: The venue is local, hence the venue is the place where the real property involved or, any portion thereof, is situated (Sec. 1, Rule 4). 3. VENUE OF PERSONAL ACTIONS Q: What is the venue of personal actions? A: The venue is transitory, hence the venue is the residence of the plaintiff or defendant at the option of the plaintiff. (Sec. 3, Rule 4). 4. VENUE OF ACTIONS AGAINST NON-RESIDENTS Q: Where should the action be commenced and tried if the defendant is a non-resident? A: 1. Defendant does not reside and is found in the Philippines: a. Personal actions shall be commenced and tried in the court of the place where the plaintiff resides b. Real actions shall be commenced and tried in the court of the place where the property is located. Defendant does not reside and is not found in the Philippines:

3.

Note: The substitute defendant need not be summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party. (Riano, Civil Procedure: A Restatement for the Bar, p. 232, 2009 ed.) If there is notice of death, the court should await appointment of legal representative; otherwise, subsequent proceedings are void.

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


Venue The place, or geographical area where an action is to be filed and tried. May be waived by: 1. Failure to object through a motion to dismiss or through an affirmative defense. 2. Stipulation of the parties. Procedural May be changed by the written agreement of the parties Jurisdiction Power of the court to hear and decide a case

Cannot be waived

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

2.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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a. If the action affects the personal status of the plaintiff the action may be commenced and tried in the court of the place where the plaintiff resides. If it involves any property of the nonresident defendant the action may be commenced and tried where the property or any portion thereof is situated (Sec. 3, Rule 4). 2. 3. 4. 5. 6. Solely Exclusively in this court In no other court save Particularly Nowhere else but/except

b.

Q: When is stipulation on venue void? A: It is void and unenforceable when it is contrary to public policy (Sweet Lines v. Teves, G.R. No. 28324, Nov. 19, 1978)
Note: When the action is no longer based on the agreement but on the tortuous act of sending collection telegrams despite the fact that the obligation had already been paid, venue is no longer based on the written stipulation but at the election of the plaintiff as fixed by law. (Zoleta v. Ramillo, G.R. No. L-58080, Feb. 15, 1982)

5. WHEN THE RULES ON VENUE DO NOT APPLY Q: In what instances does the rule on venue of action inapplicable? A: 1. In cases where a specific rule or law provides otherwise (e.g. an action for damages arising from libel). Where the parties have validly agreed in writing before the filing of the action on the exclusive venue (Sec. 4, Rule 4).

2.

E. PLEADINGS Q: What are pleadings? A: Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Sec.1, Rule 6)
Note: Pleadings cannot be oral because they are clearly described as written statements. (Riano, Civil Procedure: A Restatement for the Bar, p. 51, 2009 ed.)

6. EFFECTS OF STIPULATIONS ON VENUE Q: What is rule on the stipulations on venue? A: The parties may agree on a specific venue which could be in a place where neither of them resides (Universal Robina Corp. vs. Lim, 535 SCRA 95). The parties may stipulate on the venue as long as the agreement is in writing, made before the filing of the action, and exclusive. (Sec.4[b], Rule 4) Q: What makes a stipulation on venue exclusive? A: Venue is exclusive when the stipulation clearly indicates, through qualifying and restrictive words that the parties deliberately exclude causes or actions from the operation of the ordinary permissive rules on venue and that they intended contractually to designate a specific venue to the exclusion of any other court also com petent and accessible to the parties under the ordinary rules on venue of actions (Philippine Banking Corp. v. Tensuan, G.R. No. 106920, Dec. 10, 1993)
Note: A stipulation that the parties agree to sue and be sued in the courts of Manila is not restrictive or exclusive to prevent the filing of the suit in the places provided for by the rules (Riano, Civil Procedure: A Restatement for the Bar, p. 205, 2009 ed.)

1. KINDS OF PLEADINGS Q: What are the kinds of pleadings? A: 1. 2. 3. 4. 5. 6. Complaint Counterclaim Cross-claim Third party claim Reply Answer a. COMPLAINT Q: What is a complaint? A: It is a concise statement of the ultimate facts constituting the plaintiffs cause or causes of action, with a specification of the relief sought, but it may add a general prayer for such further relief as may be deemed just or equitable.
Note: A pleading alleging the plaintiffs cause or causes of action. The names and residences of the plaintiff and defendant must be stated. (Sec. 3, Rule 6)

Q: What are examples of words with restrictive meanings? A: 1. Only

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

CIVIL PROCEDURE
b. ANSWER Q: What is an answer? A: It is the pleading where the defendant sets forth his affirmative or negative defenses (Sec. 4 Rule 6). It may likewise be the response to a counterclaim or a cross-claim.
Note: An answer Is a compulsory pleading. This pleading may be an answer to the complaint, an answer to counter claim or an answer to a cross-claim (Riano, Civil Procedure: A Restatement for the Bar, p. 323, 2009 ed.) A denial in a form of negative pregnant is an ambiguous pleading, since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied (Galofa v. Nee Bon Sing, G.R. No. L-22018, Jan. 17, 1968).

c. COUNTERCLAIMS Q: What is counterclaim? A: It is any claim which a defending party may have against an opposing party (Sec. 6, Rule 6). It partakes of a complaint by the defendant against the plaintiff (Pro-Line Sports Inc., v. CA, G.R. No. 118192, Oct. 23, 1997)
Note: The filing of counterclaim gives rise to complaints, namely, the one filed by plaintiff by way of original complaint and the one filed by defendant by way of a counterclaim (Riano, Civil Procedure: A Restatement for the Bar, p.330, 2009 ed.) A counterclaim may be asserted against an original counter-claimant and a cross-claim may also be filed against an original cross-claimant. (Sec.9, Rule 6)

(1) NEGATIVE DEFENSES (2) NEGATIVE PREGNANT (3) AFFIRMATIVE DEFENSES Q: What are the two kinds of defenses that may be set forth in the answer? A: 1. Affirmative defenses allegation of a new matter which while hypothetically admitting the material allegations in the pleading would nevertheless prevent or bar recovery by the claiming party. It is in the nature of confession and avoidance Negative defenses specific denial of the material facts or facts alleged in the pleading essential to establish the
plaintiffs cause of action (Sec. 5, Rule 6).

(1) COMPULSORY COUNTERCLAIM (2) PERMISSIVE COUNTERCLAIM Q: Distinguish the two kinds of counterclaim. A:
Compulsory Counterclaim One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim (Sec.7, Rule 6) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction Barred if not set up in the action (Sec. 2, Rule 9) Need not be answered; No default Not an initiatory pleading. Permissive Counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing partys claim

2.

Q: What are insufficient denials or denials amounting to an admission? A: 1. 2. General denial Denial in the form of a negative pregnant

Q: What is negative pregnant? A: A denial which does not qualify as a specific denial. It is conceded to be actually an admission (Riano, Civil Procedure: A Restatement for the Bar, p. 327, 2009 ed.). It is a form of denial which, at the same time, involves an affirmative implication favorable to the opposing party. It is in effect an admission of the averment to which it is directed. It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to. (Regalado, Remedial Law Compendium, Vol. I, p. 177, 2005 ed.)
Note: Where a fact is alleged with some qualification or modifying language and the denial is conjunctive, a negative pregnant exists, and only the qualification or modification is denied, while the fact itself is admitted.

It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction Not barred even if not set up in the action Must be answered,: Otherwise, default Initiatory pleading. (Riano, Civil Procedure: A Restatement for the Bar, p. 336, 2009 ed.) Must be accompanied by a certification against forum shopping and whenever required by law, also a certificate to

Need not be accompanied by a certification against forum shopping and certificate to file action

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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by the Lupong Tagapamayapa. file action by the Lupong Tagapamayapa (Santo Tomas University v. Surla, G.R. No. 129718, Aug. 17, 1998) (2007 Bar Question). Must be within the jurisdiction of the court where the case is pending and cognizable by regular courts of justice otherwise, defendant will have to file it in separate proceeding which requires payment of docket fee

the right of the defendant to prosecute his counterclaim in the same or separate action (Sec. 3, Rule 17; Riano, Civil Procedure: A Restatement for the Bar, p. 340, 2009 ed.) Q: Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City. Aside from alleging payment as a defense, Ramon in his answer set up counterclaims for P100,000 as damages and P30,000 as attorney's fees as a result of the baseless filing of the complaint, as well as for P250,000 as the balance of the purchase price of the 30 units of air conditioners he sold to Fe. Suppose that instead of alleging payment as a defense in his answer, Ramon filed a motion to dismiss on that ground, at the same time setting up his counterclaims, and the court grants his motion. What will happen to his counterclaims? A: Since Ramon filed only a motion to dismiss, not an answer, the dismissal of the complaint would also bring about the dismissal of his counterclaims but he can file a separate action for his permissive counterclaims. The compulsory counterclaims are deemed waived when he filed a motion to dismiss the complaint instead of answering the same (Financial Building Corp. v. Forbes Park Association, Inc., G.R. No. 133119, Aug. 17, 2000). (2008 Bar Question) d. CROSS-CLAIMS

The court has jurisdiction to entertain both as to the amount and nature (Sec. 7, Rule 6; Ibid p.331)

Note: A plaintiff who fails or who chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint (Gojo v. Goyala, G.R. No. 26768, Oct. 30, 1970). In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule 6).

(3) EFFECT ON THE COUNTERCLAIM WHEN THE COMPLAINT IS DISMISSED Q: What is the effect of the dismissal of a complaint on the counterclaim? A: 1. If no motion to dismiss has been filed, any of the grounds for dismissal under rule 16 may be pleaded as an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. 6, Rule 16). After hearing, when the complaint is dismissed, the counterclaim, compulsory or permissive is not dismissed. When the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim. If the court grants the motion, the dismissal shall be limited to the complaint. It shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion, manifests his preference to have his counterclaim resolved in the same action (Sec. 2, Rule 17). When the complaint is dismissed through the fault of the plaintiff and at a time when a counterclaim has already been set up, the dismissal is without prejudice to

Q: What are the requirements for a cross-claim? A: 1. 2. 3. A claim by one party against a co-party; It must arise out of the subject matter of the complaint or of the counterclaim; and The cross-claimant is prejudiced by the claim against him by the opposing party. (Sec. 8, Rule 6)

2.

Q: What is the effect if a cross-claim was not set up? A: GR: Barred if not set up. (Sec.2, Rule 9) XPN: If it is not asserted through oversight, inadvertence, or excusable negligence, it may still be set up with leave of court by amendment of the pleadings. (Sec.10, Rule 11)

3.

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

CIVIL PROCEDURE
e. THIRD (FOURTH, ETC.) PARTY COMPLAINTS Q: What is a third (fourth, etc.) party complaint? A: A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (Sec.11, Rule 6) Q: Distinguish a third-party complaint from the rules on bringing in new parties. A: A third-party complaint is proper when not one of the third-party defendants therein is a party to the main action. Whereas in bringing in new parties, if one or more of the defendants in a counterclaim or cross-claim is already a party to the action, then the other necessary parties may be brought in under the rules on bringing in new parties Q: Why is leave of court necessary in third (fourth, etc.) -party complaint? A: To obviate delay in the resolution of the complaint such as when the third-party defendant cannot be located; or unnecessary issues may be introduced; or the introduction of a new and separate controversy. (Herrera, Vol. I, p. 705, 2007 ed.) Q: What are the tests to determine whether the third-party complaint is in respect of plaintiffs claim? A: 1. Whether it arises out of the same transaction on which the plaintiffs claim is based, or, although arising out of another or different transaction, is connected with the plaintiffs claim; Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiffs claim against the original defendant; and Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiffs claim.
A third party complaint is not proper in an action for declaratory relief. (Commissioner of Customs v. Cloribel, G.R. No. L-21036, June 30, 1977). Note: The court is vested with the discretion to allow or disallow a party to an action to implead an additional party. Thus, a defendant has no vested right to file a third party complaint (China Banking Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007; Riano, p. 342, 2009 ed.). Surety & Insurance Co., G.R. No. L-27802, Oct. 26, 1968).

Q: Abby obtained a favorable judgment against UNICAP for a sum of money. For failure to get full payment, Abby went after UNICAPs debtor Ben. Ben is a policy holder of Insular. The courts sheriff then served a notice of garnishment to Insular over several account receivables due to Ben. Insular refused to comply with the order alleging adverse claims over the garnished amounts. The trial court ordered Insular to release to Abby the said account receivables of Ben under the policies. Insular then filed a petition for certiorari with the CA alleging that the trial judge gravely abused his discretion when he issued the garnishment order despite its adverse claim on the garnished amounts. The CA gave due course to the petition and annulled the order of the trial court. Is the Court of Appeals correct? A: No. Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a thirdparty claim. Since the third-party claimant is not one of the parties to the action, he could not, strictly speaking, appeal from the order denying its claim, but should file a separate reinvindicatory action against the execution creditor or a complaint for damages against the bond filed by the judgment creditor in favor of the sheriff. The rights of a thirdparty claimant should be decided in a separate action to be instituted by the third person (Solidum v. CA, G.R. No. 161647, June 22, 2006). f. COMPLAINT-IN-INTERVENTION Q: What is a complaint-in-intervention? A: An intervention pleading filed for the purpose of asserting a claim against either or all of the original parties. g. REPLY Q: Is the filing of a reply necessary? A: GR: No.

2.

3.

Note: Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint, regardless of the amount involved as a third-party complaint is merely auxiliary to and is a continuation of the main action (Republic v. Central

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Note: If a party does not file such reply. All the new matters that were alleged in the answer are deemed controverted (Sec. 10, Rule 6)

3. PARTS OF A PLEADING a. CAPTION Q: What should the caption contain? A: The caption sets forth the name of the court, the title of the action, and the docket number if assigned. (Sec. 1, Rule 7) Q: What should the title of the caption indicate? A: It should indicate the names of the parties. They shall all be named in the original complaint or petition but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. (Sec. 1, Rule 7) b. SIGNATURE AND ADDRESS Q: What is the rule regarding the signature and address? A: The complaint must be signed by the plaintiff or counsel representing him indicating his address. This address should not be a post office box. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action (Sec. 3, Rule 7) c. VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING Q: How are pleadings verified? A: It is verified by an affidavit. This affidavit declares that the: 1. Affiant has read the pleading; and 2. Allegations therein are true and correct of his personal knowledge or based on authentic records (Sec. 4, Rule 7) Q: Is verification necessary in pleadings? A: No, except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. (Sec. 4, Rule 7)

XPNs: 1. Where the answer alleges the defense of usury in which case a reply under oath should be made. Otherwise, the allegation of usurious interest shall be deemed admitted. 2. Where the defense in the answer is based on an actionable document, a reply under oath pursuant to Sec. 8 of Rule 8 must be made. Otherwise, the genuineness and due execution of the document shall be deemed admitted. 2. PLEADINGS ALLOWED IN SMALL CLAIM CASES AND CASES COVERED BY THE RULES ON SUMMARY PROCEDURE Q: What are the pleadings allowed in a summary procedure? A: 1. 2. 3. 4. Complaint Compulsory counterclaim Cross-claims pleaded in the answer Answer to these pleadings (Sec. 3, Rules on Summary Procedure; Riano, p. 177, 2009 ed.)

Q: What are the prohibited pleadings, motions and petitions in small claims? A: 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction. 2. Motion for a bill of particulars. 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial. 4. Petition for relief from judgment. 5. Motion for extension of time to file pleadings, affidavits, or any other paper. 6. Memoranda. 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court. 8. Motion to declare the defendant in default. 9. Dilatory motions for postponement. 10. Reply. 11. Third-party complaints. 12. Interventions. (Sec.14 of A.M. No. 08-8-7SC)

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

CIVIL PROCEDURE
Q: What is the significance of verification? A: it is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The absence of a proper verification is cause to treat the pleading as unsigned and dismissible (Chua vs. Torres, 468 SCRA 358; Riano, Civil Procedure: A Restatement for the Bar, p. 60, 2009 ed.) 3. Q: What are the pleadings that should be verified? A: The following should be verified: 1. Petition for relief from judgment 2. Petition for review from the RTCs to the CA 3. Petition for review from the CTA and quasi-judicial agencies to the CA 4. Appeal by certiorari from the CA to the SC 5. Petition for annulment of judgments or final orders and resolutions 6. Complaint for injunction 7. Application for appointment of receiver 8. Application for support pendente lite 9. Petition for certiorari against the judgments, final orders or resolutions of constitutional commissions 10. Petition for certiorari, prohibition, mandamus, quo warranto 11. Complaint for expropriation 12. Complaint for forcible entry or unlawful detainer 13. Petition for indirect contempt 14. Petition for appointment of general guardian 15. Petition for leave to sell or encumber property of an estate by a guardian 16. Petition for the declaration of competency of a ward 17. Petition for habeas corpus 18. Petition for change of name 19. Petition for voluntary judicial dissolution of a corporation; 20. Petition for correction or cancellation of entries in Civil Registry. (1996 Bar Question) Q: What are the effects of lack of verification? A: 1. A pleading required to be verified but lacks the proper verification shall be treated as an unsigned pleading (Sec. 4 as amended by A.M. 00-2-10, May 1, 2000). Hence, it produces no legal effect (Sec. 3, Rule 7) 2. It does not necessarily render the pleading defective. It is only a formal and not a jurisdictional requirement. The requirement is a condition affecting only the form of the pleading (Benguet Corp. v. Cordillera Caraballo Mission, Inc., G.R. No. 155343, Sept. 2, 2005) and noncompliance therewith does not necessarily render it fatally defective (Sarmiento v. Zaranta, G.R. No. 167471, Feb. 5, 2007) The absence of verification may be corrected by requiring an oath. The rule is in keeping with the principle that rules of procedure are established to secure substantial justice and that technical requirements may be dispensed with in meritorious cases (Pampanga Sugar Development Co., Inc. v. NLRC, G.R. No. 112650, May 29, 1997)

Q: What is the nature of the certification against non-forum shopping? A: It is a mandatory requirement in filing a complaint and other initiatory pleadings asserting a claim or relief (Sec. 5, Rule 7). This rules applies as well to special civil actions since a since rules for ordinary civil action are suppletory (Riano, Civil Procedure: A Restatement for the Bar, p. 63, 2009 ed.). Q: Who executes certification against forumshopping? A: It is the plaintiff or principal party who executes the certification under oath (Sec. 5, Rule 7). It must be signed by the party himself and cannot be signed by his counsels. (Digital Microwave Corp. v. CA, G.R. No. 128550, Mar. 16, 2000). It is the plaintiff who is in the best position to know whether he or it actually filed or caused the filing of a petition. (Far Eastern Shipping Co. v. CA, G.R. No. 130068, Oct. 1, 1998) Q: What are the undertakings of a party under the certification against forum shopping? A: 1. That the party has not commenced or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending That if there is such other pending action or claim, a complete statement of the present status thereof

2.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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3. That if he should therefore learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed (Sec. 5, Rule 7) filing of the certification 14 days before the dismissal of the petition. In Uy v. LandBank, supra, the Court had dismissed Uys petition for lack of verification and certification against nonforum shopping. However, it subsequently reinstated the petition after Uy submitted a motion to admit certification and nonforum shopping certification. In all these cases, there were special circumstances or compelling reasons that justified the relaxation of the rule requiring verification and certification on nonforum shopping. Q: Is substantial compliance allowed by the courts? A: GR: No. The rule is that the certificate of nonforum shopping must be signed by all the petitioners or plaintiffs in a case and the signing by only one of them is insufficient. XPN: However, the Court has also stressed that the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective. The rule of substantial compliance may be availed of with respect to the contents of the certification. This is because the requirement of strict compliance with the provisions regarding the certification of nonforum shopping merely underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded. It does not thereby interdict substantial compliance with its provisions under justifiable circumstances. (Cavile v. Heirs of Clarita Cavile, 448 Phil 302, 2003) Q: When should the rule on forum shopping be invoked? A: GR: It should be raised at the earliest opportunity in a motion to dismiss or a similar pleading.
Note: Invoking it in the later stages of the proceedings or on appeal may result in the dismissal of the action which invokes forum shopping.

Q: What is the effect of non-compliance with the rule on certification against forum shopping? A: It is not curable by mere amendment and shall be a cause for the dismissal of action (Sec.5, Rule 7).
Note: When the case is dismissed due to noncompliance with the certification, filing fees cannot be recovered.

Q: What is the effect of non-compliance with the undertakings? A: It has the same effect as the submission of false certification. Hence, such failure shall constitute indirect contempt of court without prejudice to the corresponding administrative and criminal sanctions. (Sec. 5 Rule 7). Q: What is the effect of submission of a false certification? A: It shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions (Sec. 5, Rule 7) Q: What is the effect of willful and deliberate forum shopping of the party or his counsel? A: It shall be a ground for summary dismissal. This dismissal is with prejudice and shall constitute direct contempt as well as cause for administrative sanctions (Sec. 5, Rule 7). Q: Is belated filing allowed by the courts? A: GR: No. The lack of certification against forum shopping is generally not curable by the submission thereof after the filing of the petition. XPN: In certain exceptional circumstances, however, the Court has allowed the belated filing of the certification. In Loyola v. Court of Appeals, et al. (245 SCRA 477 [1995]), the Court considered the filing of the certification one day after the filing of an election protest as substantial compliance with the requirement. In Roadway Express, Inc. v. Court of Appeals, et al. (264 SCRA 696 [1996]), the Court allowed the

XPNs: It may be invoked in the later stages only if the violation arises from or will result in: 1. The loss of jurisdiction over the subject matter

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

CIVIL PROCEDURE
2. 3. 4. The pendency of another action between the same parties for the same cause Barring of the action by a prior judgment The Statute of Limitations has been crossed (Young v. Keng Seng, G.R. No.143464, Mar. 5, 2003).

Q: Mayor Miguel, Mayor of City Koronadal, filed an action against RD Corporation for the annulment of the deed of absolute sale over several real properties of City of Koronadal alleging irregularities thereto with the RTC. The said deed of absolute sale was authorized by Mayor Miguels predecessor, Mayor de Jesus. The RTC dismissed the petition because the certification against forum shopping was signed by the City Legal Officer of City of Koronadal and not by Mayor Miguel. Is the RTC correct? A: Yes. It is the mayor, not the City Legal Officer, who has the authority to file suits for the recovery of funds and property on behalf of the city even without the prior authorization from the Sanggunian. Here, Mayor Miguel had the authority to institute the action against RD Corporation. However, being the proper party to file such suits, Mayor Miguel must necessarily be the one to sign the certification against forum-shopping, and not the City Legal Officer, who, despite being an official of the City, was merely its counsel and not a party to the case (City of Caloocan v. CA, G.R. No. 145004, May 3, 2006). (1) REQUIREMENTS OF A CORPORATION EXECUTING THE VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING Q: What is the rule when the plaintiff is a juridical person? A: The certification against forum shopping where the plaintiff is a juridical entity like a corporation, may be executed by properly authorized person. This person may be a lawyer of a corporation. As long as he is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification, such may be signed by the authorized lawyer (National Steel Corporation vs. CA, 388 SCRA 85; Riano, Civil Procedure: A Restatement for the Bar, p. 70, 2009 ed.) Q: Corporation XYZ is the petitioner in a civil case. Alexander, president of corporation XYZ, signed the certification against forum shopping in behalf of said corporation without presenting any proof of authority from the corporation. Is the certification against forum shopping valid? If not, how may it be cured?

A: No. When the petitioner in a case is a corporation, the certification against forum shopping should be signed by its duly authorized director or representative. The authorized director or representative of the corporation should be vested with authority by a valid board resolution. A proof of said authority must be attached with the certification (PAL v. FASAP, G.R. No. 143088, Jan. 24, 2006). d. EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING Q: What is the effect of lawyers signature? A: The signature of counsel constitutes: 1. A certificate by him that he has read the pleadings; 2. That to the best of his knowledge, information and belief there is good ground to support it; and 3. That it is not interposed for delay. (Sec. 3, Rule 7) 4. ALLEGATIONS IN A PLEADING a. MANNER OF MAKING ALLEGATIONS Q: What is the rule when making a pleading? A: Every pleading shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts, omitting the statement of mere evidentiary facts. (Sec. 1, Rule 6) Q: What are Ultimate facts? A: They refer to the essential facts of the claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. (Ceroferr Realty Corporation vs. Court of Appeals, 376 SCRA 144) (1) CONDITION PRECEDENT Q: What is condition precedent? A: It refers to matters which must be complied with before a cause of action arises. (Riano, Civil Procedure: A Restatement for the Bar, p. 97, 2009 ed.) Q: What is the rule on conditions precedent? A: When a claim is subject to a condition precedent, the compliance of the same must be alleged in the pleading. Otherwise it will be a ground for dismissal

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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for failure to state a cause of action. Such as tender of payment before consignation, prior resort to barangay conciliation when necessary, and etc (Riano, Civil Procedure: A Restatement for the Bar, p. 97, 2009 ed.). (2) FRAUD, MISTAKE, MALICE, INTENT, KNOWLEDGE AND OTHER CONDITION OF THE MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR ACTS Q: What is the rule in making averments of fraud or mistake? A: The circumstances constituting such fraud or mistake must be stated with particularity (Sec. 5, Rule 8). The complaint must state with particularity the fraudulent acts of the adverse party. These particulars would necessarily include the time, place, and specific acts of fraud committed against him (Riano, Civil Procedure: A Restatement for the Bar, p. 98, 2009 ed.). Q: What is the rule in making averments of malice, intent, knowledge or other conditions of the mind of a person? A: The circumstances constituting such may be averred generally (Sec.5, Rule 8). Q: What is the rule in pleading an official document or act? A: It is sufficient to aver that the document was issued in compliance with law. With respect to an act, it is likewise sufficient to allege that the act was done also in compliance with law (Sec.9, Rule 8; Riano, Civil Procedure: A Restatement for the Bar, p. 98, 2009 ed.). b. PLEADING AN ACTIONABLE DOCUMENT Q: What is an actionable document? A: Referred to as the document relied upon by either the plaintiff and the defendant. (Araneta, Inc. vs. Lyric Factor Exchange, Inc. 58 Phil 736) E.g. A promissory note in an action for collection of a sum of money. (Riano, Civil Procedure: A Restatement for the Bar, p. 101, 2009 ed.)
Note: This manner of pleading a document applies only to an actionable document, i.e., one which is the basis of an action or a defense. Hence, if a document does not have the character of an actionable document, it need not be pleaded strictly in the manner prescribed by the rules (Ibid p.102)

Q: How are actionable documents pleaded? A: By setting forth: 1. The substance of such document in the pleading and attaching said document thereto as an exhibit 2. Said document verbatim in the pleading (Sec. 7, Rule 8).
Note: A variance in the substance of the document set forth in the pleading and the document annexed thereto does not warrant the dismissal of the action (Convets, Inc. v. National Development Co., G.R. No. L10232, Feb. 28, 1958). However, the contents of the document annexed are controlling.

c. SPECIFIC DENIALS Q: What are the kinds of specific denial? A: 1. Absolute denial defendant specifies each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Partial denial defendant denies only a part of an averment. In this kind he shall specify so much of it as is true and material and shall deny only the remainder. Disavowal of knowledge defendant alleges that he is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint.

2.

3.

(1) EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS Q: What is the effect of failure to make specific denial? A: Material averments except as to the amount of unliquidated damages, not specifically denied are deemed admitted. If the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions appear in the answer of the defendant, the plaintiff may file a motion for judgment on the pleadings under Rule 34 (Riano, Civil Procedure: A Restatement for the Bar, p. 324, 2009 ed.)

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

CIVIL PROCEDURE
(2) WHEN A SPECIFIC DENIAL REQUIRES AN OATH Q: When is a specific denial must be coupled with an oath? A: 1. A denial of an actionable document (Sec. 8, Rule 8) 2. A denial of allegations of usury in a complaint to recover usurious interest (Sec. 11, Rule 8) 5. EFFECT OF FAILURE TO PLEAD a. FAILURE TO PLEAD DEFENSES AND OBJECTIONS Q: May defenses not pleaded in a motion to dismiss or in the answer still be raised? A: GR: No, they are deemed waived. XPNs: These defenses may be raised at any stage of the proceedings even for the first time on appeal (Tijam v. Sibonghanoy, G.R. No. L21450, Apr. 15, 1968): 1. Lack of jurisdiction over the subject matter;
Note: It may however, be barred by laches.

6. DEFAULT a. DECLARATION OF DEFAULT Q: When is a declaration of default proper? A: If the defending party fails to answer within the time allowed therefor, the court shall upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default (Sec. 3, Rule 9, Rules of Court). (Riano, p. 507, 2005 ed.) Q: In what situations where declaration of default is proper? A: It is proper in 3 situations: 1. Defendant did not file any answer or responsive pleading despite valid service of summons; 2. Defendant filed an answer or responsive pleading but beyond the reglementary period; and 3. Defendant filed an answer to the court but failed to serve the plaintiff a copy as required by the Rules. b. EFFECT OF AN ORDER OF DEFAULT Q: What are the effects of an order of default?

2. 3. 4.

Litis pendentia; Res judicata; and Statute of limitations (Sec. 1, Rule 9)

A: 1. The party declared in default loses his standing in court. The loss of such standing prevents him from taking part in the trial [Sec. 3(a), Rule 9]; While the defendant can no longer take part in the trial, he is nevertheless entitled to notices of subsequent proceedings [Sec. 3 (a), Rule 9]. It is submitted that he may participate in the trial, not as a party but as a witness; and A declaration of default is not an admission of the truth or the validity of the plaintiffs claims (Monarch Insurance v. CA, G.R. No. 92735, June 8, 2000).

b. FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND CROSS-CLAIM 2. Q: May a compulsory counterclaim or cross-claim not set up in the answer still be raised subsequently? A: GR: A compulsory counterclaim or cross-claim not set up in the answer is deemed barred (Sec. 2, Rule 9). XPN: If the compulsory counterclaim or crossclaim is an after-acquired counterclaim, that is, such claim matured after filing of the answer, it may be pleaded by filing an amended answer or a supplemental answer or pleading (Sec. 9, Rule 11).
Note: Counterclaims or cross-claims omitted through oversight, inadvertence, or excusable neglect or when justice requires may be set up by amendment before judgment. Leave of court is necessary (Sec. 10, Rule 11).

3.

c. RELIEF FROM AN ORDER OF DEFAULT Q: What are the reliefs from an order of default? A: 1. After notice of order and before judgment The defendant must file a verified motion to set aside the order of default upon proper showing that:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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a. His failure to answer was due to fraud, accident, mistake or excusable negligence; and That he has a meritorious defense. [Sec. 3(b), Rule 9] (2000 & 1999 Bar Question) f. ACTIONS WHERE DEFAULT ARE NOT ALLOWED Q: When is default not allowed? A: 1. 2. 3. Actions for annulment; Declaration of nullity of marriage and legal separation [Sec. 3(e), Rule 9]; and In special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed.

b.

2.

After judgment and before judgment becomes final and executory He may file a motion for new trial under Rule 37. He may also appeal from the judgment as being contrary to the evidence or the law (Talsan Enterprises, Inc. v. Baliwag Transit, Inc., G.R. No. 169919, Sept. 11, 2009) After the judgment becomes final and executory he may file a petition for relief from judgment under Rule 38 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992) (2006, 1998 Bar Question) Where the defendant has however, been wrongly or improvidently declared in default, the court can be considered to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction and when the lack of jurisdiction is patent in the face of the judgment or from the judicial records, he may avail of the special civil action of certiorari under Rule 65 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992) d. EFFECT OF A PARTIAL DEFAULT

7. FILING AND SERVICE OF PLEADINGS Q: What papers are required to be filed and served? A: Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. (Sec.4, Rule 13) a. PAYMENT OF DOCKET FEES Q: What is the significance of paying the docket fees? A: A complaint is not considered filed unless the proper amount of the docket fee is paid. Thus, if the proper docket fee is not paid, the period of prescription continues to run. b. FILING VERSUS SERVICE OF PLEADINGS Q: What is filing?

3.

4.

Q: What is the effect of partial default? A: GR: The court will try the case against all defendants upon the answer of some. XPN: Where the defense is personal to the one who answered, in which case, it will not benefit those who did not answer e.g. forgery. (1995 Bar Question) e. EXTENT OF RELIEF Q: What is the extent of relief? A: The judgment shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages [Sec. 3(d), Rule 9]. However, if the court orders submission of evidence, unliquidated damages may be awarded based on such. A: It is the act of presenting the pleading or other paper to the clerk of court. (Sec. 2, Rule 13) Q: What is service? A: It is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. (Sec. 2, Rule 13) c. PERIODS OF FILING OF PLEADINGS Q. When should a responsive pleading be filed? A:
Periods for Filing an Answer Within 15 days after service of summons,

Answer to an original complaint

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

CIVIL PROCEDURE
unless a different period is fixed by the court (Sec. 1, Rule 11). Within 15 days after service of summons (Sec.6, in relation to Sec.5[a], Rule 2, A.M. NO. 00-8-10-SC 2000-11-21) Within 15 days after service of summons to said agent or officer (Sec.6, in relation to Sec.5[b], Rule 2, A.M. NO. 00-8-10-SC 2000-11-21) Within 30 days after receipt of summons by the home office of the foreign private entity

d. MANNER OF FILING Q: What are the modes of filing? A: 1. By presenting the original copies thereof, plainly indicated as such, personally to the clerk of court; or By sending them through registered mail (Sec. 3, Rule 13)

Defendant is a foreign private juridical entity and has a resident agent Defendant is a foreign private juridical entity and has no resident agent but has an agent / officer in the Philippines Defendant is a foreign private juridical entity and has no resident agent nor agent/ officer. (Summons to be served to SEC which will then send a copy by registered mail within 10 days to the home office of the foreign private corporation) Service of summons by publication

2.

Note: Filing by mail should be through the registry service which is made by deposit of the pleading in the post office, and not through other means of transmission.

e. MODES OF SERVICE Q: What are the modes of service?

A: 1. 2.
Within the time specified in the order which shall not be less than 60 days after notice (Sec. 15, Rule 14) Not be less than 60 days after notice (Sec. 15, Rule 14) Within 15 days from service of amended complaint (Sec. 3. Rule 11) Within 10 days counted from notice of the court order admitting the same (Sec. 3, Rule 11) Within 10 days from service (Sec. 4, Rule 11) Like an original defendant 15, 30, 60 days as the case may be (Sec. 5; Regalado, Vol. I, p. 212, 2005 ed.) Within 10 days from notice of order admitting the same unless a different period is fixed by the court (Sec. 7, Rule 11)

3.

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

Non-resident defendant to whom extraterritorial service of summons is made Answer to amended complaint (Matter of right)* Answer to amended complaint (Not a matter of right)* Counterclaim or crossclaim Third (fourth, etc.) party complaint

Q: How is personal service done? A: By: 1. 2.

3.

Delivering personally a copy to the party or his counsel; Leaving a copy in counsels office with his clerk or with a person having charge thereof; or Leaving the copy between 8 a.m. and 6 p.m. at the partys or counsels residence, if known, with a person of sufficient age and discretion residing therein if no person found in his office, or if his office is unknown, or if he has no office (Sec. 6, Rule 13). (2) SERVICE BY MAIL

Supplemental complaint

Q: How is service by mail done? A: 1. By depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered; or

Note: Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. (Sec.11, Rule 11)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail (Sec. 7, Rule 13). (3) SUBSTITUTED SERVICE Q: How and when is substituted service made? 4. A: If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail (Sec. 8, Rule 13). (4) SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS Q: How is service of judgment of final orders or resolutions done? A: By: 1. 2. 3. 2. Service by ordinary mail upon expiration of 10 days after mailing, unless the court otherwise provides. Service by registered mail upon actual receipt by the addressee, or 5 days from the date he received the first notice of the postmaster, whichever date is earlier (Sec. 10, Rule 13). Substituted service at the time of such delivery (Sec. 8, Rule 13). (7) PROOF OF FILING AND SERVICE Q: What are the proofs of filing? A: GR: Filing is proven by its existence in the record of the case. XPN: If it is not in the record, and: 1. If filed personally proved by the written or stamped acknowledgement of its filing by the clerk of court on a copy of the same; or 2. If filed by registered mail proved by the registry receipt and the affidavit of the person who did the mailing with a full statement of: a. The date and place of depositing the mail in the post office in a sealed envelope addressed to the court; b. With postage fully paid; and c. With instructions to the postmaster to return the mail to the sender after 10 days if undelivered. (Sec. 12, Rule 13) Q: What are the proofs of service? A: GR: Whenever practicable, the service and filing shall be done personally. XPN: With respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally (Sec. 11, Rule 13) 2.
Note: A violation of this rule may be cause to consider the paper as not filed (Sec. 11, Rule 13).

3.

Personal service; Registered mail; or Publication, if party is summoned by publication and has failed to appear in the action (Sec. 9, Rule 13)

Note: No substituted service.

(5) PRIORITIES IN MODES OF SERVICE AND FILING Q: What are the priorities in modes of service and filing?

A: 1. Proof of personal service: a. Written Admission of the party served; or b. Official return of the server or c. Affidavit of the party serving, containing the date, place and manner of service. Proof of service by ordinary mail: a. Affidavit of mailer showing compliance of Sec. 7, Rule 13; and b. Registry receipt issued by the mailing officer (Sec. 13, Rule 13) Registered mail: a. Affidavit; and b. Registry receipt issued by the mailing office.

(6) WHEN SERVICE IS DEEMED COMPLETE Q: When is service deemed complete? A: 1. Personal service upon actual delivery. 3.

Note: The registry return card shall be filed immediately upon its receipt by the sender, or in lieu

38

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

CIVIL PROCEDURE
thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (Sec. 13, Rule 13) Note: Plaintiff may amend his complaint even if the same was dismissed on motion of the defendant provided that the dismissal order is not yet final. (Arranz vs. Manila Surety and Fidelity Co., Inc., L128441, June 30, 1960)

Q: What is a notice of lis pendens? A: In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action.
Note: Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. (Sec.14, Rule 13)

c. FORMAL AMENDMENT Q: What is the rule on formal amendments? A: A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party (Sec. 4, Rule 10). d. AMENDMENTS TO CONFORM TO OR AUTHORIZE PRESENTATION OF EVIDENCE Q: When may amendment be made to conform to or authorize presentation of evidence? A:

8. AMENDMENT Q: How are pleadings amended? A: By: 1. 2.

Adding or striking out an allegation or the name of any party; or Correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect (Sec. 1, Rule 10)

1.

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

2.

a. AMENDMENT AS A MATTER OF RIGHT Q: When is amendment considered as a matter of right? A: It is considered as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served (Sec. 2, Rule 10).
Note: A motion to dismiss is not a responsive pleading and its filing does not preclude the exercise of the plaintiffs right to amend his complaint. (Riano, p. 246, 2009 ed.

Amendment may also be made to authorize presentation of evidence if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby (Sec. 5, Rule 10).

e. DIFFERENT FROM SUPPLEMENTAL PLEADINGS Q: Distinguish an amended pleading from a supplemental pleading. A:
Amended Pleading Refer to the facts existing at the time of filing of original pleading Supersedes the original May be amended without leave of court before a responsive pleading is filed. Amendment must be appropriately marked. Supplemental Pleading Refers to facts occurring after the filing of the original pleading. Merely supplements the original pleading. Always with leave of court

b. AMENDMENTS BY LEAVE OF COURT Q: When is leave of court required? A: 1. 2. If the amendment is substantial (Sec. 3, Rule 10); and A responsive pleading had already been served (Siasoco v. CA, G.R. No. 132753. Feb. 15, 1999) (1994 Bar Question)

There is no such requirement in supplemental pleadings (Herrera, Vol. I, p. 854,

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2007 ed.) Note: Voluntary appearance cures the defect in the service of summons.

f. EFFECT OF AMENDED PLEADING Q: What is the effect of an amended pleading? A: An amended pleading supersedes the pleading it amends. However, admissions in the superseded pleading can still be received in evidence against the pleader. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived (Sec. 8, Rule 10). F. SUMMONS 1. NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM AND QUASI IN REM Q: What is the nature of summons? A: It is the writ by which the defendant is notified of the action brought against him (Gomez vs. Court of Appeals, G.R. No. 127692, March 10, 2004). An important part of that notice is a direction to the defendant that he must answer the complaint within a specified period, and that unless he so answers, plaintiff will take judgment by default and may be granted the relief applied for (Sec. 2, Rule 14). (Riano, p. 411 , 2005 ed.) Q: What are the purposes of summons? A: 1. Actions in personam a. To acquire jurisdiction over the person of the defendant; and b. To give notice to the defendant that an action has been commenced against him (Umandap v. Sabio, Jr., G.R. No. 140244, Aug. 29, 2000) Actions in rem and quasi in rem not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process (Gomez v. CA, G.R. No. 127692, Mar. 10, 2004). 2. VOLUNTARY APPEARANCE Q: What is the effect of voluntary appearance before the court? Explain. A: GR: The defendants voluntary appearance shall be equivalent to service of summons and the consequent submission of ones person to the jurisdiction of the court (Sec. 20, Rule 14).

XPN: Special appearance in court to challenge its jurisdiction over the person of the defendant and the inclusion in a motion to dismiss of other grounds shall not be deemed a voluntary appearance (Sec. 20, Rule 15; La Naval Drug Corp. v. CA, G.R. No. 103200, Aug. 31, 1994). 3. PERSONAL SERVICE Q: When is personal service of summons proper? A: Only if the suit is one strictly in personam. The service of summons must be made by service in person on the defendant. This is effected by handing a copy of the summons to the defendant in person, or if he refuses to receive it, by tendering the copy of the summons to him (Sec. 6, Rule 14). (Riano, p. 423 , 2005 ed.) 4. SUBSTITUTED SERVICE Q: When is substituted service of summons proper? A: In our jurisdiction, for substituted service of summons to be valid, it is necessary to establish the following: 1. The impossibility of service of summons in person within a reasonable time; 2. The efforts exerted to locate the person to be served; and 3. Service upon a person of sufficient age and discretion in the same place as the defendant or some competent person in charge of his office or regular place of business (Sabio, Jr., 339 SCRA 243 [2000]; Hamilton vs. Levy, G.R. No. 139283, November 15, 2000). (Riano, p. 427 , 2005 ed.) 5. CONSTRUCTIVE SERVICE (BY PUBLICATION) Q: Is leave of court required in constructive service of summons? A: This service always requires permission of the court.

2.

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

CIVIL PROCEDURE
a. SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN b. SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE PHILIPPINES Q: When is constructive service of summons proper? A: 1. Service upon a defendant where his identity is unknown or where his whereabouts are unknown. When the defendant is designated as an unknown and cannot be ascertained by diligent inquiry, Sec. 14, Rule 14 allows service of summons by publication in a newspaper of general circulation and in such places and for such time as the court may order. (Riano, p. 432 , 2005 ed.) Service upon residents temporarily outside the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines (Sec. 16, Rule 14).
by any other manner the court may deem sufficient. (Riano, p. 439-440, 2005 ed.)

7. SERVICE UPON PRISONERS AND MINORS Q: How is service of summons upon prisoner made? A: Service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (Sec. 9, Rule 14) Q: How is service of summons upon minors made? A: Service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. (Sec. 10, Rule 14) 8. PROOF OF SERVICE Q: How is proof of service done? A: It shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the same; and shall be sworn to when made by a person other than a sheriff or his deputy (Sec 18, Rule 14). Q: How is proof of service by publication done?

2.

6. EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED Q: When is extra-territorial service of summons allowed? A: The defendant must be a non-resident defendant who is at the same time not found in the Philippines at the time summons is to be served. In addition, the action commenced against him must be any of the following: 1. 2. An action that affects the personal status of the plaintiff; An action that relates to, or the subject of which is the property within the Philippines in which the defendant has or claims a lien or interest, actual or contingent; An action in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein; An action where the property of the defendant has been attached in the Philippines.
Note: In any of the above instances, extraterritorial service is permissible with leave of court and may be effected by personal service, summons by publication or

A: It is done through the following: 1. Affidavit of the printer, his foreman or principal clerk, business or advertising manager, to which affidavit a copy of the publication shall be attached; and 2. Affidavit showing the deposit of a copy of the summons and order for publication in the post office (Sec. 19, Rule 14). G. MOTIONS 1. MOTIONS IN GENERAL a. DEFINITION OF A MOTION Q: What is a motion? A: It is an application for relief other than by a pleading. (Sec. 1, Rule 15)

3.

4.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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b. MOTIONS VERSUS PLEADINGS Q: What is the rule on hearing of motions? Q: Distinguish a motion from a pleading. A: A: A pleading is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6). It may be in the form of a complaint, counterclaim, cross-claim, third-party complaint, or complaint-in-intervention, answer or reply (Sec. 2, Rule 6). A motion on the other hand is an application for relief other than a pleading(Sec. 1, Rule 15). c. CONTENTS AND FORMS OF MOTIONS Q: Should a motion be in writing? A: GR: Yes. XPN: Those made in open court or in the course of hearing or trial (Sec. 2, Rule 15). Q: What are the contents of a motion? A: The contents of a motion are: 1. the relief sought to be obtained; 2. the ground upon which it is based; and 3. if required by the Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (Sec. 3, Rule 15) Q: May a motion pray for judgment? A: GR: No. XPN: Motion for: 1. judgment on the pleadings; 2. summary judgment; or 3. Judgment on demurrer to evidence. d. NOTICE OF HEARING AND HEARING OF MOTIONS Q: What shall the notice of hearing specify? A: It shall specify the time and date of the hearing which shall not be later than ten (10) days after the filing of the motion and it shall be addressed to the parties concerned (Sec. 5, Rule 15).
Note: Failure to comply with the mandatory requirements of the rule regarding notice of hearing is pro forma and presents no question which merits the attention of the court (Bacelonia v. CA, G.R. No. 143440, Feb. 11, 2003).

GR: Every written motion shall be set for hearing by the applicant. XPN: Motions which the court may act upon without prejudicing the rights of the adverse party (Sec. 4, Rule 15). e. OMNIBUS MOTION RULE Q: What is the Omnibus Motion Rule? A: GR: All available grounds for objection in attacking a pleading, order, judgment, or proceeding should be invoked at one time; otherwise, they shall be deemed waived (Sec. 8, Rule 15). XPN: The court may dismiss the case motu proprio based on: 1. Lack of jurisdiction over the subject matter; 2. Litis pendentia; 3. Res judicata; and 4. Barred by statute of limitations (Sec. 1, Rule 9) f. LITIGATED AND EX-PARTE MOTIONS Q: What is a litigated motion? A: It is a motion which affects the substantial rights of the parties. A hearing is required. Q: What is an ex-parte motion? A: It is taken or granted at the instance and for the benefit of one party, and without notice to or contestation by any party adversely affected (Regalado, Remedial Law Compendium, p. 264, 2009 ed.) g. PRO-FORMA MOTIONS Q: What is a pro-forma motion? A: It is that which does not comply with the rules on motion and is considered as one filed merely to delay the proceedings (Marikina Development Corp., v. Flojo, G.R. No. 110801, Dec. 8, 1995).

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

CIVIL PROCEDURE
2. MOTIONS FOR BILL OF PARTICULARS a. PURPOSE AND WHEN APPLIED FOR Q: What is a bill of particulars and when can it be availed of? A: Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within 10 days from service thereof (Sec. 1, Rule12). (2003 Bar Question)
Note: Its purpose is to aid in the preparation of a responsive pleading. An action cannot be dismissed on the ground that the complaint is vague or definite. (Galeon v. Galeon, G.R. No. L-30380, Feb. 28, 1973).

2. 3.

If plaintiff, his compliant will be stricken off and dismissed (Sec. 3, Rule 17) If defendant, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff (Sec. 4, Rule 17; Sec. 3, Rule 9).

Note: If the plaintiff failed to comply with the period, the court upon motion of the defendant may strike out the paragraph where ambiguity lies. If the entire complaint is ambiguous, such is striken out and there is no more case.

d. EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING Q: What is the effect of a motion for bill of particulars on the period to file a responsive pleading? A: After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event (Sec. 5, Rule12). Q: Within the period for filing a responsive pleading, the defendant filed a motion for bill of particulars that he set for hearing on a certain date. However, the defendant was surprised to find on the date set for hearing that the trial court had already denied the motion on the day of its filing, stating that the allegations of the complaint were sufficiently made. 1. Did the judge gravely abuse his discretion in acting on the motion without waiting for the hearing set for the motion? 2. If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars, can the trial judge dismiss the case if the plaintiff does not comply with the order? A: 1. No. Sec. 2, Rule 12 authorizes the court to either deny or grant said motion outright or allow the parties an opportunity to be heard. The court is not mandated to conduct a hearing. Yes. Sec. 4, Rule 12 authorizes the court to order the striking out of the pleading affected, hence the dismissal of the complaint. To the same end is the provision of Sec. 3, Rule 17 when the plaintiff fails to comply for no justifiable

b. ACTIONS OF THE COURT Q: What are the actions taken by the court regarding the motion for bill of particulars? A: The court may either: 1. Deny it; 2. Grant it outright; or 3. Allow the parties the opportunity to be heard (Sec. 2, Rule 12). c. COMPLIANCE WITH THE ORDER AND EFFECT OF NON-COMPLIANCE Q: When must be the compliance be effected? A: If the motion is granted, either in whole or in part, it must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court (Sec. 3, Rule 12).
Note: Bill of particulars may be filed either on a separate or in an amended pleading, serving a copy thereof on the adverse party.

Q: What is the effect of non-compliance with the order of a bill of particulars? A: 1. If the order is not obeyed or in case of insufficient compliance therewith, the court: a. May order the striking out of the pleading or the portion thereof to which the order is directed; or b. Make such order as it may deem just (Sec. 4, Rule 12)

2.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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cause with any order of the court or with the Rules. (2008 Bar Question) 3. MOTION TO DISMISS 9. a. GROUNDS Q: What are the grounds for a motion to dismiss under Rule 16? A: 1. That the court has no jurisdiction over the person of the defending party; That the court has no jurisdiction over the subject matter of the claim; That venue is improperly laid; That the plaintiff has no legal capacity to sue;
Note: The issue of the plaintiffs lack of legal capacity to sue cannot be raised for the first time on appeal where the defendant dealt with the former as a party in the proceeding.

8.

That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds;

10. That a condition precedent for filing the claim has not been complied with.(Sec. 1, Rule 16)
Note: Not jurisdictional in nature, hence, deemed waived if not raised.

2.

b. RESOLUTION OF MOTION Q: What are the three courses of action which the trial court may take in resolving a motion to dismiss? A: 1. 2. 3. Dismiss the action or claims; Deny the motion; or Order the amendment of the pleading (Sec. 3, Rule 16).

3. 4.

5.

That there is another action pending between the same parties for the same cause;
Note: Litis pendentia requires concurrence of the following requisites: a. Identity of the parties b. Identity of rights asserted and reliefs prayed for, being founded on the same facts c. Identity with respect to the two preceding particulars, such that any judgment that may be rendered in the pending case would amount to red adjudicate in the other case. (Lim vs. Vianzon, G.R. No. 137187, Aug.3, 2006)

Note: The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor (Sec. 3, Rule16).

c. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS DISMISSED Q: What are the remedies of the plaintiff when the complaint is dismissed? A: If the dismissal is without prejudice, the plaintiff may re-file the complaint. If the dismissal is with prejudice, the plaintiff may file an appeal. (Riano,
Civil Procedure: A Restatement for the Bar, p. 319-320, 2009 ed.)

6.

That the cause of action is barred by a prior judgment or by the statute of limitations;
Note: The requisites of res judicata include: The former judgment must be final a. The court which rendered it has jurisdiction over the subject matter and the parties b. Judgment must be on the merits c. There must be identity of parties, subject matter and causes of action

d. REMEDIES OF THE DEFENDANT WHEN THE MOTION IS DENIED Q: What are the remedies of the defendant when the motion is denied? A: File an answer and proceed with the trial. If decision is adverse, appeal therefrom and raise as error the denial of the motion to dismiss. If there is grave abuse of discretion amounting to lack or excess of jurisdiction, certiorari or prohibition may lie under Rule 65. If there is unlawful neglect of the performance of an act which the law specifically enjoins, mandamus is the proper remedy. (Riano,
Civil Procedure: A Restatement for the Bar, p. 319, 2009 ed.)

7.

That the pleading asserting the claim states no cause of action;


Note: Curable by amendment

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

CIVIL PROCEDURE
e. EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN GROUNDS Q: What is the effect of dismissal on the following grounds: 1. Cause of action is barred by prior judgment or by the statute of limitations; 2. Claim or demand has been paid, waived, abandoned, or otherwise extinguished; and 3. Claim is unenforceable under the statute of frauds? A: Dismissal is with prejudice and constitutes res judicata. The language of the rule, particularly on the relation of the words abandoned and otherwise extinguished to the phrase claim or demand deemed set forth in the plaintiffs pleading is broad enough to include within its ambit the defense of bar by laches. However, the trial court must set a hearing on the motion where the parties shall submit not only their arguments on the questions of law but also their evidence on the questions of fact involved (Pineda v. Heirs of Eliseo Guevarra, G.R. No. 168557, Feb. 19, 2007). f. WHEN THE GROUNDS PLEADED AS AFFIRMATIVE DEFENSES Q: When can the grounds for motion to dismiss be pleaded as affirmative defense? A: If no motion to dismiss has been filed, any of the grounds for dismissal provided for in the Rules may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (Sec. 6, Rule 16) g. BAR BY DISMISSAL Q: What are the grounds for dismissal that may bar the refiling of the same action or claim? A: 1. 2. 3. 4. Res judicata; Prescription; Extinguishment of the claim or demand; and Unenforceability under the State of Frauds. (Sec. 5, Rule 16)

h. DISTINGUISH FROM DEMURRER TO EVIDENCE UNDER RULE 33 Q: Distinguish motion to dismiss under Rule 16 from motion to dismiss under Rule 33. A:
Rule 16 (Motion to Dismiss) Grounded on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for but prior to the filing of the answer Rule 33 (Demurrer to Evidence) Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff

If denied, defendant answers, or else he may be declared in default. If granted, plaintiff may appeal or if subsequent case is not barred, he may re-file the case

May be filed only after the plaintiff has completed the presentation of his evidence (Regalado, Remedial Law, Compendium Vol. I, p. 267, 2005 ed.) If denied, defendant may present evidence. If granted, but on appeal the order of dismissal is reversed, the defendant loses his right to present evidence (Riano, Civil Procedure: A Restatement for the Bar, p. 399, 2009 ed.)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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H. DISMISSAL OF ACTIONS 1. DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE 2. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM 3. DISMISSAL DUE TO THE FAULT OF PLAINTIFF Q: Distinguish the different types of dismissal under Rule 17. A:
Dismissal upon notice by plaintiff (Sec. 1, Rule 17) A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. It is a matter of right. GR: A dismissal without prejudice i.e. the complaint can be re-filed XPNs: 1. The notice of dismissal by the plaintiff provides that the dismissal is with prejudice; or 2. The plaintiff has once dismissed in a competent court an action based on or including the same claim (Twodismissal rule) (Sec. 1, Rule 17) 3. Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved (Serrano v. Cabrera, G.R. No. L-5189, Sept. 21, 1953) Since there is no answer yet filed by the adverse party, no counterclaim recoverable Dismissal upon motion of plaintiff (Sec. 2, Rule 17) After service of the answer or a motion for summary judgment by the adverse party. Dismissal due to fault of plaintiff (Sec. 3, Rule 17) 1. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint. 2. If the plaintiff fails to prosecute his action for an unreason-nable length of time (nolle prosequi). 3. If the plaintiff fails to comply with the Rules or any order of the court. Matter of evidence. GR: Dismissal is with prejudice because it has an effect of an adjudication on the merits. XPN: Unless otherwise declared by the court (Sec. 3, Rule 17)

Matter of discretion upon the court. A complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper (Sec. 2, Rule 17). GR: It is a dismissal without prejudice, XPN: If the order of dismissal specifies that it is with prejudice (Sec. 2, Rule 17)
Note: A class suit shall not be dismissed or compromised without the approval of the court. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint.

GR: It is also without prejudice to the right of defendant to prosecute his counterclaim in a separate action. XPN: Unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action (Sec. 2, Rule 17).

Dismissal upon motion of the defendant or upon the court's own motion is without prejudice to the right of the defendant to prosecute his counterclaim on the same or separate action

Note: The plaintiffs failure to appear at the trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence (Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977). The provision of this

rule shall also apply to the dismissal of any counterclaim, cross-claim, or third-party complaint (Sec. 4, Rule17).

46

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

CIVIL PROCEDURE
Q: When does the two-dismissal rule apply? A: It applies when the plaintiff has: 1. Twice dismissed the actions; 2. Based on or including the same claim; and 3. In a court of competent jurisdiction (Riano, Civil Procedure: A Restatement for the Bar, p. 265, 2009 ed.)
Note: The second notice of dismissal will bar the refiling of the action because it will operate as an adjudication of the claim upon the merits. In other words, the claim may only be filed twice, the first being the claim embodied in the original complaint. (Riano, Civil Procedure: A Restatement for the Bar, p. 265, 2009 ed.)

I. PRE-TRIAL 1. CONCEPT OF PRE-TRIAL Q: What is pre-trial? A: It is a procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal statement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition of the action (Herrera, Vol. I, p. 1074, 2007 ed.). Q: When is pre-trial conducted? A: After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (Sec.1, Rule 18) 2. NATURE AND PURPOSE Q: What is the nature of pre-trial? A: It is mandatory (Sec. 2, Rule 18). Q: What are the purposes of pre-trial? A: The court shall consider the following purposes: 1. Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; 2. Simplification of the issues; 3. Necessity or desirability of amendments to the pleadings; 4. Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; 5. Limitation of the number of witnesses; 6. Advisability of a preliminary reference of issues to a commissioner; 7. Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; 8. Advisability or necessity of suspending the proceedings; and 9. Such other matters as may aid in the prompt disposition of the action. (Sec. 2, Rule 18)

4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT Q: What is the effect of dismissal upon a counterclaim, which was already pleaded? A: 1. If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiffs motion to dismiss, and the court grants the said motion to dismiss, the dismissal shall be limited to the complaint. The defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within fifteen (15) days from notice of the plaintiffs motion to dismiss. The dismissal of the complaint does not carry with it the dismissal of the counterclaim. (Riano, Civil Procedure: A Restatement for the Bar, pp. 266-267, 2009 ed.)

2.

3.

Q: What rule governs the dismissal of counterclaim, cross-claim, or third-party complaint? A: The rule on the dismissal of a complaint applies to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone by notice pursuant to Sec. 1, Rule 17 shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing (Sec. 4, Rule 17).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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3. NOTICE OF PRE-TRIAL Q: To whom shall notice of pre-trial be served? A: It shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him (Sec. 3, Rule 18). 4. APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR Q: Who has the duty to appear at the pre-trial? A: The parties and their counsel. Q: What is the effect of a partys failure to appear during the pre-trial? A: Plaintiffs failure to appear during the pre-trial shall be a cause for dismissal of the action, with prejudice, unless otherwise ordered by the court. Defendants non-attendance during the pretrial shall be a cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof (Sec. 5, Rule 18). (1992 Bar Question)
Note: The non-appearance of a party may be excused only if a valid cause is shown therefore or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (Sec.4, Rule 18)

5.

6.

A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and The number and names of the witnesses, and the substance of their respective testimonies and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses (Sec. 6, Rule 18).

Q: What is the effect of failure to file a pre-trial brief? A: It shall have the same effect as failure to appear at the pre-trial (A.M. No. 03-1-09-SC, July 13, 2004). 6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND PRE-TRIAL IN CRIMINAL CASE Q: Distinguish pre-trial in civil cases from pre-trial in criminal cases. A:
Pre-trial in civil case It is set when the plaintiff moves ex parte to set the case for pre-trial (Sec. 1, Rule 18) Pre-trial in criminal case It is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense The pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. It does not include the possibility of amicable settlement of criminal liability as one of its purposes (Sec. 1, Rule 118). All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused (Sec. 2, Rule 18)

The motion to set the case for pre-trial is made after the last pleading has been served and filed (Sec. 1, Rule 18)

5. PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE Q: When should the parties file with the court and serve on the adverse party their pre-trial briefs? A: They shall file their respective pre-trial briefs in such a manner as shall ensure their receipt thereof at least three (3) days before the date of the pretrial (Sec. 6, Rule 18). Q: What should a pre-trial brief contain? A: 1. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; A summary of admitted facts and proposed stipulation of facts; The issues to be tried or resolved; The documents or exhibits to be presented, stating the purpose thereof;
It considers the possibility of an amicable settlement as an important objective.

2. 3. 4.

Requires the proceeding during the preliminary conference to be recorded in the minutes of preliminary conference to be signed by both parties and/or counsel. The rule allows either the party or his counsel to sign the minutes (A.M. No. 03-109-SC). Sanctions for nonappearance in a pre-trial are imposed upon the plaintiff and the

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

48

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

CIVIL PROCEDURE
defendant in a civil case (Sec. 4, Rule 18). Specifically required to be submitted in a civil case (Sec. 6, Rule 18) (Sec. 3, Rule 18)

Not specifically required in a criminal case.

7. ALTERNATIVE DISPUTE RESOLUTION (ADR) Q: What are the other modes of solving disputes? A: 1. Alternative Dispute Resolution (ADR) a. Arbitration i. Domestic Arbitration

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

Construction Disputes International Commercial Arbitration b. Mediation c. Conciliation d. Early Neutral Evaluation e. Mini-trial Court-Annexed Mediation Appellate Court Mediation Judicial Dispute Resolution Katarungang Pambarangay Law Small Claims Cases Rules on Summary Procedure

ii. iii.

Q: Distinguish the other modes of solving disputes. A:


ADR Court-Annexed Mediation/Judicial Dispute Resolution (A.M. No, 11-1-6-SC-PHILJA) Purpose / Object The purposes of CAM and JDR is to put an end to pending litigation through compromise agreement of the parties and thereby help solve the ever-pressing problem of court docket congestion. It is also intended to empower the parties to resolve their own disputes and give practical effect to the State Policy expressly stated in the ADR Act of 2004 (R.A. No. 9285) Appellate Court Mediation

1.

2.

To actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes. To achieve speedy and impartial justice and unclog court dockets.

1.

2.

After mediation has failed in the lower courts, Appellate Court Mediation provides an added option to put an end to costly and long-drawn litigation. It facilitates the interest-based settlement of the dispute through proposals coming from the parties or suggested by the mediator and accepted by the parties.

Subject to the terms of the contract or the submission agreement, the arbitrators selected must, within 5 days from notice of appointment, if the parties to the controversy reside within the same city or province, or within 15 days after appointment if the parties reside in different provinces, set a time and place for the hearing of the matters submitted to them. (Sec. 12, R.A. 876)

Where to File Court acquiring jurisdiction of the case since mediation is part of the mandatory pre-trial
Note: Court-annexed mediation should be distinguished from court-referred mediation. The former is conducted under the courts auspices after such court has acquired jurisdiction of the dispute while the latter is mediation ordered by the court to be conducted in accordance with the parties agreement when an action is prematurely commenced in violation of such agreement. The first stage is the CAM where the judge refers the parties to the Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators. Upon failing to secure a settlement of the dispute during the first stage, a second attempt is made at the JDR stage, where the JDR judge becomes a mediator-conciliatorearly neutral evaluator in a continuing effort to secure a settlement

Court of Appeals

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Cases Covered 1. All civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure, including the civil liability for violation of B.P. 22, except those which by law may not be compromised; 2. Special proceedings for the settlement of estates; 3. All civil and criminal cases filed with a certificate to file action issued by the Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law 4. The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code; 5. The civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years imprisonment, where the offended party is a private person; 6. The civil aspect of estafa, theft and libel; 7. All civil cases and probate proceedings, testate and intestate, brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (1) of the Judiciary Reorganization Act of 1980; 8. All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (2) of the Judiciary Reorganization Act of 1980; 9. All civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par.(3) of the Judiciary Reorganization Act of 1980; 13 and 10. All habeas corpus cases decided by the first level courts in the absence of the Regional Trial Court judge, that are brought up on appeal from the special jurisdiction granted to the first level courts under Section 35 of the Judiciary Reorganization Act of 1980. Cases Excluded 1. Civil cases which by law cannot be compromised (Article 2035, New Civil Code); 2. Other criminal cases not covered under paragraphs 3 to 6 above; 3. Habeas Corpus petitions; 3. 4. All cases under Republic Act No. 9262 (Violence against Women and Children); and Habeas corpus petitions involving custody of minors when the subject is detained for commission of a criminal offense.

Any dispute or controversy which may thereafter arise between parties to a contract pursuant to an arbitration clause or any controversy or dispute wherein the parties agree to submit to an alternative dispute resolution system

1.

2.

3.

4.

Civil cases brought on ordinary appeal or petition for review. Appeals from final orders, awards, judgments, resolutions of the Court of Tax Appeals and quasi-judicial agencies in the exercise of their quasi-judicial functions through petition for review or certiorari that questions a decision for having been rendered in grave abuse of discretion amounting to lack of jurisdiction. Special civil actions for certiorari, except those involving pure questions of law. Habeas corpus (court order directing law enforcement officials or custodians of detained persons to produce that person in court) cases involving custody of minors, with the consent of the parties, provided that the minor is not detained for commission of a criminal offense. Criminal cases cognizable by the Katarungang Pambarangay (Barangay Justice System) under R.A. 7160 or offenses punishable by imprisonment not exceeding one year or a fine not exceeding P5,000 or both such fine and imprisonment.

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

Labor disputes under the Labor Code Civil status of persons Validity of a marriage Any ground for legal separation Jurisdiction of courts Future legitime Criminal liability Those which by law cannot be compromised Dispute resolution services provided by

1.

Civil cases, which by law cannot be compromised. Criminal cases except those which involve habeas corpus of minors not detained for a criminal offense.

2.

50

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

CIVIL PROCEDURE
government agencies where mediators or arbitrators are selected by government agencies: a. Mining Act; b. Consumer Act; or c. HLURB Resolution No. R-586 5. Cases with pending application for Restraining Orders/Preliminary Injunctions.

4.

Cases with pending application for restraining orders/preliminary injunctions, unless both parties request for mediation

Note: The table for Katarungang Pambarangay Law, Small Claims Cases and Rules on Summary Procedure are found on p.17

Q: Distinguish the different kinds of the ADR system. A:


Arbitration Mediation Conciliation Definition A process whereby the parties request a third person or persons to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship (Art. 1 [3], UNCITRAL Model Law on Conciliation) Early Neutral Evaluation It is a process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a non-binding assessment by an experienced, neutral person, with expertise in the subject or the substance of the dispute. Early neutral Evaluator assesses or reviews the issues submitted by the parties and tenders its evaluation which is non-binding. Mini-Trial

It is a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to R.A. 9285, resolve a dispute by rendering an award. It results in the adjudication of a dispute.

It is a voluntary process in which an impartial and neutral third party (mediator), selected by the disputing parties, facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement regarding a dispute.

It is a structured dispute resolution method in which the merits of a case are argued before a panel comprising of senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement.

Arbitrator acts as out-of-court judge and settles the dispute extrajudicially. He makes a determination of the facts and applies the law to those facts to resolve a dispute independently of the actual result desired by the parties.

Mediator does not render an award but only arranges the facts to be negotiated so that parties can come to a compromise agreement. He assists the parties in reaching a mutually agreeable settlement of their dispute through direct negotiations. He actively participates in resolving the dispute, and then gives an opinion. The decision or opinion is not binding on the parties. It is recommendatory in nature. The mediator

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

Panel renders a decision based on the merits of the arguments of the parties.

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

Effect of decision He does not render a decision. The dispute is left to be settled by the parties themselves.

The assessment is not binding upon the parties.

It need not be confirmed by the courts.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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the RTC. merely suggests a solution to the dispute.

Q: What is the State policy in alternative dispute resolution? A: The state policy in ADR is to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements in resolving their disputes. Q: What is the Constitutional basis of alternative dispute resolution? A: The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. (Par. 2, Sec. 3, Art. XIII, 1987 Constitution) Q: What is the legal basis of alternative dispute resolution? A: The legal basis would be, the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. (Art. 1306, NCC) Q: What is an alternative dispute resolution system? A: It means any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof. (Sec.3[a] of R.A. No. 9285)
Note: Its purposes are to: 1. Actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes; 2. Achieve speedy and impartial justice; and 3. Unclog court dockets.

functions in any ADR system. An ADR practitioner refers to individuals acting as mediator, conciliator, arbitrator or neutral evaluator. (Sec.3[b] of R.A. No. 9285) J. INTERVENTION Q: What is intervention? A: It is a legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirement set by the Rules of Court. This person who intervenes is one who is not originally impleaded in the action (First Philippine Holdings Corp. v. Sandiganbayan, G.R. No. 88345, Feb. 1, 1996)
Note: Right to intervene is not an absolute right as it can be secured only in accordance with the terms of the applicable statute or rule. Riano, Civil Procedure: A Restatement for the Bar, p. 345, 2009 ed.)

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

2.

3. Q: Distinguish alternative dispute resolution provider from an alternative dispute resolution practitioner. A: An ADR provider means institutions or persons accredited as mediator, conciliator, arbitrator, neutral evaluator, or any person exercising similar

4.

The movant must show in his motion that he has: a. Legal interest in the matter in controversy; b. Legal interest in the success of either of the parties; c. Legal interest against both parties; or d. So situated as to be adversely affected by a distribution or other disposition of the property in the custody of the court or of an officer thereof (Sec. 1, Rule 19); Intervention will not unduly delay or prejudice the adjudication of the rights of original parties; and Intervenors rights may not be fully protected in a separate proceeding (Mabayo Farms, Inc. vs. CA, GR 140058, Aug. 1, 2002).

52

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

CIVIL PROCEDURE
Q: Is intervention an independent proceeding? A: GR: No. It is not an independent proceeding but is ancillary and supplemental to an existing litigation. Hence, the final dismissal of the principal action results into the dismissal of said ancillary action. XPN: When intervention has been allowed and the complaint-in-intervention has already been filed before plaintiffs action had been expressly dismissed (Metrobank v. RTC-Manila, G.R. No. 89909, Sept. 21, 1990). (2000 Bar Question) Q: What does legal interest mean? A: It must be one that is actual and material, direct and of an immediate character, not merely contingent or expectant so that the intervenor will either gain or lose by the direct legal operation of the judgment. (Riano, Civil Procedure: A Restatement for the Bar, p. 346, 2009 ed.) 2. TIME TO INTERVENE Q: When is the time to intervene? A: The motion to intervene may be filed any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (Sec. 2, Rule 19) Q: What is the procedure for intervention? A: 1. The intervenor shall file a motion for intervention attaching thereto his pleading-inintervention. 1. If the purpose is to assert a claim against either or all of the original parties the pleading shall be called a complaint-in-intervention. 2. If the pleading seek to unite with the defending party in resisting a claim against the latter file an answer-inintervention. (Sec 3, Rule 19) 2. The motion and the pleading shall be served upon the original parties. 3. The answer to the complaint-inintervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the courts. (Sec.4, Rule 19) 2. A: GR: After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the right of the movant. The motion to intervene must be filed at any time before rendition of judgment by the trial court (Sec. 2, Rule 19). XPNs: 1. With respect to indispensable parties, intervention may be allowed even on appeal (Falcasantos v. Falcasantos, G.R. No. L-4627, May 13, 1952); 2. When the intervenor is the Republic (Lim v. Pacquing, G.R. No. 115044, Jan. 27, 1995); 3. Where necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenors right to appeal (Pinlac v. CA, G.R. No. 91486, Sept. 10, 2003); or 4. May be allowed during the pendency of the appeal, where the interest of justice so required (Tahanan Dev. Corp. v. CA, G.R. No. L-55771, Nov. 15, 1982). Q: When shall the intervenor file a pleading-inintervention? A: 1. He shall file a complaint-in-intervention if he asserts a claim against either or all of the original parties; or An answer-in-intervention if he unites with the defending party in resisting a claim against the latter. (Sec. 3, Rule 19) Q: May intervention be allowed after judgment has been rendered by the court?

Q: When should an answer to complaint-inintervention be filed? A: It shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court (Sec. 4, Rule 19). 3. REMEDY FOR THE DENIAL OF MOTION TO INTERVENE Q: What is the remedy for the denial of motion to intervention? A: The remedy of the aggrieved party is appeal. Mandamus will not lie except in case of grave abuse of discretion.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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K. SUBPOENA Q: What is a subpoena? A: It is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted under the laws of the Philippines, or for taking of his deposition (Sec. 1, Rule 21). 1. SUBPOENA DUCES TECUM Q: What is subpoena duces tecum? A: A process directed to a person requiring him to bring with him any books, documents, or things under his control (Sec. 1, Rule 21). 2. SUBPOENA AD TESTIFICANDUM Q: What is subpoena ad testificandum? A: A process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted by competent authority or for the taking of his deposition (Sec. 1, Rule 21). Q: Distinguish subpoena from summons. A:
Subpoena An order to appear and testify or to produce books and documents May be served to a nonparty Needs tender of kilometrage, attendance fee and reasonable cost of production fee Summons Order to answer complaint Served on the defendant Does not need tender of kilometrage and other fees

Q: What is the rule when application for subpoena to a prisoner is made? A: The judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose and no prisoner sentenced to death, reclusion perpetua or life imprisonment and is confined in prison shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the SC (Sec. 2, Rule 21). Q: What are the contents of subpoena? A: It shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant (Sec. 3). Q: What is the rule on subpoena for depositions? A: Proof of service of a notice to take a deposition, as provided in Secs. 15 and 25, Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court (Sec. 5, Rule 21). Q: How is service of subpoena made? A: It shall be made in the same manner as personal or substituted service of summons (Sec. 6, Rule 21).
Note: Service of a subpoena shall be made by the sheriff, by his deputy, or by any other person specially authorized, who is not a party and is not less than eighteen (18) years of age (Sec. 6, Rule 21).

3. SERVICE OF SUBPOENA Q: Who issues subpoena? A: 1. 2. 3. The court before whom the witness is required to attend; The court of the place where the deposition is to be taken; The officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or Any Justice of the SC or of the CA in any case or investigation pending within the Philippines. (Sec. 2, Rule 21)

Q: What should be delivered and tendered to the person whom subpoena is served? A: The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one days attendance and the kilometrage allowed by the Rules. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered (Sec. 6, Rule 21).
Note: When a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made (Sec. 6, Rule 21).

4.

54

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

CIVIL PROCEDURE
Q: Why must service of subpoena be made? A: The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance (Sec. 6, Rule 21). when the subpoena was served (Sec. 4, Rule 21). L. MODES OF DISCOVERY Q: What are the different modes of discovery? 4. COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT Q: What is the effect of failure to comply with subpoena? A: GR: The court or judge which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure, if the court should determine that his disobedience was willful and without just cause. The refusal to obey a subpoena without adequate cause shall be deemed contempt of the court issuing it (Secs. 8 and 9, Rule 21). XPNs: 1. Where the witness resides more than 100 km. from his residence to the place where he is to testify by the ordinary course of travel, generally, by overland transportation (viatory right); or 2. When the permission of the court in which the detention prisoners case is pending was not obtained (Sec. 10, Rule 21). 5. QUASHING OF SUBPOENA 4. Q: How to quash a subpoena? A: Subpoena duces tecum: Upon motion promptly made and, in any event, at or before the time specified therein: 1. If it is unreasonable and oppressive, or 2. The relevancy of the books, documents or things does not appear, or 3. If the person is whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof (Sec. 4, Rule 21). 4. That the witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served Subpoena ad testificandum: 1. That the witness is not bound thereby. 2. That the witness fees and kilometrage allowed by the Rules were not tendered

A: 1. 2. 3. 4. 5. 6. Depositions pending action (Rule 23) Depositions before action or pending appeal (Rule 24) Interrogatories to parties (Rule 25) Admission by adverse party (Rule 26) Production or inspection of documents and things (Rule 27) Physical and mental examination of persons (Rule 28)

Note: The modes of discovery are cumulative. They are not alternative nor mutually exclusive.

Q: What are the basic purposes of the rules of discovery? A: 1. To enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions; To obtain knowledge of material facts or admissions from the adverse party through written interrogatories; To obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admissions; To inspect relevant documents or objects, and lands or other property in the possession and control of the adverse party; and To determine the physical or mental condition of a party when such is in controversy (Koh vs. IAC, 144 SCRA 259).

2.

3.

5.

1. DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE ACTION OR PENDING APPEAL a. MEANING OF DEPOSITION Q: What is deposition? A: A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. This testimony is taken out of court. Deposition may be: a. An oral examination b. Written interrogatories (Sec 1, Rule 23)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: When can depositions may be availed of? A: a. b. During a pending action (Rule 23) deposition de benne esse Before action or Pending appeal (Rule 24) deposition in perpetuam rei memoriam XPN: If the deposition or any part thereof is offered in evidence for any purpose (Sec. 8, Rule 23). XPN to the XPN: Introduction of deposition does not make the deponent his witness: 1. If the deposition is used for impeaching or contradicting the deponent (Sec. 8, Rule 23); or 2. If the adverse party uses the deposition of the other party (Sec. 4[b], Rule 23) Q: May a party rebut a deposition? A: Yes. At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party (Sec.9, Rule 23). Q: Before whom may depositions be taken? A: 1. If within the Philippines a. Judge; b. Notary public; or c. Any person authorized to administer oaths, as stipulated by the parties in writing (Sec. 10, Rule 23). If outside the Philippines a. On notice, before a secretary of embassy or legation, consul-general, consul, vice-consul, or consular agent of the Philippines; b. Before such person or officer as may be appointed by commission or letters rogatory; or c. Any person authorized to administer oaths, as stipulated by the parties in writing (Sec. 11, Rule 23).

Q: When may plaintiff be permitted to take depositions? A: GR: Before answer is served because plaintiff must await joinder of issues. XPN: In cases of special circumstances. There must be some necessity or good reason for taking the testimony immediately or that it would be prejudicial to the party seeking the order to be compelled to await joinder of issue. E.g.: witness is aged or infirm, or about to leave the courts jurisdiction. (Herrera, Vol. II, pp. 1213, 2007 ed.) Q: When is leave of court necessary when taking depositions? When is it not necessary? A: 1. It is necessary a. Before service of an answer but after the jurisdiction has been acquired over the defendant or over the property subject of the action b. If the deposition to be taken is that of a prisoner. (sec 1, Rule 23) 2. It is not necessary when an answer has already been served and the deponent is not confined in prison. (sec. 1, Rule 23) Q: What is the effect of substitution of parties? A: It does not affect the right to use depositions previously taken; and when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors-ininterest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor (Sec. 5, Rule 23). Q: Should the deponent be deemed a witness of the party taking his deposition? A: GR: No (Sec. 7, Rule 23).

2.

Q: When shall letters rogatory or commission be issued? A: They shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just and appropriate (Sec. 12, Rule 23). Q: Distinguish commission from letters rogatory. A:
Commission Letters Rogatory Instrument issued by a Instrument sent in the name court of justice, or and by authority of a judge or other competent court to another, requesting tribunal, to authorize the latter to cause to be a person to take examined, upon interrogatories depositions or do any filed in a case pending before

56

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

CIVIL PROCEDURE
other act by authority of such court or tribunal. the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed. Issued to the appropriate judicial officer of the foreign country who will direct somebody in said foreign country to take down testimony. Applicable rules of procedure are those of the foreign court requested to act. Resorted to if the execution of the commission is refused in the foreign country. (There must be a showing that the commission is inadequate or ineffective) Leave of court is necessary.

not known, a general description sufficient to identify him or the particular class or group to which he belongs (Sec. 15, Rule 23).
Note: On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time (Sec. 15, Rule 23)

Issued to a nonjudicial foreign officer who will directly take the testimony. Applicable rules of procedure are those of the requesting court. Resorted to if permission of the foreign country is given. Leave of court is not necessary.

Q: When may the court make orders for the protection of parties and deponents? A: After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make orders for the protection of parties and deponents (Sec. 16, Rule 23). Q: What are the orders that the court may make for the protection of parties and deponents? A:

Q: Who are disqualified to be a deposition officer? A: 1. One who is related to the deponent within the 6th degree of consanguinity or affinity; An employee or attorney of one of the parties; One who is related to the attorney of the deponent within the same degree or employee of such attorney; and One who is financially interested in the action (Sec. 13, Rule 23).

1. 2.

3. 4. 5.

2. 3.

4.

6.

Q: May the parties stipulate in writing for the taking of depositions? A: Yes. They may do so before any person authorized to administer oaths, at any time, or place, in accordance with the Rules, and when so taken may be used like other depositions (Sec. 14, Rule 23). Q: What is the requirement in taking deposition upon oral examination? A: A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action (Sec. 15, Rule 23). Q: What shall the notice state? A: It shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is 7.

8.

That the deposition shall not be taken; That it may be taken only at some designated place other than that stated in the notice; That it may be taken only on written interrogatories; That certain matters shall not be inquired into; That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel; That after being sealed, the deposition shall be opened only by order of the court, or that secret processes, developments, research need not be closed; That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression (Sec. 16, Rule 23).

Q: What are the duties of the officer before whom the deposition is to be taken? A: He shall put the witness on oath and shall personally, or by someone acting under his discretion and in his presence, record the testimony of the witness (Sec. 17, Rule 23).
Note: The testimony shall be taken stenographically unless the parties agree otherwise (Sec. 17, Rule 23)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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4. Q: What objections shall be noted by the officer upon the deposition? A: All objections made at the time of the examination to the: 1. Qualifications of the officer taking the deposition; 2. Manner of taking the deposition; 3. Evidence presented; 4. Conduct of any party; or 5. Any other objection to the proceedings (Sec. 17, Rule 23).
Note: A deposition officer has no authority to rule on the objection (Herrera, Vol. II, p. 34, 2007 ed.)

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

Q: What is the effect if the witness does not sign the deposition? A: The officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under Sec. 29 (f), Rule 23, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part (Sec. 19, Rule 23). Q: What are the duties of the officer after the taking of the deposition? A: He shall: 1. Certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness; 2. Then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)"; 3. Promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing (Sec. 20, Rule 23); and 4. Give prompt notice of its filing to all the parties (Sec. 21, Rule 23).
Note: Failure to comply with this requirement is a mere defect in form which cannot affect the admissibility of the deposition. (Herrera, Vol. II, p. 38, 2007 ed.)

Q: What may the parties do if they cannot participate in the oral examination? A: The parties may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim (Sec. 17, Rule 23). Q: What is the consequence if a party or the witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken? A: The refusal may be considered contempt of that court (Sec. 2, Rule 129). Q: When shall the deposition be submitted to the witness for examination? A: It shall be submitted when the deposition is fully transcribed and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties (Sec. 19, Rule 23). Q: What shall be done with the changes which the witness desire to make? A: Any changes in form or substance shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them (Sec. 19, Rule 23). Q: Is the signing of deposition necessary? A: GR: Yes, it shall be signed by the witness. XPN: 1. Parties by stipulation waive the signing; 2. Witness is ill; 3. Witness cannot be found; or

Q: When shall the officer furnish a copy of the deposition to any party or to the deponent? A: He shall furnish a copy upon payment of reasonable charges therefor (Sec. 22, Rule 23). Q: What is the consequence of failure to attend of the party giving notice? A: The court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorneys fees (Sec. 23, Rule 23). Q: What is the consequence of failure of party giving notice to serve subpoena? A: If because of such failure, the witness does not attend, and if another party attends in person or by

58

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

CIVIL PROCEDURE
counsel because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorneys fees (Sec. 24, Rule 23). Q: How is deposition upon written interrogatories done? 5. A: A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition (Sec. 25, Rule 23).
Note: The duties of the officer under Secs. 17, 19, 20, 21 & 22 of Rule 23 shall also be followed on deposition upon written interrogatories (Secs. 26 & 27, Rule 23).

6.

occurring at the oral examination in the manner of taking the deposition in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. As to form of written interrogatories Objections to the form of written interrogatories submitted under Secs. 25 and 26 are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of the last interrogatories authorized. As to manner of preparation Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Secs. 17, 19, 20 and 26 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained (Sec. 29, Rule 23)

Q: What is the effect of errors and irregularities in depositions? A: 1. As to notice All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. As to disqualification of officer Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. As to competency or relevancy of evidence Objections to the competency of witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground, of the objection is one which might have been obviated or removed if presented at that time. As to oral examination and other particulars Errors and irregularities

Q: Who may file a petition for deposition before action? A: Any person who wants to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines (Sec. 1, Rule 24). Q: What are the contents of the petition? A: The petition shall be entitled in the name of the petitioner and shall show: 1. that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; 2. the subject matter of the expected action and his interest therein; 3. the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; 4. the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and 5. The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from

2.

3.

4.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony (Sec.2, Rule 24) Q: What is the rule on notice and service of depositions before action? A: The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (Sec. 3, Rule 24) Q: What are the contents of the motion for deposition pending appeal? A: The motion shall state: 1. The names and addresses of the persons to be examined 2. The substance of the testimony which he expects to elicit from each 3. The reason for perpetuating their testimony. (Sec. 7, Rule 24).
Note: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed under Rule 23. (Sec. 7, Rule 24)

3.

any purpose by any party if the court finds that: DR. USE a. The witness is Dead b. The witness Resides more than 100 kilometers from the place of trial or hearing, or is out of the Philippines. Unless it appears that his absence was procured by the party offering the deposition c. The witness is Unable to testify because of age, sickness, infirmity or imprisonment d. The party offering the deposition has been unable to procure the attendance of the witness by Subpoena e. Upon application and notice, that such Exceptional circumstances exist as to make it desirable in the interest of justice (Sec. 4, Rule 23)

Q: What is the dual function of depositions? A: 1. Rule 23 method of discovery, with use on trial not necessarily contemplated; and Rule 24 a method of presenting testimony.

2.

Q: What is the use of deposition pending appeal? A: Depositions are taken pending appeal with the view to their being used in the event of further proceeding in the court of origin or appellate court. (Sec. 7, Rule 24)
Note: The deposition taken under this Rule is admissible in evidence in any action subsequently brought involving the same subject matter (Sec. 6, Rule 24)

b. USES; SCOPE OF EXAMINATION Q: To whom may the deposition be used against? A: Any part or all of the deposition, so far as admissible under the rules of evidence, may be used against: 1. Any party who was present or represented at the taking of the deposition; or 2. One who had due notice of the deposition (Sec. 4, Rule 23) Q: What are the uses of depositions? A: 1. 2. Contradicting or impeaching the testimony of the deponent as a witness; Any purpose by the adverse party where the deponent is a party; or

Q: What is the scope of the examination of the deponent? A: Unless otherwise ordered by the court as provided by Sec. 16 or 18, Rule 23, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the: 1. Existence; 2. Description; 3. Nature; 4. Custody; 5. Condition; 6. Location of any books, documents, or other tangible things; and

60

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

CIVIL PROCEDURE
7. The identity and location of persons having knowledge of relevant facts (Sec. 2, Rule 23). Q: Distinguish protection order from motion to terminate or limit examination. A: c. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE MADE Q: What is the rule on objections to admissibility of deposition? A: Subject to the provisions of Sec. 29, Rule 23, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (Sec. 6, Rule 23) d. WHEN MAY TAKING OF DEPOSITION BE TERMINATED OR ITS SCOPE LIMITED Q: What are the grounds for the termination or limitation of the examination? A: 1. 2. Upon a showing that the examination is being conducted in bad faith; In such manner as unreasonably to annoy, embarrass or oppress the deponent or party (Sec. 18, Rule 23); or When the constitutional privilege against self-incrimination is invoked by deponent or his counsel (Herrera, Vol. II, p. 37, 2007 ed.).
Protection Order (Sec. 16, Rule 23) Provides protection to the party or witness before the taking of deposition. The Motion is filed with the court in which the action is pending. Motion to Terminate or Limit Examination (Sec. 18, Rule 23) Provides such protection during the taking of deposition. Motion or petition is filed in the court in which the action is pending or the RTC of the place where the deposition is being taken.

Q: What is the rule on objections to admissibility of deposition? A: Subject to the provisions of Sec. 29, Rule 23, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (Sec. 6, Rule 23). 2. WRITTEN INTERROGATORIES TO ADVERSE PARTIES Q: What is the purpose of interrogatories to parties? A: For eliciting material and relevant facts from any adverse party (Sec. 1, Rule 25). Q: Distinguish particulars. A:
Interrogatories Interrogatories to parties are not directed to a particular pleading. Instead, they seek to disclose all material and relevant facts from a party (Sec 1, Rule 25) Bill of Particulars Designed to clarify ambiguities in a pleading or to state with sufficient definiteness allegations in a pleading. It is therefore directed to a pleading (Sec 1, Rule 12)

3.

Note: If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable (Sec. 18, Rule 23).

interrogatories

from

bill

of

Q: When may taking of deposition be terminated or its scope limited? A: At any time during the taking of the deposition, on motion or petition of any party or of the deponent. (Sec. 18, Rule 23)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Distinguish depositions upon written interrogatories under Rule 23, Section 25 from interrogatories to parties under Rule 25.
A: Depositions Upon Written Interrogatories to Interrogatories to Parties Parties (Rule 25) (Sec. 25, Rule 23) Deponent Party or ordinary witness Party only Procedure With intervention of the No intervention. officer authorized by the Written interrogatories Court to take deposition are directed to the party himself Not served upon the adverse party directly. They Served directly upon are instead delivered to the the adverse party (Sec officer before whom the 1, Rule 25) deposition is to be taken. (Sec 26, Rule 23) Scope Direct, cross, redirect, reOnly one set of cross interrogatories Interrogatories 15 days to answer No fixed time unless extended or reduced by the court Note: The party against whom it is directed may make objections to the interrogatories. (Sec. 2, Rule 25) Judgment by default may be rendered against a party who fails to serve his answer to written interrogatories. (Sec.3[c], Rule 29)

Q: How can a party make objections to the interrogatories? A: Objections shall be presented to the court within 10 days after service of the interrogatories. The filing of the objections shall have the effect of deferring the filing and service of the answer to the interrogatories (Sec. 3, Rule 25). Q: Is leave of court necessary before a party may be served with written interrogatories? A: GR: It is not necessary after answer has been served, for the first set of interrogatories. XPN: It is necessary before answer has been served because, at that time, the issues are not yet joined and the disputed facts are not yet clear. Q: What is the scope and use of interrogatories? A: Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided in section 4 of the same Rule (Sec. 5, Rule 25). a. CONSEQUENCES OF REFUSAL TO ANSWER Q: What are the consequences of refusal to answer? A: (1) If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require

Q: What is interrogatories?

the

procedure

in

taking

A: The mode of discovery is availed of by filing and serving upon the adverse party written interrogatories to be answered by the party served. If the party is a juridical entity, it shall be answered by any of its officers competent to testify in its behalf. (Sec 1, Rule 25) The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. Q: How many interrogatories may a party serve? A: No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party (Sec. 4, Rule 25). Q: How are interrogatories answered? A: The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time (Sec. 2, Rule 25).

62

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

CIVIL PROCEDURE
the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorneys fees. If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorneys fees (Sec. 1, Rule 29). (2) If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court (Sec. 2, Rule 29). (3) If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination (Sec. 3, Rule 29). b. EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES Q: What is the effect of failure to serve written interrogatories? A: GR: A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. XPN: When allowed by the court and there is good cause shown and the same is necessary to prevent a failure of justice (Sec. 6, Rule 25).
Note: The sanctions adopted by the rules is not one of compulsion in the sense that the party is being compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him.

3. REQUEST FOR ADMISSION Q: What admissions may be requested from the adverse party? A: Admission of the: 1. Genuineness of any material and relevant document described in and exhibited with the request; or 2. Truth of any material and relevant matter of fact set forth in the request (Sec. 1, Rule 26).
Note: The request for admission must be served directly upon the party; otherwise, the party to whom the request is directed cannot be deemed to have admitted the genuineness of any relevant document described in and exhibited with the request or relevant matters of fact set forth therein on account of failure to answer the request for admission (Briboneria v. CA, G.R. No. 101682, Dec. 14, 1992). However, the answer to a request for admission properly served which was signed and sworn to by the counsel of the party so requested, is sufficient compliance with this rule, especially in the light of counsels authority under Secs. 21 and 23, Rule 138 (Nestle Philippines, Inc. v. CA, G.R. No. 102404, Feb. 1, 2002)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: When may request for admission be made? A: At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter. (Sec. 1, Rule 26). a. IMPLIED ADMISSION BY ADVERSE PARTY Q: When is there an implied admission? Q: May an admission be withdrawn? A: GR: Each of the matters of which an admission is requested shall be deemed admitted. XPN: Unless, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters (Sec. 2, Rule 26).
Note: When the defendant is silent on the plaintiffs request for admission, he is deemed to have impliedly admitted the facts set forth therein (Herrera, Vol. II, p. 56, 2007 ed.)

Q: When should objections to any request for admission be submitted? A: They shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable (Sec. 2[b], Rule 26).

A: Yes. The court may allow the party making the admission to withdraw or amend the admission upon such terms as may be just (Sec. 4, Rule 26). d. EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION Q: What is the effect of failure to file and serve request for admission? A: A party who fails to file and serve a request for admission on the adverse party on material and relevant facts at issue shall not be permitted to present evidence on such facts unless otherwise allowed by the court for good cause shown and to prevent a failure of justice (Sec. 5, Rule 26). 4. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Q: What may the court order under this mode of discovery? A: Upon motion of any party showing good cause therefor, the court in which an action is pending may order any party to: 1. Produce and permit the inspection and copying or photographing, by or on behalf of the moving party, or of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or 2. Permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon (Sec. 1, Rule 27).

b. CONSEQUENCES OF FAILURE TO ANSWER REQUEST FOR ADMISSION Q: What is the effect for failure to answer a request for admission? A: The facts or documents are deemed admitted. Under the Rules, each of the matters of which an admission is requested shall be deemed admitted unless within a period designated in the request which shall not be less than 15 days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matter of which an admission is requested or setting forth in detail the reason why he cannot truthfully either admit or deny those matters. (Sec. 2, Rule 26) c. EFFECT OF ADMISSION Q: What is the effect of admission? A: Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding (Sec. 3, Rule 26).

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

CIVIL PROCEDURE
Q: What are the limitations on the request for production or inspection of documents or things? A: 1. 2. Should not be privileged; Should constitute or contain evidence material to any matter involved in the action and which are in his (the party ordered) possession, custody, or control (Sec. 1, Rule 27); and In the petition, the papers and documents to be produced must be sufficiently described. A: 1. A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same. (Sec 1, Rule 27) The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (Sec 1, Rule 27)

2.

3.

5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS Q: When may physical and mental examination of persons be ordered?

Q: What are privileged communications? A: 1. Communication between: a. Husband and wife b. Attorney and client c. Physician and patient d. Priest and penitent e. Public officers and public interest Editors may not be compelled to disclose the source of published news Voters may not be compelled to disclose for whom they voted Trade secrets Information contained in tax census returns; and Bank deposits.

A: It may be ordered in an action in which the physical or mental condition of a party is in controversy (Sec. 1, Rule 28).
Note: Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege.

2. 3. 4. 5. 6.

Q: What is the procedure to avail physical and mental examination of persons? A: 1. A motion must be filed showing good cause for the examination, with notice to the other parties as well aside from the party to be examined. (Sec 2, Rule 28) The motion shall specify the time, place, manner, conditions and scope of the examination and by the person/s by whom it is made. (Sec 2, Rule 28) The party examined may request the party causing the examination to be made to deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. (Sec 3, Rule 28) The party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. (Sec 3, Rule 28)

Q: Distinguish the rule on production or inspection of documents or things under Rule 27 from subpoena duces tecum. A:
Production or Inspection of Documents or Things Essentially a mode of discovery. Limited to the parties to the action. Issued only upon motion with notice to the adverse party. Subpoena Duces Tecum Means of compelling production of evidence It may be directed to any person whether a party or not. Issued upon an ex parte application.

2.

3.

4.

Note: This mode of discovery does not authorize the opposing party or the clerk of court or other functionaries of the court to distrain the articles or deprive the person who produced the same of their possession, even temporarily (Tanda v. Aldaya, GR No. L-13423, Nov. 23, 1959).

Q: What is the effect if the party refuses to deliver the report upon request to the person causing the examination to be made? A: The court may order requiring the delivery on such terms as are just. (Sec 3, Rule 28)

Q: What is the procedure to avail the production or inspection of documents or things?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What is the effect if the physician refuses or fails to make a report? A: The court may exclude his testimony. (Sec 3, Rule 28) 2. Q: What is the effect if the party examined requests and obtains a report on the results of the examination? A: 1. He has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition (Sec. 3, Rule 28) He waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of every other person who has so examined or may thereafter examine him (Sec. 4, Rule 28).

6. CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY Q: What are the sanctions in case of refusal to comply with the modes of discovery? A:
Refusal to answer any question upon oral examination Order to compel an answer; Contempt; Require payment of reasonable fees incurred by the proponent; Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. 5. Dismiss the action or the proceeding; 6. Render a Judgment by default against the disobedient party; 7. Refuse to allow the disobedient party to support or oppose claims or defenses; 8. Strike out all or any part of the pleading of the disobedient party; 9. Stay further proceedings until order is obeyed; 10. Order the arrest of the refusing party. Refusal to produce document or thing for inspection, copying or photographing 1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; 2. Refuse to allow the disobedient party to support or oppose claims or defenses; 3. Strike out all or any part of the pleading of the disobedient party; 4. Dismiss the action or the proceeding; 5. Render a Judgment by default against the disobedient party; 6. Stay further proceedings until order is obeyed; 7. Render a Judgment by default against the disobedient party 8. Order the arrest of the refusing party. Refusal to submit to Physical or Mental examination 1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; 2. Prohibit the disobedient party to introduce evidence of physical and mental conditions; 3. Strike out all or any part of the pleading of the disobedient party; 4. Dismiss the action or the proceeding; 5. Render a Judgment by default against the disobedient party; 6. Stay further proceedings until order is obeyed; 7. Render a Judgment by default against the disobedient party Refusal to the request for admission by adverse party 1. Require payment of reasonable fees incurred by the proponent (Secs. 1-4) 2. Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26). 1. 2. 3. 4.
Note: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the implied admission. The amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not been affected by the amendment.

Note: Expenses and attorneys fees are not to be imposed upon the Republic of the Philippines. The matter of how, and when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending, having always in mind the paramount and overriding interest of justice (Zepeda v. China Banking Corp., G.R. No. 172175, Oct. 9, 2006).

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

CIVIL PROCEDURE
M. TRIAL Q: When is a case ready for trial? Q: What is a trial? A: It is a judicial process of investigating and determining the legal controversies starting with the production of evidence by the plaintiff and ending with his closing arguments (Riano, Civil Procedure: A Restatement for the Bar, p. 394, 2009 ed.) Q: Is trial necessary? A: GR: When an issue exists, trial is necessary. Decision should not be made without trial. XPNs: There is no need for trial in the following cases: 1. Where the pleadings of the parties tender no issue at all, a judgment on the pleadings may be directed by the court (Rule 34); 2. Where from the pleadings, affidavits, depositions and other papers, there is actually no genuine issue, the court may render a summary judgment (Rule 35); 3. Where the parties have entered into a compromise or an amicable settlement either during the pre-trial or while the trial is in progress (Rule 18; Art. 2028, NCC); 4. Where the complaint has been dismissed with prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; last. par., Sec. 5, Rule 7); 5. Where the case falls under the operation of the Rules on Summary Procedure (Rule 17); 6. Where, the parties agree in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If however, there is no agreement as to all the facts in the case, trial may be held only as to the disputed facts (1996 Bar Question). Q: Distinguish trial from hearing. A: A:
Trial Reception of evidence and other processes. The period for the introduction of evidence by both parties. Hearing Not confined in trial but embraces several stages of litigation, including the pretrial stage. Does not necessarily imply presentation of evidence in open court but the parties are afforded the opportunity to be heard.

A: When the issues are joined. Issues are joined when all the parties have placed their respective theories and the terms of the dispute are placed before the court. Q: What is the rule on notice of trial? A: Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial in such manner as shall ensure his receipt of that notice at least five (5) days before such date. (Sec.1, Rule 30) 1. ADJOURNMENTS AND POSTPONEMENTS Q: What is the rule on adjournment and postponement of trial? A: A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment, nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court. (Sec 2, Rule 30)
Note: A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier (Republic vs Sandiganbayan) A motion for continuance or postponement is not a matter of right but is addressed to the sound discretion of the court, and its action thereon will not be disturbed by the appellate courts in the absence of clear and manifest abuse of discretion resulting in the denial of substantial justice.

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

1. 2.

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

Q: What are the requisites of a motion to postpone trial for absence of evidence? A: Affidavit showing: a. The evidence is material or relevant

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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b. That due diligence has been used to procure it

Note: But the adverse party may avoid it by admitting the facts sought to be proven by the absent evidence, even if he objects or reserves the right to their admissibility. (Sec.3, Rule 30)

Plaintiff shall adduce evidence in support of his complaint Defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third party complaint

b. FOR ILLNESS OF PARTY OR COUNSEL Q: What are the requisites of a motion to postpone trial for illness of party or counsel? A: Affidavit showing: a. Presence of such party or counsel at the trial is indispensable; b. Character of illness is such as to render his non-attendance excusable 3. AGREED STATEMENT OF FACTS Q: Distinguish stipulation of facts in civil cases visa-vis criminal cases. A:
Civil Cases May be signed by the counsel alone who has a special power of attorney. May be made verbally or in writing. Criminal Cases Must be signed both by the counsel and the accused. Strict. It must always be in writing.

Third party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim and fourth-party complaint

Fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them

Parties against whom any counterclaim or crossclaim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court

Parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case

Q: What is the rule on stipulation of facts? A: The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe (Sec. 7, Rule 30) Note: Stipulation of facts is not permitted in actions for annulment of marriage and for legal separation. 4. ORDER OF TRIAL; REVERSAL OF ORDER Q: What is the procedure in trial? A: Subject to the provisions of Sec. 2, Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings
Note: If several defendants or third party defendants and so forth having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence (Sec. 5, Rule 30)

Q: When is a reverse order of trial allowed? A: Where the defendant, in his answer, relies upon an affirmative defense, a reverse order of trial shall take place. Since the defendant admits the plaintiffs claim but seeks to avoid liability based on his affirmative defense he shall proceed first to prove his exemption.

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

CIVIL PROCEDURE
5. CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL Q: Distinguish consolidation from severance. A:
Consolidation Involves several actions having a common question of law or fact which may be jointly tried (Sec.1, Rule 31). Severance Contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints, or issues which may be separately tried.

2.

If filed with the different branches of the same RTC and one of such cases has not been partially tried. (Raymundo v. Felipe, G.R. No. L-30887, Dec. 24, 1971)

Q: When may civil actions be suspended? A: 1. If willingness to discuss a possible compromise is expressed by one or both parties; or If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer (Sec. 8, Rule 30; Art. 2030, NCC).

2.

Q: What are the requisites for consolidation? A: 1. 2. Actions involving a common question of law or fact; and There must be at least 2 actions pending before the same court (Sec.1, Rule 31).

6. DELEGATION OF RECEPTION OF EVIDENCE Q: May the judge delegate the reception of evidence? A: GR: No. The judge shall personally receive and resolve the evidence to be adduced by the parties. XPN: The reception of evidence may be delegated to the Clerk of Court, under the following conditions: 1. The delegation may be made only in defaults or ex parte hearings, and in any case where the parties agree in writing; 2. The reception of evidence shall be made only by the clerk of that court who is a member of the bar; 3. Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits; and 4. He shall submit his report and transcripts of the proceedings, together with the objections to be resolved by the court, within 10 days from the termination of the hearing (Sec. 9, Rule 30). 7. TRIAL BY COMMISSIONERS

Q: What are the ways of consolidating cases? A:


Recasting the Cases Reshaping of the cases by amending the pleading, dismissing some cases and retaining only one case. There must be joinder of causes of action and of parties. Consolidation Proper It is a joint trial with joint decision, the cases retaining their original docket numbers. Test-Case Method By hearing only the principal case and suspending the hearing on the other cases until judgment has been rendered in the principal case. The cases retain their original docket numbers (Riano, Civil Procedure, p. 96, 2009 ed.).

Q: What is the rule on consolidation of cases? A: GR: Consolidation is discretionary upon the court to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, and simplify the work of the trial court and save unnecessary costs and expenses. XPNs: Consolidation becomes a matter of duty when: 1. If two or more cases are pending before the same judge; or

Q: Who is a commissioner? A: A person to whom a case pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered. Q: Distinguish delegation to clerk of court under Rule 30 from trial by commissioner under Rule 32.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A:
Delegation to Clerk of Court Delegation is made during trial. Clerk of court must be a lawyer. Clerk of court cannot rule on objections or on the admissibility of evidence. Trial by Commissioner Commissioner can be appointed even after the case has become final and executory. Commissioner need not be a lawyer. Commissioner can rule on objections or on admissibility of evidence.

b. POWERS OF THE COMMISSIONER Q: What are the powers of a commissioner? A: 1. 2. Power to regulate the proceedings in every hearing before him; Do all acts and take all measures necessary or proper for the efficient performance of his duties under the order of reference; Issue subpoenas ad testificandum and duces tecum; Swear witnesses; and Rule upon the admissibility of evidence (Sec.3, Rule 32).

3. 4. 5.

Q: What is the rule on trial by commissioner? A: GR: Discretionary upon the courts. XPNS: 1. 2. 3. 4.

Expropriation (Rule 67); Partition (Rule 69); Settlement of estate of a deceased person in case of contested claims; and Submission of accounting by executors or administrator.

Note: Requirement of hearing cannot be dispensed with as this is the essence of due process.

Q: What is the effect of failure of parties to appear before a commissioner? A: The commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment (Sec.6, Rule 32) c. COMMISSIONERS REPORT; NOTICE TO PARTIES AND HEARING ON THE REPORT Q: What is a commissioners report? A: Upon completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions or law in his report. He shall attach in his report all exhibits, affidavits, depositions, papers and the transcript, if any, of the evidence presented before him (Sec. 9).
Note: The commissioners report is not binding upon the court which is free to adopt, modify, or reject, in whole or in part, the report. The court may receive further evidence or recommit the report with instructions (Sec. 11, Rule 32; Baltazar vs. Limpin, 49 Phil. 39).

Note: An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be remedied. It can be waived by consent of the parties, express or implied.

a. REFERENCE BY CONSENT OR ORDERED ON MOTION Q: How may a case be referred to a commissioner? A: By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court (Sec. 1, Rule 32). Q: When may a case be referred to a commissioner if the consent of the parties are not given? A: 1. When the trial of an issue of fact requires the examination of a long account on either side; When the taking of an account is necessary for the information of the court before judgment; When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case; or For carrying a judgment or order into effect (Sec. 2, Rule 32).

2.

3.

Q: What is the rule on notice of filing of the report? A: Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (l0) days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon

4.

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

CIVIL PROCEDURE
grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. (Sec.10, Rule 32)
Note: GR: Notice of the filing of the report must be sent to the parties for the purpose of giving them an opportunity to present their objections (Santos vs. Guzman, 45 Phil. 646). The failure to grant the parties, in due form, this opportunity to object, may, in some instances, constitute a serious error in violation of their substantial rights (Govt. vs. Osorio, 50 Phil. 864). XPN: The rule, however, is not absolute. In Manila Trading and Supply Co. vs. Phil. Labor Union, 71 Phil. 539, it was ruled that although the parties were not notified of the filing of the commissioners reports, and the court failed to set said report for hearing, if the parties who appeared before the commissioner were duly represented by counsel and given an opportunity to be heard, the requirement of due process has been satisfied, and a decision on the basis of such report, with the other evidence of the case is a decision which meets the requirements of fair and open hearing.

appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (Sec.1, Rule 33) Q: What is the effect of filing of demurrer to evidence? A:
Motion Granted but Reversed on Appeal Movant shall have the Movant is deemed to have right to present his waived his right to present evidence evidence. The decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence. Denial is interlocutory, hence, not appealable. Order of the court is an Sec. 1, Rule 36 (that adjudication on the merits. judgment should state Hence, the requirement in clearly and distinctly the Sec. 1, Rule 36 should be facts and the law on which complied with. it is based), will not apply. Motion Denied Note: A demurrer to evidence under Rule 33 is in effect, a motion to dismiss but is not the same as what is described in Rule 16.

Q: What should be heard commissioners report hearing?

during

the

A: In the hearing to be conducted on the commissioners report, the court will review only so much as may be drawn in question by proper objections. It is not expected to rehear the case upon the entire record (Kreidt vs. McCullough and Co., 37 Phi. 474).

Q: Distinguish a demurrer to evidence from a motion to dismiss. A:


Motion to Dismiss (Rule 16) Before filing of answer Demurrer to Evidence (Rule 33) After the plaintiff rests its case or after the completion of the presentation of evidence That upon the facts and the law, the plaintiff has shown no right to relief

N. DEMURRER TO EVIDENCE Q: What is demurrer to evidence? A: It is a motion to dismiss based on the ground of insufficiency of evidence and is presented after the plaintiff rests his case (Regalado, Vol. I, p. 391, 2005 ed.). The aim of this rule is to discourage prolonged litigation.
Note: There is only a one side trial, i.e. it is only the plaintiff who has presented evidence. When to file

Grounds

The 10 grounds enumerated in Rule 16

Q: When may a party to the case move for dismissal based on insufficiency of evidence? A: After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on

If denied

If granted

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

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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: ABS Co. is the operator of several buses. One of the buses owned by ABS Co. rammed with a dump truck causing the instantaneous death of Nilo, one of the passengers of the ill-fated bus. Consequently, Nestor, son of Nilo, filed a complaint against ABS Co. for damages. After Nestor had rested his case, ABS Co. filed a demurrer to evidence, contending that Nestor's evidence is insufficient because it did not show (1) that ABS Co. was negligent and (2) that such negligence was the proximate cause of the collision. Should the court grant or deny defendant's demurrer to evidence? Reason briefly. A: No, the court should not grant defendants demurrer to evidence. Under the Rules of Court, after the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Here, Nestor has shown that he is entitled to the relief he is asking for. ABS Co. is a common carrier. Under Article 1756 of the Civil Code, in case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence. Proof that the defendant was negligent and that such negligence was the proximate cause of the collision is not required. Thus, without proof that ABS Co. has exercised extraordinary diligence, the presumption of negligence stands. (2004 Bar Question) Q: What is judgment on demurrer to evidence? A: It is a judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief. 1. GROUND Q: On what ground may the demurrer to evidence be filed? A: The only ground for demurrer to evidence is that the plaintiff has no right to relief. 2. EFFECT OF DENIAL Q: What is the effect of denial of demurrer to evidence? A: 1. 2. 3. The defendant shall have the right to present his evidence (Sec. 1, Rule 33) The court shall set the date for the reception of the defendants evidence. An order denying a demurrer to evidence not appealable (because it is interlocutory) XPN: It can be subject to petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority. The right to present evidence after denial of demurrer to evidence does not apply to election cases. 3. EFFECT OF GRANT Q: What is the effect of granting the demurrer to evidence? A: 1. The case shall be dismissed.
Note: The plaintiff may file an appeal and if that appeal was granted, the defendant loses his right to present evidence. (Sec.1, Rule 33)

4.

2.

Upon appeal, the appellate court reversing the order granting the demurrer should not remand the case to the trial court. Instead, it should render judgment based on the evidence submitted by the plaintiff. (Radiowealth Finance Corporation vs Del Rosario, 335 SCRA 288) The demurrer to evidence abbreviates judicial proceedings.

3.

4. WAIVER OF RIGHT TO PRESENT EVIDENCE Q: When is there a waiver of right to present evidence? A: If the demurrer is granted but on appeal the order of dismissal is reversed, the defendant is deemed to have waived his right to present evidence (Sec.1, Rule 33)

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

CIVIL PROCEDURE
5. DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO EVIDENCE IN A CRIMINAL CASE Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases. A:
Leave of court If granted Civil Case Not required The Plaintiff may appeal from the order of dismissal of the case The Defendant may proceed to adduce his evidence If denied Criminal Case With or Without The Plaintiff cannot make an appeal from the order of dismissal due to the constitutional prohibition against double jeopardy The Defendant may adduce his evidence only if the demurrer is filed with leave of court. If there was no leave of court, accused can no longer present his evidence and submits the case for decision based on the prosecutions evidence If the court finds plaintiffs evidence insufficient, it will grant the demurrer by dismissing the complaint. The judgment of dismissal is appealable by the plaintiff. If plaintiff appeals and judgment is reversed by the appellate court, it will decide the case on the basis of the plaintiffs evidence with the consequence that the defendant already loses his right to present evidence. No res judicata in dismissal due to demurrer The plaintiff files a motion to deny motion to demurrer to evidence.

If the plaintiff appeals from the order of dismissal

If the court finds the prosecutions evidence insufficient, it will grant the demurrer by rendering judgment acquitting the accused. Judgment of acquittal is not appealable; double jeopardy sets in

How can demurrer be denied?

The court may motu proprio deny the motion.

O. JUDGMENTS AND FINAL ORDERS Q: What is a judgment? A: It is a final consideration and determination by a court of the rights of the parties, upon matters submitted to it in an action or proceeding. Q: What are the kinds of judgment? A: 1. Judgment upon compromise It is one conferred on the basis of a compromise agreement entered into between the parties. Judgment by confession It is one rendered by the court when a party expressly agrees to the other partys claim or acknowledges the validity of the claim against him. Judgment upon the merits It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. Clarificatory judgment It is rendered to clarify an ambiguous judgment or one difficult to comply with.

5.

6.

2.

7.

8.

3.

4.

9.

Judgment nunc pro tunc (Now for then) A judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. Its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to make the record speak the truth, without any changes in substance or any material respect. Judgment sin perjuicio Judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. This is not allowed. Judgment by default (Sec. 3, Rule 9) Rendered by the court following a default order or after it received, ex parte, plaintiffs evidence. Judgment on the pleadings (Rule 34) Proper when an answer fails to tender an issue because of a general or insufficient denial of the material allegations of the complaint or when the answer admits the material allegations of the adverse party's pleading. Summary judgment (Rule 35) One granted by the court for the prompt

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. Several judgment (Sec. 4, Rule 36) It is one rendered by a court against one or more defendants and not against all of them, leaving the action to proceed against the others. Separate judgment (Sec. 5, Rule 36) It is one rendered disposing of a claim among several others presented in a case, after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of said claim. Special judgment (Sec. 11, Rule 39) One which can only be complied with by the judgment obligor because of his personal qualifications or circumstances or one that requires the performance of an act other than: a. Payment of money; and b. Sale of real and personal property. Judgment for specific acts (Sec. 10, Rule 39) Applicable in cases of: 1. Conveyance, delivery of deeds, or other specific acts, vesting title; 2. Sale of real or personal property; 3. Delivery or restitution of real property; 4. Removal of improvements on property subject of execution; or 5. Delivery of personal property. Judgment on demurrer to evidence (Rule 33) A judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief. Conditional judgment It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. Final judgment One which disposes of the whole subject matter or terminates the particular proceedings or action, leaving nothing to be done by the court but to enforce by execution what has been determined. A: 1. Resolutions of Supreme Court denying the petitions to review decisions of Court of Appeals. Minute Resolutions if issued by SC denying or dismissing a petition or a motion for reconsideration for lack of merit, it is understood that the challenged decision or order is deemed sustained. Interlocutory Orders those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. E.g. Order denying a motion to dismiss, granting an extension of time or authorizing an amendment.
Note: Appeal is not proper to question an interlocutory order. The proper remedy to question an interlocutory order is a petition for certiorari under Rule 65.

10.

2.

11.

3.

12.

1. JUDGMENT WITHOUT TRIAL Q: What is a judgment without trial? A: The theory of summary judgment is that although an answer may on its face appear to tender issuesrequiring trialyet if it is demonstrated by affidavits, depositions, or admissions that those issues are not genuine, but sham or fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for plaintiff. The court is expected to act chiefly on the basis of the affidavits, depositions, admissions submitted by the movants, and those of the other party in opposition thereto. The hearing contemplated (with 10-day notice) is for the purpose of determining whether the issues are genuine or not, not to receive evidence on the issues set up in the pleadings. A hearing is not thus de riguer. The matter may be resolved, and usually is, on the basis of affidavits, depositions, admissions. Under the circumstances of the case, a hearing would serve no purpose, and clearly unnecessary. The summary judgment here was justified, considering the absence of opposing affidavits to contradict the affidavits (Galicia vs. Polo, L-49668, Nov. 14, 1989; Carcon Devt. Corp. vs. CA, GR 88218, Dec. 17, 1989). 2. CONTENTS OF A JUDGMENT Q: What are the two parts of a judgment? A: 1. 2. Ratio decidendi the body of judgment Fallo The dispositive portion of the judgment. It is also the part of judgment that is subject to execution because this is

13.

14.

15.

16.

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

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

CIVIL PROCEDURE
the judgment of the court itself, i.e. if the petition is granted or denied and the relief granted. Q: How should a conflict between the parts of a decision be resolved? GR: If there is a conflict between the ratio decidendi and the fallo, the fallo should prevail. Reason: the fallo is the final order while the ratio decidendi is merely a statement ordering nothing. XPN: If there is a mere mistake in the fallo and the the ratio decidendi is so clear that it states a conclusion, the latter should prevail. (Poland Industrial Limited vs. National Development Company, 467 SCRA 500) Q: What are the requisites of a valid judgment? A: 1. 2. 3. 4. 5. Authority of the court to hear and determine the case. Jurisdiction over the parties and the subject matter The parties must have been given an opportunity to adduce evidence. The evidence must have been considered by the tribunal in deciding the case. The judgment must be in writing, personally and directly prepared by the judge. The judgment must state clearly the facts and the law on which it is based, signed by the judge and filed with the clerk of court.
NOTE: Only for decisions and final orders on merits and does not apply to those resolved through incidental matters. Note: in the above cases, the material facts alleged in the complaint shall always be proved (Sec. 1, Rule 34)

4. SUMMARY JUDGMENTS Q: What is a summary judgment? A: A summary judgment or accelerated judgment is a procedural technique to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record, of for weeding out sham claims or defenses at an early stage of the litigation to avoid the expense and loss of time involved in a trial. Its object is to separate what is formal or pretended denial or averment from what is genuine and substantial so that only the latter may subject a party-in-interest to the burden of trial. Moreover, said summary judgment must be premised on the absence of any other triable genuine issues of fact. Otherwise, the movants cannot be allowed to obtain immediate relief. A genuine issue is such issue of fact which requires presentation of evidence as distinguished from a sham, fictitious, contrived or false claim (Monterey Foods Corp. vs. Eserjose, GR 153126, Sept. 11, 2003). Q: What are judgments? A: 1. There must be no genuine issue as to any material fact, except for the amount of damages; and The party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. a. FOR THE CLAIMANT Q: When is a claimant allowed to file for summary judgment? A: A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof (Sec. 1, Rule 35). b. FOR THE DEFENDANT Q: When is a defendant allowed to file for summary judgment? A: A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting the requisites of summary

6.

2.

3. JUDGMENT ON THE PLEADINGS Q: When is there a judgment based on pleadings? A: Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse partys pleading, the court may, on motion of that party, direct judgment on such pleading.
Note: Judgment must be on motion of the claimant. It cannot be rendered by the court motu proprio.

Q: What are cases where judgment on the pleadings will not apply? A: 1. 2. 3. Actions for the declaration of nullity of a marriage Actions for annulment of marriage Actions for legal separation

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof (Sec. 2, Rule 35). c. WHEN THE CASE NOT FULLY ADJUDICATED A: Q: What happens when a case is not fully adjudicated? A: If on motion, judgment is not rendered upon the whole case of for all the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly (Sec. 4, Rule 35). 1. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Sec. 5, Rule 35). Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to the Rules are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including attorneys fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt (Sec. 6, Rule 35). d. AFFIDAVITS AND ATTACHMENTS Q: What are the rules on affidavits and attachments on summary judgments?

2.

5. JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS


Judgment on the pleadings Answer does not tender an issue Summary judgments There is an issue tendered in the answer, but it is not genuine or real issue as may be shown by affidavits and depositions that there is no real issue and that the party is entitled to judgment as a matter of right Opposing party is given 10 days notice May only be partial Either the plaintiff or the defendant may file it

Answer

Notice Termination Who can file

Basis of the judgment

Movants must give a 3-day notice of hearing Entire case may be terminated Only the plaintiff or the defendants as far as the counterclaim, cross-claim or third-party complaint is concerned can file the same Based only on the pleadings alone, hence, only on the complaint and the answer

Based on the pleadings, affidavits, depositions, and admissions

6. RENDITION OF JUDGMENTS AND FINAL ORDERS Q: What is a rendition of judgment? A: Rendition of judgment is the filing of the same with the clerk of court. It is not the pronouncement of the judgment in open court that constitutes the rendition. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court (Ago vs.

CA, 6 SCRA 530). It is not the writing of the judgment or its signing which constitutes rendition of the judgment (Castro vs. Malazo, 99 SCRA 164). Q: How should a judgment be prepared? A: A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court (Sec. 1, Rule 36).

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

CIVIL PROCEDURE
its periods, not more than six (6) months from the entry of the judgment or final order (Sec. 3, Rule 38).

7. ENTRY OF JUDGMENT AND FINAL ORDER Q: What is an entry of judgment? A: The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment and after the same has become final and executory. The record shall contain the dispositive portion of the judgment or final order and shall be signed by the clerk of court, with a certificate by said clerk that the judgment has already become final and executory (Sec. 2, Rule 36). Q: What happens if no appeal was filed on time? A: If no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. (Sec. 2, Rule 36)
Note: There are some proceedings the filing of which is reckoned from the date of the entry of judgment: (a) the execution of a judgment by motion is within five (5) years from the entry of the judgment (Sec. 6, Rule 39); (b) the filing of a petition for relief has, as one of

P. POST JUDGMENT REMEDIES Q: What are the available remedies to the aggrieved party after rendition of judgment? A: The remedies against a judgment may refer to those remedies before a judgment becomes final and executory and those remedies after the same becomes executory. 1. Before a judgment becomes final and executory, the aggrieved party may avail of the following remedies: a. Motion for Reconsideration; b. Motion for New Trial; and c. Appeal 2. After the judgment becomes executory, the losing party may avail of the following: a. Petition for relief from judgment; b. Action to annul judgment; c. Certiorari; and d. Collateral attack of a judgment.

1. MOTION FOR NEW TRIAL OR RECONSIDERATION a. GROUNDS b. WHEN TO FILE Q: Distinguish motion for new trial from motion for reconsideration. A:
MOTION FOR NEW TRIAL Grounds 1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) which ordinary prudence could not have guarded against and by reason of which the rights of the aggrieved party was impaired; or 2. Newly discovered evidence, which could not with reasonable diligence, have been discovered and produced at the trial, and which if presented, would probably alter the result (Sec. 1, Rule 37). Requisites 1. Must be in writing; 2. Affidavit of the existence of FAME and newly discovered evidence; Note: Whenever a remedy is allowed on the ground of FAME, an affidavit of merit is obligatory. 3. Affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action; 4. In case of newly discovered evidence: a. Affidavit of new witnesses; and b. Duly authenticated documents to be introduced. 1. 2. 3. MOTION FOR RECONSIDERATION The damages awarded are excessive; The evidence is insufficient to satisfy the decision or final order; or The decisionor final order is contrary to law (Sec. 1, Rule 37). Must point out specifically the conclusion of judgment; Express reference to testimonial or documentary evidence or to provisions of law.

1. 2.

Both shall be made in writing stating the ground / grounds therefor, a written notice of which shall be served by the movant on the adverse party. (Sec. 2, Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15. The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere scrap of paper and will not toll the reglementary period for appeal. When to file
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A motion for new trial or reconsideration should be filed within the period for taking an appeal. Hence, it must be filed before the finality of the judgment (Sec. 1, Rule 37). No motion for extension of time to file a motion for reconsideration shall be allowed. In DistilleriaLimtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is within the period for taking an appeal. Note: The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40). Second motion may be allowed so long as based on grounds not existing or available at the time the first motion was made. (Sec. 5, Rule 37) Single motion rule (applicable only on a judgment or final order but not to interlocutory order) (Sec. 5, Rule 37) No new trial or hearing will take place and the judgment will be based on the pleadings submitted by the parties. If granted, the court may amend such judgment or final order accordingly (Sec. 3, Rule 37).

If granted, the original judgment or final order shall be vacated, and the action shall stand for trial de novo. The recorded evidence taken upon the former trial, insofar as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6, Rule 37).

Note: The amended judgment is in the nature of a new judgment which supersedes the original judgment. If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37). Available against judgments or final orders of both the trial and appellate courts.

Available even on appeal but only on the ground of newly discovered evidence.

Both must be resolved within 30 days from the time it is submitted for resolution Both are prohibited motions under Summary Procedure

COMMON PROVISIONS Q: What is the period to file motion for new trial or reconsideration? A: Within the period for taking an appeal or within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order (Section 1, Rule 40).
Note: No extension of time to file a Motion for New Trial or Motion for Reconsideration shall be allowed.

c. DENIAL OF THE MOTION; EFFECT Q: What is the effect if the MNT or MR is denied? A: The movant has a fresh period of 15 days from the receipt or notice of the order denying or dismissing the motion within which to file a notice of appeal (fresh period rule). (Neypes v. CA, G.R. No.141524, Sept. 14, 2005) d. GRANT OF THE MOTION; EFFECT Q: What is the effect of a grant of the motion? A: If a new trial be granted in accordance with the provisions of the rules, the original judgment shall be vacated or set aside, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6). The filing of the motion for new trial or reconsideration interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41). If the court grants the motion (e.g., it finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law), it may amend such judgment or final order

Q: When is a record of appeal required? A: A record of appeal is required only in: 1. Special proceedings; 2. Other cases of multiple or separate appeal (Section 3, Rule 40) Q: What is the effect of filing a MNT/ MR on the period to appeal? A: The filing of a timely motion interrupts the period to appeal (Section 2, Rule 40; Section 3, Rule 41).

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

CIVIL PROCEDURE
accordingly (Sec. 3). The amended judgment is in the nature of a new judgment which supersedes the original judgment. It is not a mere supplemental decision which does not supplant the original but only serves to add something to it (Esquivel vs. Alegre, 172 SCRA 315). If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less that all of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7). e. REMEDY WHEN MOTION IS DENIED, FRESH 15DAY PERIOD RULE Q: What is the remedy if the motion is denied? A: The remedy is to appeal from the judgment or final order itself subject of the motion for reconsideration or new trial (Sec. 9, Rule 37, Rules of Court). The movant has a fresh period of fifteen days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal. It is no longer assailable by certiorari. (Sec.9, Rule 37, A.M. No. 077-12-SC). Q: When does the fresh period rule apply? A: It applies to: 1. Rule 40 MTC to RTC 2. Rule 41 Appeals from RTC 3. Rule 42 Petition for Review from RTC to CA 4. Rule 43 Appeals from quasi-judicial agencies to CA 5. Rule 45 Appeals by certiorari to the SC
Note: The fresh period rule does not refer to the period within which to appeal from the order denying the motion for reconsideration, but to the period within which to appeal from the judgment itself because an order denying a motion for reconsideration is not appealable.

Q: What happens if the motion is filed without the required affidavits? A: Non- compliance with the requirements of the Rules would reduce the motion to a mere proforma motion.
Note: Under Sec. 2,Rule 37 a pro- forma motion shall not toll the reglementary period of appeal.

Q: What is a pro- forma motion? A: A pro- forma motion is one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings (Marikina Development Corporation v. Flojo, 251 SCRA 87). MOTION FOR NEW TRIAL Q: What is a Motion for New Trial? A: It is a motion for the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory, whereby errors of law or irregularities are expunged from the record or new evidence is introduced, or both steps are taken. Q: What are the requisites of newly discovered evidence as a ground for New Trial? A: 1. 2. The evidence was discovered after trial; Such evidence could not have been discovered and produced at the trial with reasonable diligence; and Such evidence is material, not merely cumulative, corrobative or impeaching, and is of such weight that if admitted would probably change the judgment (BERRY RULE) (CIR v. A. Soriano Corporation, GR No. 113703 January 31, 1997).

3.

Q: When should the motion be resolved? A: The motion shall be resolved within 30 days from the time it is submitted for resolution (Section 4, Rule 37). Q: Is a MNT/ MR a prerequisite for taking an appeal or petition for review? A: A final MNT/ MR is not a prerequisite to an appeal, a petition for review or petition for review on certiorari. And since the purpose is to expedite the final disposition of cases, a strict or prospective application of said ruling is in order (Habaluyas v. Japson, GR No. 70895, May 30, 1986).

Q: Distinguish Newly Discovered Evidence from Forgotten Evidence. A:


NEWLY DISCOVERED EVIDENCE Evidence was not available to a party during a trial, and was discovered only thereafter. FORGOTTEN EVIDENCE Evidence was already available to a party and was not presented through inadvertence or negligence of the counsel; it is not a ground for new trial.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A: The purpose of a motion for reconsideration is precisely to request the court or the quasi- judicial body to take a second look at its earlier judgment and correct any errors it may have committed therein (Reyes v. Pearlbank Securities, GR No. 171435, July 30, 2008). Q: Is a second motion for reconsideration allowed? A: A second motion for reconsideration is not allowed. The prohibition on a second motion applies only when the motion is directed against a judgment or a final order. The rule does not apply to a motion for reconsideration of an interlocutory order. Q: When may there be partial reconsideration?
MOTION FOR REOPENING OF TRIAL The judge may act motu propio May properly be presented only after either or both parties have formally offered and closed their evidence before judgment Controlled by no other than the paramount interest of justice, resting entirely on the sound discretion of the court, the exercise of such shall not be reviewable on appeal UNLESS a clear abuse thereof is shown.

Q: Distinguish extrinsic fraud from intrinsic fraud. A:


EXTRINSIC FRAUD Connotes any fraudulent scheme executed by the prevailing party outside trial against the losing party who because of such fraud was prevented from presenting his side of the case INTRINSIC FRAUD Refers to the acts of party during trial which does not affect the presentation of the case

Q: Distinguish Motion for New Trial from Motion for Reopening of the Trial. A:
MOTION FOR NEW TRIAL A motion must be filed Proper only after promulgation of judgment Based upon specific grounds mentioned in Sec. 37 in civil cases and Sec. 121 in criminal cases

A: If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7, Rule 37). Q: In a case filed by Pedro against Juan, the latter received the adverse decision of the RTC on March 1, 2008. On March 14, 2008, Juan filed a motion for reconsideration. Juan received the decision of the trial court dismissing his motion on April 1, 2008. When should Juan file his notice of appeal to the CA? A: Juan has 15 days from the receipt of the decision of the trial court denying his motion for reconsideration to file his notice of appeal. To standardize the appeal periods provided in the Rules of Court and to afford litigants fair opportunity to appeal their cases, the SC deemed it practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. Sec. 3, Rule 41 of the 1997 Rules of Civil Procedure states that the appeal shall be taken within 15 days from notice of judgment or final order appealed from. The order denying the motion for new trial or reconsideration is the final order (Fresh period rule) (Neypes v. CA, G.R. No. 141524, Sept. 14, 2005). 2. APPEALS IN GENERAL Q: Is the right to appeal part of due process?

Q: Is a second motion for new trial allowed? A: Yes. A second motion for new trial is authorized by the Rules. A motion for new trial shall include all grounds then available. Those not so included are deemed waived. However, when a ground for a new trial was not existing or available when the first motion was made, a second motion for new trial may be filed within the period allowed but excluding the time during which the first motion had been (Section 5, Rule 37) MOTION FOR RECONSIDERATION Q: What is a motion for reconsideration? A: A motion for reconsideration under Rule 37 is one that is directed against a judgment or a final order. It is not the motion for reconsideration of an interlocutory order which for instance precedes a petition for certiorari. Q: What is the purpose of a MR?

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

CIVIL PROCEDURE
A: The right to appeal is not part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law (Stolt- Nielsen v. NLRC, GR No. 147623, December 13, 2005). Q: What are the basic guidelines as regards appeal? A: a. No trial de novo shall be made. The appellate courts must decide the case on the basis of the record, except when the proceedings were not duly recorded as when there was absence of a qualified stenographer (Sec. 22[d], BO 129; Rule 21[d], Interim Rules); b. There can be no new parties; c. There can be no change of theory (Naval vs. CA, 483 SCRA 102); d. There can be no new matters (Ondap vs. Aubga, 88 SCRA 610); e. There can be amendments of pleadings to conform to the evidence submitted before the trial court (Dayao vs. Shell, 97 SCRA 407); f. The liability of solidarity defendant who did not appeal is not affected by appeal of solidarity debtor (Mun. of Orion vs. Concha, 50 Phil. 679); g. Appeal by guarantor does not inure to the principal (Luzon Metal vs. Manila Underwriter, 29 SCRA 184); h. In ejectment cases, the RTC cannot award to the appellant on his counterclaim more than the amount of damages beyond the jurisdiction of the MTC (Agustin vs. Bataclan, 135 SCRA 342); i. The appellate court cannot dismiss the appealed case for failure to prosecute because the case must be decided on the basis of the record (Rule 21, Interim Rules). Q: Distinguish Notice of Appeal from Record on Appeal? A:
NOTICE OF APPEAL Deemed perfected as to him upon the filing of the notice of appeal. If decision is made by the courts of 1st level, notice of appeal need not state the court to which the appeal is being taken (Sec.3, Rule 40) because there is only one court to which it shall be made RTC If decision is made by the RECORD ON APPEAL Required only in Special Proceedings and other cases of multiple or separate appeals. Deemed perfected as to him with respect to the subject matter thereof upon its approval. (30 days is the period for filing, only the court may approve the record on RTC in its original jurisdiction, notice of appeal to the RTC must disclose where appeal is to be taken. (Sec 5, rule 41) Period available is 15 days before the judgment becomes final and executor appeal beyond that period)

If required, the appellant has 30 days to file and serve both notice and record on appeal. Should indicate: If required, copies of 1.Parties to the appeal; both the notice of 2.Judgment or final order or appeal and the record part thereof appealed from; on appeal shall be filed 3.Material dates showing the In court and served to timeliness of the appeal the adverse party.

Q: What are those cases which allow multiple appeals? A: The civil cases which admit of multiple appeals are: 1. Actions for recovery of property with accounting; 2. Actions for partition of property with accounting; 3. Special civil actions of eminent domain and foreclosure of mortgage; and 4. Special proceedings. Q: What is the rationale for allowing multiple appeals? A: To enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final (Roman Catholic Archbishop of Manila v. CA, GR No. 111324, July 5, 1996). a. JUDGMENT AND FINAL ORDERS SUBJECT TO APPEAL Q: What kind of judgments and final orders are subject to appeal? A: An appeal may be taken only from judgments or final orders that completely dispose of the case (Sec.1, Rule 41). An interlocutory order is not appealable until after the rendition of the judgment on the merits. b. MATTERS NOT APPEALABLE Q: What cases are not appealable? A: 1. Order denying a petition for relief or any similar motion seeking relief from judgment; 2. Interlocutory order;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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3. Order disallowing or dismissing an appeal; 4. Order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; 5. Order of execution; 6. Judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and 7. Order dismissing an action without prejudice (Sec. 1 as amended by A.M. No. 07-7-12-SC).
Note: The order denying a motion for new trial or reconsideration has been deleted from the list by virtue of A.M. No. 07-7-12-SC.

Q: Can the court consider errors not raised in the assignment of errors? A: GR: No. The court as a rule shall not consider errors not raised in the assignment of errors XPN: Sec. 5, Rule 51 precludes its absolute application. The court may consider an error not raised on appeal provided the same falls within any of the following categories: a. b. c. d. It is an error that affects the jurisdiction over the subject matter; It is an error that affects the validity of the judgment appealed from; It is an error which affects the proceedings; It is an error closely related to or dependent on an assigned error and properly argued in the brief; or It is a plain and clerical error.

Q: Can a question that was never raised in the courts below be allowed to be raised for the first time on appeal? A: GR: No. A question that was never raised in the courts below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair play, justice and due process (Bank of Commerce vs. Serrano, 451 SCRA 484). For an appellate court to consider a legal question, it should have been raised in the court below (PNOC vs. CA, 457 SCRA 32). It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. it is true that this rule admits of exceptions as in cases of lack of jurisdiction, where the lower court committed plain error, where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy (Baluyot vs. Poblete, GR 144435, Feb. 6, 2007). XPNs: The rule admits of exceptions as in cases of: a. Lack of jurisdiction; b. Where the lower court committed plain error; c. Where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy (Baluyot v. Poblete GR No. 144435, February 6, 2007).

e.

Q: What is the basis of the courts power to rule on such issues not raised on appeal? A: The court is imbued with sufficient authority and discretion to review matters, not otherwise assigned as errors on appeal, as it finds that the consideration is necessary in arriving at a complete and just resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice (Asian Terminals, Inc. v.NLRC, 541 SCRA 105, 2007). c. REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE NOT APPEALABLE Q: What is the remedy in cases where appeal is not allowed? A: GR: In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65 (Sec. 1 Rule 41). XPN: An order denying a motion for new trial or a motion for reconsideration may no longer be assailed by way of Rule 65 as per A.M. No. 07- 712, the proper ground is to appeal from the judgment (Sec. 9, Rule 37). d. MODES OF APPEAL Q: What are the different modes of appeal? A: 1. Ordinary appeal (Rule 40 and 41)

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

CIVIL PROCEDURE
a. b. Notice on appeal Record on appeal 2. 3. Petition for review (Rule 42, 43) Appeal by certiorari(Rule 45)

Q: Distinguish the following modes of appeal. A:


MODE OF APPEAL PERIOD OF APPEAL PERIOD OF APPEAL IF A MR OR MNT WAS FILED (Neypes Doctrine) ISSUES THAT MAY BE RAISED

Ordinary Appeal (MTC to RTC) Rule 40 a. Notice of Appeal

Within 15 days after notice to the appellant of the judgment or final order appealed (Sec 2. Rule 40). Within 30 days after notice of the judgment or final order (Sec 2. Rule 40).

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

Questions of fact or mixed questions of fact and law.

b.

Record of Appeal

Ordinary Appeal (RTC to CA) Original Jurisdiction Rule 41 a. Notice of Appeal

Within 15 days after notice to the appellant of the judgment or final order appealed (Sec 3. Rule 41). Within 30 days after notice of the judgment or final order (Sec 3. Rule 41). Note: appeal in habeas corpus cases shall be taken within 48 hours from notice of the judgment or final order appealed from (AM No. 01-1-03-SC, June 19, 2001) Within 15 days from notice of the decision to be reviewed or from the denial of a MR or new trial (Sec. 1 Rule 42). Note: The court may grant an additional period of 15 days provided the extension is sought: a. Upon proper motion; and b. Upon payment of the full amount of the docket and other lawful fees before the expiration of the reglementary period. Within 15 days from receipt of judgment or final order or of last publication (Sec. 4, Rule 43).

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

b.

Record of Appeal

Questions of fact or of law or mixed question of fact and law that has been raised in the court below and is within the issues framed by the parties (Sec. 15, Rule 44).

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

Questions of fact, of law, or mixed questions of fact and law Within 15 days from receipt of the order denying motion for reconsideration or new trial.

Petition for Review (QuasiJudicial Bodies to CA) Rule 43

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

Questions of fact, of law, or mixed questions of fact and law (Sec. 3, Rule 43). Note: The appeal shall not stay the award, judgment, final order unless the CA directs otherwise (Sec. 12, Rule 43).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Petition for Review on Certiorari Rule 45 1. RTC to SC (Sec 2c, Rule 41); 2. CA to SC (Sec. 1, Rule 45); 3. Sandiganbayan to SC (Sec. 1, Rule 45); 4. CTA en banc to SC (Sec. 11, RA 9282; Sec. 1 Rule 45 as amended by AM No. 07- 7-12- SC); 5. Appeals from a judgment or final order in a petition for a writ of amparo to the SC (AM No. 07-9-12- SC); and 6. Appeals from a judgment or final order in a petition for a writ of Habeas Data (AM No. 08-116-SC). Within 15 days from notice of the judgment, final order or resolution appealed from, or within 15 days from notice of the denial of the petitioners motion for new trial or motion for reconsideration filed in due time (Sec. 2, Rule 45). Note: The SC may for justifiable reason grant an extension of 30 days only within which to file the petition provided: a. There is a motion for extension of time duly filed and served; b. There is full payment of the docket and other lawful fees and the deposit for costs; and c. The motion is filed and served and the payment is made before the expiration of the reglementary period (Sec. 2, Rule 45). Within 15 days from receipt of the order denying motion for reconsideration or new trial

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

Note: This fresh period rule applies Rule 40,41,42,43, and 45. Accordingly, this rule was adopted to standardize the appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of judgment. Obviously, the new 15 day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41. (Neypes vs. CA, GR 141524, Sept. 14, 2005)

BEFORE FINALITY OF JUDGMENT (1) ORDINARY APPEAL (2) PETITION FOR REVIEW (3) PETITION FOR REVIEW ON CERTIORARI Q: Distinguish an ordinary appeal from a petition for review. A:
Ordinary Appeal A matter of right All the records are elevated from the court of origin Notice or record on appeal is filed with the court of origin As to duration of residual powers: Until the records are transmitted to the appellate court. Petition for Review Discretionary No records are elevated unless the court decrees it Filed with the CA As to duration of residual powers: Until the CA gives due course to the petition.

Q: Distinguish Rule 45, Rule 64 and Rule 65. A:


Appeal by Certiorari(Rule 45) Review of Judgments, Final Orders or Resolutions (Rule 64) Petition is based on questions of law. It is a mode of appeal but the petition used is Rule 65. Petition for Certiorari(Rule 65) Petition is based on questions of jurisdiction, that is, whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion. It is a mode of review.

Petition is based only on questions of law.

It is a mode of appeal.

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

CIVIL PROCEDURE
Involves review of judgments, final orders or resolutions of COMELEC and COA.
Note: CSC judgments, final orders or resolutions are governed by Rule 43

Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts on the merits Filed within 15 days from notice of judgment, final order or resolution appealed from. Stays the judgment or order appealed from The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded.

May be directed against an interlocutory order of a court or where there is no appeal or any other plain, speedy or adequate remedy. Filed not later than 60 days from notice of judgment, order or resolution appealed from. Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding The judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action. Motion for reconsideration or for new trial is required. If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 02-03-SC) Court exercises original jurisdiction. Filed with the RTC, CA, Sandiganbayan or COMELEC. (1991, 1998, 1999 Bar Question)

Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed. Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just. The COMELEC and COA shall be public respondents who are impleaded in the action.

Motion for reconsideration is not required.

The filing of MNT or MR, if allowed under the procedural rules of the Commission, shall interrupt period fixed. The court is in the exercise of its appellate jurisdiction and power of review. Filed with the SC.

The court is in the exercise of its appellate jurisdiction and power of review. Filed with the SC.

e. ISSUES TO BE RAISED ON APPEAL Q: What issues are to be considered in appeal?

Procedure: A Restatement for the Bar, pp. 445-446, 2009 ed.) f. PERIOD OF APPEAL

A: GR: Only errors assigned in the brief may be considered on appeal XPNs: 1. Grounds not assigned as errors but affecting the jurisdiction over the subject matter 2. Matters not assigned as errors on appeal but are evidently plain or clerical errors within the contemplation of law; 3. Matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interest of justice or to avoid dispensing piecemeal justice; 4. Matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; 5. Matters not assigned as errors on appeal but closely related to an error assigned; and 6. Matters not assigned as errors on appeal but upon which the determination of a question properly assigned is dependent. (Riano, Civil

Q: What is the period to appeal? A: Within 15 days from notice of the judgment or final order appealed from. Where record on appeal is required: Within 30 days from notice of the judgment or final order. In habeas corpus cases, 48 hours from notice of judgment or final order appealed from.
Note: Where both parties are appellants, they may file a joint record on appeal (Sec. 8, Rule 41). The period shall be interrupted by a timely Motion for New Trial or Motion for Reconsideration.

Q: May a period of appeal be extended? A: Yes, under the sound discretion of the court. The mere filing of the motion for extension of time to perfect the appeal does not suspend the running of the reglementary period. Q: What is the effect if the extension of the period to appeal is granted/denied?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A: If granted, and the notice thereof is served AFTER the expiration of the period to appeal, the extension must be computed from the date of notice.
Note: If no action is taken on the motion for extension, or if it is denied after the lapse of the period to appeal, THE RIGHT TO APPEAL IS LOST.

Q: What is the effect of judgment on those who failed to appeal? A: 1. As to affirmative relief an appellee who has himself not appealed may not obtain from the appellate court any affirmative relief other than what was granted in the decision of the lower court 2. As to reversal of judgment GR: Binding only on the parties in the appealed case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal XPN: Where the rights of the parties appealing are so interwoven and dependent on each other as to be inseparable, in which case a reversal as to one operates as a reversal to all.
Note: Even if the appeal was filed out of time, the court still has jurisdiction to admit and give due course to it, PROVIDED there are justifiable reasons (e.g. in the exercise of the equity jurisdiction of the courts, where a stringent application of the rule would not serve the demands of substantial justice). This is tantamount to a valid order granting the extension if any is prayed for.

g. PERFECTION OF APPEAL Q: When is an appeal perfected? What is its effect? A: 1. Appeal by notice of appeal perfected as to the party upon filing of the notice of appeal in due time and upon payment of the appellate court docket fee. Effect: the court loses jurisdiction over the case upon the perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties 2. Appeal by record on appeal perfected as to the party with respect to the subject matter thereof upon the approval of the record on appeal filed in due time and upon payment of the appellate court docket fee. Effect: The court loses jurisdiction only over the subject matter upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties 3. Appeal by petition for review upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. Effect: RTC loses jurisdiction over the case upon the perfection of the appeal and the expiration of the time to appeal of the other parties.
Note: In either case, prior to the transmittal of the original record or record on appeal to the appellate court, the trial court may, motuproprio or on motion, dismiss the appeal for having been taken out of time or for non-payment of the docket and other lawful fees on time. The court may also exercise its residual powers.

Q: Is the perfection of an appeal jurisdictional? A: GR: Yes. Perfection of appeal within the reglementary period is jurisdictional. XPN: When there has been extrinsic fraud, accident, mistake, or excusable negligence (FAME), resort to Petition for relief from judgment under rule 38. (Habaluyas v. Japson, 142 SCRA 208 (1986)). Q: What is the effect of a perfected appeal? A: GR: Judgment is not vacated by appeal, but is merely stayed and may be affirmed, modified or reversed or findings of facts or conclusions of law may be adopted by reference. XPN: Not applicable to civil cases under the Rules on Summary Procedure which provides that the decision of the RTC in civil cases governed by said Rule including forcible entry and unlawful detainer cases, shall be immediately executory without prejudice to a further appeal that maybe taken therefrom. Q: Would non- payment of docket fees result to the dismissal of the case?

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

CIVIL PROCEDURE
A: GR: Payment of docket fee is jurisdictional. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executory (Regalado v. Go, GR No. 167988, February 6, 2007). However: the rule must be qualified: 1. The failure to pay appellate court docket fee within the reglementary period allows only discretionary dismissal, not automatic dismissal, of the appeal; 2. Such power should be used in the exercise of the courts sound discretion (Republic v. Spouses Luriz, GR No. 158992, January 26, 2007). h. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC Q: Discuss the procedure of appeal from decisions of the MTC to the RTC. A:
Appeal decision of MTC by filing notice of appeal within 15 days or 30 days where a record on appeal is required from receipt of judgment.

Q: Where to appeal from a judgment or final order of a Municipal Court? A: An appeal from a judgment or final order of Municipal Trial Court may be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains (Section 1, Rule 40). Q: When should the appeal be taken? A: 1. An appeal may be taken within 15 days after notice to the appellant of the judgment or final order appeals from (Section 2, Rule 40); 2. Where a record of appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order (Section 2, Rule 40). Q: How should the RTC decide an appeal from an order of a lower court dismissing a case without trial or those rendered without jurisdiction? A: 1.

Copies of the notice, and record on appeal when required, shall be served on the adverse party.

The MTC clerk transmits record to the RTC within 15 days from perfection of appeal.

2.

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

If the lower court dismissed the case without trial on the merits, RTC may: a) Affirm- in such case, it is a declaration of the merits of the dismissal; b) Affirm and the ground of dismissal is lack of jurisdiction over the subject matter the action of the RTC is a mere affirmation of the dismissal. The RTC shall try the case on the merits as if the case was originally filed with it; c) Reverse it shall remand the case for further proceedings. If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the RTC shall not dismiss the case if it has original jurisdiction, but shall decide the case, and shall admit amended pleadings and additional evidence (Sec. 8, Rule 40).

1. 2.

Within 15 days from notice of appeal appellant submits memorandum to the RTC. Within 15 days from receipt of appellants memorandum appellee files his memorandum.

Q: What if the case is dismissed for lack of jurisdiction? A: The order of dismissal is one without prejudice and the plaintiff may simply refile the complaint in the court with the proper jurisdiction because: GR: The order dismissing an action without prejudice is not appealable (Section 1g, Rule 41) XPN: Section 8, Rule 40 allows an appeal from an order of the MTC dismissing a case for lack of jurisdiction.

Note: Failure of the appellant to file a memorandum shall be a ground for the dismissal of the appeal.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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i. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC Q: What are the three modes of appeal from the decisions of the RTC? A: 1. Ordinary appeal or appeal by writ of error where judgment was rendered in a civil or criminal action by the RTC in the exercise of original jurisdiction (governed by Rule 41, taken to the CA on questions of fact or mixed questions of fact and law); Petition for review where judgment was rendered by the RTC in the exercise of appellate jurisdiction (governed by Rule 42, brought to the CA on questions of fact, of law, or mixed questions of fact and law); or Petition for review on certiorari to the SC (governed by Rule 45, elevated to the SC only on questions of law).

Within 30 days after perfection of the appeals, the RTC clerk shall verify the records and transmit the same to the appellate court and shall furnish the parties with copies of his letter of transmittal of the records to the appellate court . Upon receipt of the original records and documents and upon payment of docket fees, the clerk of court of the CA shall docket the case and notify the parties

2.

Within 45 days from the receipt of the notice of the clerk of court, the appellant shall file a brief with proof of service to the appellant

3.

Within 45 days from the receipt of the appellants brief, the appellee shall file his own brief with proof of service to the appellant

Note: Rule 41 refers to appeals from RTC exercising original jurisdiction. An appeal on pure questions of law cannot be taken to the CA and such improper appeal will be dismissed pursuant to Sec. 2, Rule 50 (Regalado, Remedial Law Compendium, Vol. 1, p. 526, 2007 ed.).

Within 20 days from the receipt, the appellant may file a reply brief Note: In petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, briefs are not filed. Instead the parties shall file their memoranda within a non- extendible period of 30 days from the receipt of notice that all the evidences are already attached to the record (Sec 10, Rule 44).

ORDINARY APPEAL OR APPEAL BY WRIT OF ERROR FROM THE RTC TO THE CA Q: What may be the subject of an appeal under Rule 41? A: An appeal may be taken from a judgment or final order that completely disposes of the case or of a particular matter therein when declared by the Rules to be appealable (Section 1, Rule 41). Q: When does Rule 41 on Ordinary Appeal apply? A: Rule 41 applies to appeals from the judgment or final orders of the RTC in the exercise of its original jurisdiction (Section 2a, Rule 41). Q: Discuss the procedure of appeal from decisions RTC to the CAunder Rule 41? A:
Appeal the decision of the RTC by filing notice of appeal within 15 days or 30 days where a record on appeal is required from receipt of judgment

Q: What is the title of the case when appealed to the CA under Rule 41? A: In all cases appealed to the CA under Rule 41, the title of the case shall remain as it was in the court of origin but the party appealing the case shall be referred to as the appellant and the adverse party appellee (Sec 1. Rule 44). Q: Distinguish a brief from a memorandum. A:
Brief Ordinary appeals Filed within 45 days Contents specified by rules Memorandum Certiorari, prohibition, mandamus, quo warranto and habeas corpus cases Filed within 30 days Shorter, briefer, only one issue involved No subject index or assignment of errors, just facts and law applicable

Copies of the notice, and record on appeal when required, shall be served on the adverse party.

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

CIVIL PROCEDURE
Q: What are the contents of appellants brief? A: The appellants brief shall contain, in the order herein indicated, the following: 1. A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively; Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record; Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment; Under the heading "Argument," the appellants arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found; Under the heading "Relief," a specification of the order or judgment which the appellant seeks; and In cases not brought up by record on appeal, the appellants brief shall contain, as an appendix, a copy of the judgment or final order appealed from (Sec. 13, Rule 44). alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited; Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of facts in the appellants brief, or under the heading "CounterStatement of Facts," he shall point out such insufficiencies or inaccuracies as he believes exist in the appellants statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellants statement of facts; and Under the heading "Argument," the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found (Sec. 14).

2.

2.

3.

3.

4.

Q: What is the purpose of an appellants / appellees brief? A: To present to the court in a concise form the points and question in controversy, and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion/ decision (De Liano v. CA (2006)). Q: What is meant by Residual Jurisdiction of the court? A: The term refers to the authority of the trial court to issue orders for the protection and preservation of the rights of the parties. The concept of residual jurisdiction is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no residual jurisdiction to speak of where no appeal or petition has even been filed (Fernandez v. CA, 458 SCRA 454). Q: What are the Residual Jurisdiction/Powers exercised by the trial court? A: 1. Issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal. Approve compromise agreements by parties after judgment has been rendered, (there is no rule that forbids

5.

6.

7.

8.

Q: What are the contents of the appellees brief? A: The appellees brief shall contain, in the order herein indicated, the following: 1. A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases

2.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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litigants to settle amicably even if there is a judgment already) Permit appeals of indigent litigants. Order execution pending appeal in accordance with sec. 2, rule 39. Allow withdrawal of appeal.
Note: Provided these are done prior to the transmittal of the original record or the record on appeal even if the appeals have already been perfected or despite the approval of the record on appeal (Section 9, Rule 41).

4.

3. 4. 5.

5.

RULE 42: PETITION FOR REVIEW FROM THE RTC TO THE CA Q: When does Rule 42 apply? A: Rule 42 applies to an appeal from the judgment or final order of the RTC to the CA in cases decided by the former in the exercise of its appellate jurisdiction. Q: The RTC affirmed the appealed decision of the MTC. You are the counsel of the defeated party and he tells you to appeal the RTC's decision. 1. What mode of appeal will you adopt? 2. Within what time and in what court should you file your appeal? A: 1. The mode of appeal is by petition for review under Rule 42 of the Rules of Court. The period of appeal is within 15 days from notice of the decision subject of the appeal or of the denial of a motion for new trial or reconsideration filed in due time to the CA. (1998 Bar Question)

Must be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. There must be a certification against forum shopping (Sec. 2, Rule 42).

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

any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof (Sec. 3, Rule 45).
Q: Is a petition for review a matter of right? A: It is not a matter of right but discretionary on the CA. It may only be given due course if it shows on its face that the lower court has committed an error of fact and/or law that will warrant a reversal or modification of the decision or judgment sought to be reviewed or dismiss the petition if it finds that it is patently without merit, or prosecuted manifestly for delay, or the questions raised therein are too unsubstantial to require consideration. (Sec. 42) Q: What are the contents of comment to the petition? A:

2.

Q: What are the contents of the petition for review? A:

1.

2. 3.

State the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; Indicate the specific material dates showing that it was filed on time; Set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal;

1.

2.

3.

State whether or not he accepts the statement of matters involved in the petition; Point out the insufficiencies or inaccuracies in petitioners statement of facts and issues; and State the reasons why the petition should be denied or dismissed. (Sec. 5, Rule 42)

Q: Is the doctrine of residual jurisdiction applicable to Appeals under Rule 42? A: Yes, provided that such residual jurisdiction/ power is exercised before the CA gives due course to the petition (Section 8, Rule 42).

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

CIVIL PROCEDURE
Q: What is the effect of an appeal to the judgment or final order? A: The appeal, as a rule, shall stay the judgment or final order; unless the CA, the law or the rules shall provide otherwise.
Note: Civil cases decided under the Rules on Summary Procedure shall not be stayed (Section 8b, Rule 42).

2.

3.

4.

Q: Give some instances where the CA may act as a trial court. A: 1. In annulment of judgment under Secs. 5 and 6, Rule 47. Should the CA find prima facie merit in the petition, the same shall be given due course and summons shall be served on the respondent, after which trial will follow, where the procedure in ordinary civil cases shall be observed. When a motion for new trial is granted by the CA, the procedure in the new trial shall be the same as that granted by a RTC (Sec. 4, Rule 53). A petition for habeas corpus shall be set for hearing (Sec. 12, Rule 102). In petition for writs of amparo and habeas data, a hearing can be conducted. Under Sec. 12, Rule 124 of the Rules of Criminal Procedure, the CA has the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues which fall within its original and appellate jurisdiction. The CA can grant a new trial based on the ground of newly-discovered evidence (Sec. 14, Rule 124). The CA under Sec. 6, Rule 46, whenever necessary to resolve factual issues, may conduct hearing thereon or delegate the reception of the evidence of such issues to any of its members or to an appropriate agency or office. Human Security Act. (2008 Bar Question)

5.

6.

7.

2.

8.

3. 4. 5.

9.

Failure to file the notice of appeal or the record on appeal within the period prescribed by the Rules; Failure of the appellant to pay the docket and other lawful fees as provided in Section 5 Rule 40 and Sec. 4 of Rule 41; Unauthorized alterations, omissions or additions in the approved record on appeal as provided in Sec.4 of Rule 44 Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by the Rules; Absence of specific assignment of errors in the appellants brief, or of page references to the record as required in Sec.13, paragraphs (a), (c), (d) and (f) of Rule 44; Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and The fact that the order or judgment appealed from is not appealable (En Banc Resolution, February 17, 1998)

6.

7.

Note: The grounds are discretionary upon the appellate court. The very wording of the rule uses the word may instead of shall. This indicates that it is only directory and not mandatory. Sound discretion must be exercised in consonance with the tenets of justice and fair play, keeping in mind the circumstances obtaining in each case (Mercury Drug Corporation vs. De Leon, G.R. No. 165622, October 17, 2008.)

RULE 45: APPEAL BY CERTIORARI TO THE SC Q: Is the appeal under Rule 45 a matter of right? A: An appeal or review under Rule 45 is not a matter of right, but of sound judicial discretion with the exception of cases where the penalty of death, or reclusion perpetua where the an appeal is a matter of right leaving the reviewing court without any discretion (People v. Flores, GR No. 170565, January 31, 2006). Q: When does Appeal by Certiorari under Rule 45 apply? A: Appeal by certiorari to the Supreme Court or petition for review on certiorari applies in the following cases:

8.

Q: What are the grounds for the Court of Appeals to dismiss an appeal? A: Under Sec.1 Rule 50, the CA, upon its own motion or upon the motion of the appellee an appeal may be dismissed on the following grounds: 1. Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by the Rules;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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1. Appeal from a judgment or final order of the RTC in cases where only questions of law are raised or are involved and the case is one decided by the said court in the exercise of its original jurisdiction (Section 2c, Rule 41); Appeal from the judgment, final order or resolutions of the Court of Appeals where the petition shall raise only questions of law (Section 1, Rule 45); Appeal from the judgment, final order or resolutions of the Sandiganbayan where the petition shall raise only questions of law (Section 1, Rule 45); Appeals from the decision or ruling of the Court of Tax Appeals en banc (Section 11, RA 9282; Section 1, Rule 45 as amended by AM No, 07-7-12-SC); Appeals from a judgment or final order in a petition for writ of amparo to the Supreme Court which may raise questions of fact, questions of law or of both fact and law (AM No. 08-1-16-SC, Rule on the Writ of Amparo (Section19) October 24, 2007); Appeal from judgment or final order in a petition for the writ of Habeas Data. The appeal may raise questions of fact or law or both (AM No. 08-1-16-SC, Rule on the Writ of Habeas Data (Section 19) February 2, 2008). but only from judgments and final orders of the court enumerated in Sec. 1 thereof. Appeals from judgments and final orders of quasi-judicial agencies are now required to be brought to the CA on a verified petition for review, under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasijudicial agencies. (Fabian v. Desierto, G.R. No. 129742, Sept. 16, 1998) Q: Is the mode of appeal prescribed under Rule 45 applicable to criminal cases? A: Yes. Except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment (Section 9, Rule 45). Q: Can a case decided by the RTC in the exercise of its appellate jurisdiction be appealed by way of a petition for review on certiorari under Rule 45? A: No, where a case is decided by the RTC in the exercise of its appellate jurisdiction, regardless of whether the appellant raises questions of fact, of law or mixed questions of fact and law, the appeal shall be brought to the CA by filing a petition for review under Rule 42 (Quezon City v. ABS-CBN Broadcasting Corporation, GR No. 166408 October 6, 2008). Q: Discuss the procedure for filing an appeal by certiorari. A:
RTC, Sandiganbayan or RTC renders decision.

2.

3.

4.

5.

6.

Q: When is there a question of law? How does it differ from a question of fact? A: There is a question of law when the doubt or difference arises as to what the law is on a certain set of facts. A question of fact on the other hand is when the doubt or difference arises as to the truth or falsehood of the facts alleged. Q: May a petition for review on certiorari include prayer for the grant of provisional remedies? A: The petition for review on certiorari may include an application for a writ of preliminary injunction or other provisional remedies. The petitioner may also seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency (Sec. 1, Rule 45 as amended by A.M. No. 07-7-12-SC). Q: Does Rule 45 include appeals from quasijudicial bodies? A: No. Under the present Rule 45, appeals may be brought through a petition for review on certiorari

Aggrieved party files a petition for review on certiorari within 15 days from notice of final judgment or order of lower court or notice of denial of motion for reconsideration or new trial.

Petitioner serves copies on adverse parties and the lower court and pays the corresponding docket fees.

SC may either dismiss the petition, or require the appellee to comment. If given due course, parties may submit memoranda.

SC may affirm, reverse, or modify judgment of the lower court.

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

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

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

Note: the petition shall raise only questions of law, which must be distinctly set forth. Appeals to the SC are made only by verified petitions for review on certiorari, XPN: appeals from judgements of the RTC in criminal cases where the penalty imposed is life imprisonment or reclusion perpetua (elevated by ordinary appeal), or death penalty (subject to automatic review).

Q: When may the SC, on its own initiative, deny the petition for review? A: 1. 2. 3. The appeal is without merit; Prosecuted manifestly for delay; or That the questions raised therein are too unsubstantial to require consideration (sec.5, Rule 45)

Q: Distinguish Certiorari under Rule 45 and Certiorari under Rule 65. A:


CERTIORARI (RULE 45) Mode of appeal which seeks to review final judgments and orders (Section 2, Rule 41) CERTIORARI (RULE 65) Special civil action; an original action (Rule 65). It may be directed against an interlocutory order or matters where no appeal may be taken from (Section 1, Rule 41) Raises questions of jurisdiction It shall be filed not later than 60 days from notice of judgment, order or resolution sought to be assailed and in case a MR or motion for new trial is timely filed, whether such motion is required or not, the 60 day period shall be counted from the notice of denial of said motion Requires as a general rule, a prior MR Does not stay the judgment or order subject of the petition unless enjoined or restrained. The tribunal, board, officer exercising judicial or quasijudicial functions is impleaded as respondent (Section 5 Rule 65).

j. APPEAL FROM JUDGMENT OR FINAL ORDERS OF THE CA Q: May a reversal of judgment benefit a party who did not join or was not made a party to the appeal? A: GR: The reversal of a judgment on appeal is generally binding only on the parties in the appealed case and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal. XPN: Where the rights of such parties are so interwoven and dependent on each other as to be inseparable due to community of interests. Q: When may the SC review the findings of fact of the CA? A: GR: CAs findings of fact are final and conclusive and cannot be reviewed on appeal to the SC. The SC shall not entertain questions of fact because its jurisdiction is limited to reviewing errors of law (Natividad v. MTRCB, GR No. 161422, December 13, 2007). XPNs: 1. The conclusion of the CA is grounded entirely on speculations, surmises and conjectures; 2. The inference made is manifestly mistaken, absurd or impossible; 3. There is grave abuse of discretion; 4. The judgment is based on misapprehension of facts; 5. The findings of facts are conflicting; 6. The CA in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;

Raises questions of law It shall be filed within 15 days from notice of judgment or final order appealed from

Does not require prior motion for reconsideration Stays the judgment sought to be appealed

The parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge (Section 4a, Rule 45). Filed with the SC (Section 1, Rule 45).

Filed with the RTC (Section 21, BP 129); With the CA (Section 9, BP 129);

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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7. The findings are contrary to those of the trial court; 8. The findings of facts are conclusions without citation of specific evidence on which they are based; 9. The facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; 10. The findings of fact of the CA are premised on the supposed absence of evidence and contradicted by the evidence on record; or 11. Those filed under Writs of amparo, habeas data, or kalikasan. k. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA Q: Where should the appeal from the decision of the CTA en banc be taken? A: A party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45 (Sec. 12, R.A. 9282; A.M. No. 07-7-12-SC). Q: Melissa filed with the BIR a complaint for refund of taxes paid, but it was not acted upon. So, she filed a similar complaint with the CTA raffled to one of its divisions. Melissa's complaint was dismissed. Thus, she filed with the CA a petition for certiorari under Rule 65. Does the CA have jurisdiction over Melissa's petition? A: No. A decision of a division of the CTA is appealable within 15 days to the CTA en banc. On the other hand, a party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45 of the Rules of Court. R.A. 9282 expanded the jurisdiction of the CTA and elevated the same to the level of a collegiate court equivalent to the rank of the CA. Hence, the CA no longer has jurisdiction to review the decisions of the CTA en banc. (2006 Bar Question) l. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COA m. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COMELEC n. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE CSC Q: What is the remedy of a party aggrieved by the decision of the COMELEC, COA and CSC? A: A judgment, resolution or final order of the COMELEC and the COA may be brought by the aggrieved party to the SC on certiorari under Rule 65 by filing the petition within 30 days from notice (Sec. 2, Rule 64). On the other hand, judgments, final orders or resolutions of the CSC may be taken to the CA under Rule 43 of the Rules of Court (Sec. 1, 3 Rule 43). o. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE OMBUDSMAN Q: Does the CA have jurisdiction to review the decisions in criminal and administrative cases of the Ombudsman? A: It depends 1. In administrative disciplinary cases, the rulings of the Office of the Ombudsman are appealable to the CA under Rule 43.

Note: The provision of Section 27 of RA 6770 (The Ombudsman Act of 1987) insofar as it allowed a direct appeal to the Supreme Court was declared unconstitutional as it increased the appellate jurisdiction of the SC without the advice and concurrence of the Court (Fabian v. Deseirto, 356 SCRA 787).

2.

In criminal cases, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65. Where the findings of the ombudsman on the existence of probable cause in criminal cases is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file a petition for certiorari with the SC under Rule 65 (Enemecio vs. Office of the Ombudsman, 419 SCRA 82)

Q: What is the remedy of a party aggrieved by the decision of the Sandiganbayan? A: Decisions and final orders of the Sandiganbayan shall be appealable to the SC by way of certiorari under Rule 45 raising pure questions of law (Section 1, Rule 45). p. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE NLRC Q: What is the remedy of a party aggrieved by the decision of the NLRC? A: The remedy is to promptly move for the reconsideration of the decision and if denied, to

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

CIVIL PROCEDURE
timely file a special civil action of certiorari under Rule 65 within 60 days from notice of the decision. In observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the CA (St. Martin Funeral Homes vs. NLRC, G.R. No. 130866, September 16, 1998). If filed with SC it shall be dismissed instead of referring the action to the CA (A.M. No. 99-2-01-SC).
Note: Those judgments and final orders or resolutions of the Employees Compensation Commission should be brought to the CA through a petition for review under Rule 43.

A: Appeals from judgment and final orders of quasijudicial bodies/ agencies enumerated in Rule 43 are now required to be brought to the CA under the requirements and conditions set forth in Rule 43 (Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128). Q: What issues may be raised on appeal? A: The appeal under Rule 43 may raise issues involving questions of fact, of law or mixed questions of fact and law (Section 3, Rule 43). Q: What are the contents of comment to the petition and when must it be filed? A: The comment shall be filed within 10 days from notice in 7 legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers. The comment shall: 1. Point out the insufficiencies or inaccuracies in petitioners statement of facts and issues; and 2. State the reasons why the petition should be denied or dismissed. (Sec. 9 Rule 43)
Note: The appellate court may also require the filing of a reply, but further submissions are governed by the resolution in AM No. 99-2-04.

q. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF QUASI- JUDICIAL AGENCIES Q: What is a quasi-judicial agency? A: An organ of the government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule-making. Q: What are the agencies included under Rule 43? A: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. Civil Service Commission; Central Board of Assessment Appeals; Securities and Exchange Commission; Office of the President; Land Registration Authority; Social Security Commission; Civil Aeronautics Board; Bureau of Patents, Trademarks and Technology Transfer; National Electrification Administration; Energy Regulatory Board; National Telecommunications Commission; Department of Agrarian Reform under R.A. 6657; GSIS; Employee Compensation Commission; Agricultural Inventions Board; Insurance Commission; Philippine Atomic Energy Commission; Board of Investments; Construction Industry Arbitration Commission; and Voluntary Arbitrators authorized by law (Sec. 1 Rule 43).

Q; What is the effect of the appeal on the award, judgment, final order or resolution? A: The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the CA shall direct otherwise upon such terms as it may deem such (Section 12, Rule 43). Q: What is the remedy of a party aggrieved by the decision of a Quasi-judicial Agency? A: Within 15 days from: 1. Notice of the award, judgment, final order or resolution; or 2. Date of publication, if publication is required by law for its effectivity; or 3. Denial of petitioners MNT or MR, the aggrieved party must file a verified petition for review under rule 43 in 7 legible copies with the CA. Furnish a copy to the lower court and adverse party. The appeal may involve questions of fact, of law, or mixed questions of fact and law. Q: Is extension of time to file petition for review allowed?

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

Q: Where should the judgments and final orders of quasi- judicial bodies be appealed?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A: Yes. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the CA may grant additional period of 15 days only within which to file a petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. (Sec. 4, Rule 43) Q: Distinguish appeal from RTC as appellate court under Rule 42 and appeal from quasi-judicial agencies under Rule 43. A:
RTC as Appellate Court (Rule 42) Decision is stayed by an appeal. Factual findings not conclusive to CA. Appeal from Quasi-judicial agencies (Rule 43) GR: Decision is immediately executory. It is not stayed by an appeal XPN: CA shall direct otherwise upon such terms as it may deem just Factual findings are conclusive upon CA if supported by substantial evidence.

(Quelnan v. VHF Philippines, G.R. No. 138500, Sept. 16, 2005). Q: Purcon was hired as a seaman, he was repatriated due to his ailment. After undergoing some medications, he went back to work but was not re-hired due to lack of vacany. Purcon then filed a case for reimbursment of medical expenses with the NLRC. The LA dismissed the complaint for lack of merit. A memorandum of appeal with the NLRC was filed but was dismissed. Petitioner filed petition for review on certiorari under Rule 65 with the CA which was also denied, the MR was likewise denied. This prompted the petitioner to file with the SC a petition for review on certiorari under Rule 45 which was denied. As a last recourse, petitioner filed a petition for relief from judgment. Whether or not the petitioner can avail of a petition for relief from judgment after the denial of the SC of his petition for review? A: No. A petition for relief from judgment is not an available remedy in the Court of Appeals and Supreme Court. It should be filed with the same court which rendered the decision. While Rule 38 uses the phrase "any court," it refers only to Municipal/Metropolitan and Regional Trial Courts. If a petition for relief from judgment is not among the remedies available in the CA, with more reason that this remedy cannot be availed of in the Supreme Court. This Court entertains only questions of law. A petition for relief raises questions of facts on fraud, accident, mistake, or excusable negligence, which are beyond the concerns of this Court (Purcon v. MRM Philippines Inc., GR No. 182718, September 26, 2008). Q: Distinguish motion for new trial/reconsideration from petition for relief from judgment. A:
Motion for New Trial / Reconsideration Available before judgment becomes final and executory. Petition for Relief from Judgment Available after judgment has become final and executory. Applies to judgments, final orders and other proceedings: e.g. land registration; special proceedings; order of execution. Grounds: Fraud, accident, mistake or excusable negligence.

Q: Is Rule 43 applicable where the resolution was issued by a quasi-judicial agency with grave abuse of discretion? A: No, Rule 43 is not applicable where the petition contains an allegation that the challenged resolution is patently illegal and was issued with grave abuse of discretion and beyond respondents jurisdiction. The appropriate remedy is Rule 65 on certiorari. Q: When is the withdrawal of an appeal a matter of right? A: As a matter of right, appellant may withdraw his appeal at any time before the filing of the appellees brief. Thereafter, it is in the discretion of the court. AFTER FINALITY OF JUDGMENT 3. RELIEF FROM JUDGMENTS, ORDERS AND OTHER PROCEEDINGS Q: What is the nature of petition for relief from judgment? What is its purpose? A: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake or excusable neglect

Applies to judgments or final orders only.

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

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

CIVIL PROCEDURE
evidence Grounds for motion for reconsideration: the damages awarded are excessive; that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law (Sec. 1). Filed within the time to appeal. The order of denial is not appealable. The remedy is to appeal from judgment or final order. Legal remedy. Motion need not be verified. Filed within 60 days from knowledge of the judgment and within 6 months from entry of judgment(1990 Bar Question) The order of denial is not appealable; the remedy is appropriate special civil action under Rule 65 Equitable remedy. Petition must be verified. Note: The bond is conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of issuance of such injunction or the other proceedings following the petition.

a. GROUNDS FOR AVAILING OF THE REMEDY Q: What are the grounds for petition for relief? A:

1.

A judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence (Sec. 1, Rule 38); or
The petitioner has been prevented from taking an appeal by fraud, accident, mistake, or excusable negligence (Sec. 2, Rule 38).

2.

Note: A party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. The two remedies are exclusive of one another. The remedy is to appeal from the judgment (Section 9,Rule 38; Francisco v. Puno, 108 SCRA 427).

Q: Where should the petition be filed? A: 1. If the petition is filed because of the first ground, the petition shall be filed in such court and in the same case (not in another or higher court). The petition shall pray that the judgment, order or proceeding be set aside (Sec. 1, Rule 38). If the petition is filed under the second ground, the petition shall likewise be filed in such court and in the same case (not in another or higher court) but the prayer this time is that the appeal be given due course (Sec. 2, Rule 38) b. TIME TO FILE PETITION Q: When should the petition for relief be filed? A: 1. Within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside; and Not more than six (6) months from entry of such judgment, order or other proceeding (Sec. 3).

Q: Who may file the petition for relief from judgment? A: A petition for relief from judgment together with a motion for new trial and a motion for reconsideration are remedies available only to parties in the proceedings where the assailed judgment is rendered. A person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment. (Alaban v. CA, 470 SCRA 697) Q: What are the duties of the court after an answer to the petition has been filed A: After the hearing and the court finds the allegations therein not true, it shall dismiss the petition. If the allegations are true, the court shall set aside the judgment, final order or proceeding complained of. (Sec. 6, Rule 38) Q: Is the remedy of preliminary injunction available pending the resolution of the petition for relief? A: Yes. The court may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties upon the filing of a bond (Sec. 5, Rule 38).

2.

2.

Note: These two periods must concur and are also not extendible and never interrupted (Riano, Civil Procedure: A Restatement for the Bar, p. 479, 2009 ed.).

Q: May a defendant who has been declared in default right away avail of a petition for relief from the judgment subsequently rendered in the case?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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A: No. The remedy of petition for relief from judgment is available only when the judgment or order in question is already final and executory, i.e., no longer appealable. As an extraordinary remedy, it may be availed only in exceptional cases where no other remedy is available. (2007 Bar Question) c. CONTENTS OF THE PETITION Q: What is the form and contents of the petition for relief? A: 1. 2. 3. The petition for relief must be verified; It must be supported by affidavit showing the FAME relied upon; and The affidavit of merit accompanying the petition must also show facts constituting the petitioners good or substantial cause of action or defense. The extraordinary action to annul a final judgment is restricted to the grounds provided by law to prevent it from being used by a losing party to make a mockery of a duly promulgated decision that has long become final and executory. Q: Where should the petition be filed? A:
Judgments of RTC Filed with the CA Basis It has exclusive original jurisdiction over said action under Sec. 9 (2), BP 129 CA may dismiss the case outright; it has the discretion on whether or not to entertain the petition. Judgments of MTC Filed with the RTC Basis RTC as a court of general jurisdiction under Sec. 19 (6), BP 129 RTC has no such discretion. It is required to consider it as an ordinary civil action.

remedies are no longer available through no fault of the petitioner (Sec. 1, Rule 47). Q: Who may avail this remedy? A: A person need not be a party to the judgment sought to be annulled. What is essential is that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby (Islamic Dawah Council v. CA, G.R. No. 80892, Sept. 29, 1989).

Note: An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not a fatal defect to warrant a denial of the petition, so long as the facts required to be set out also appear in the verified petition.

Q: When shall the court issue an order to answer? A:When the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from the receipt thereof (Sec. 4, Rule 38). 4. ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS Q: What is annulment of judgment?

a. GROUNDS FOR ANNULMENT Q: What are the grounds for the annulment of judgment of the RTC? A: A: It is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose of such action is to have the final and executor judgment set aside so that there will be renewal of litigation.
Note: A co-equal court cannot annul the final judgment of a similar court. CA has exclusive jurisdiction over actions for annulment of judgments of RTC. An action to annul a judgment or final order of MTC shall be filed in the RTC having jurisdiction in the former and it shall be treated as an ordinary civil action. (Secs. 1 &10, Rule 47).

1.

2.

Q: When may it be availed of? A: The remedy of annulment of judgment may be availed of when the ordinary remedies of new trial, appeal, petition for relief or other appropriate

3.

Extrinsic fraud or collateral fraud not a valid ground if it was availed of, or could have been availed of in a motion for new trial or petition for relief. Lack of jurisdiction over the subject matter and over the person May be barred by estoppels by laches, which is that failure to do something which should be done or to claim or enforce a right at a proper time or a neglect to do something which one should do or to seek or enforce a right at a proper time. (1998 Bar Question) Denial of due process (Alaban v. CA, G.R. No. 156021, Sept. 23, 2005).

Q: What is extrinsic fraud?

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

CIVIL PROCEDURE
A: Fraud is regarded as extrinsic where it prevents a party from having a trial or from preventing a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured (Alaban v. CA, GR no. 156021, September 23, 2005). Q: What is meant by lack of jurisdiction? A: Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim. b. PERIOD TO FILE ACTION Q: What is the period to file an action? A: 1. If based on extrinsic fraud, the action must be filed within four (4) years from its discovery. If based on lack of jurisdiction, the action must be brought before the action is barred by laches or estoppel (Sec. 2, Rule 47). A: Yes. Annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled is promulgated. It can be filed by one who was not a party to the case in which the assailed judgment was rendered. Here, Rhea may avail of the remedy of annulment of judgment under Rule 47. The ordinary remedies of new trial, appeal and petition for relief were not available to her for the simple reason that she was not made a party to the suit against Allied (Villanueva v. Nite, G.R. No. 148211, July 25, 2006). 5. COLLATERAL ATTACK OF JUDGMENTS Q: What is a collateral attack on judgment? A: It is made in another action to obtain a different relief; an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face is null and void, as where it is patent that the court which rendered such judgment has no jurisdiction (Co vs. Court of Appeals, 196 SCRA 705). Q. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS Q: What is execution? A: It is a remedy provided by law for the enforcement or satisfaction of a final judgment. 1. DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION Q: What is meant by final judgment? A: 1. The term final when used to describe a judgment may be used in two senses. In the first, it refers to a judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto. In this sense, a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case (Rudecon Management Corp. vs. Singson, 454 SCRA 612). amount of the dishonored check. The trial court ruled in favor of Jenny. Allied remitted to the sheriff a managers check amounting to P800,000 drawn on Rheas account which was duly received by Jenny. Rhea filed a petition in the CA seeking to annul and set aside the trial courts decision on the ground of extrinsic fraud. The appellate court granted Rheas petition. Is the CA correct?

2.

c. EFFECTS OF JUDGMENTS OF ANNULMENT Q: What is the effect of a judgment of annulment? A: If based on lack of jurisdiction- It shall have the effect of setting aside the questioned judgment or final order and rendering the same null and void but the judgment of annulment is without prejudice to the refilling of the original action in the proper court (Sec.7, Rule 47)
Note: The prescriptive period for the refilling of the action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. But shall not however, be suspended where the extrinsic fraud is attributable to the plaintiff in the original action (Sec. 8, Rule 47).

If based on extrinsic fraud- The court, upon motion, may order the trial court to try the case as if a motion for new trial was granted (Sec. 9, Rule 47). Q: Rhea took out a loan of P1 Million from Jenny. To secure the loan, Rhea issued Jenny an Allied check in the amount of P750,000 which, however, was dishonored due to a material alteration. Rhea then remitted P600,000 to Jenny as partial payment of the loan with the balance payable at a later date. Prior to the due date for the payment of the balance, Jenny filed an action for a sum of money and damages against Allied for the full

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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2. In another sense, the word final may refer to a judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal or if there has been appeal, it has already been resolved by a highest possible tribunal (PCGG vs. Sandiganbayan, 455 SCRA 526). In this sense, the judgment is commonly referred to as one that is final and executory. 1. The judgment has become final and executory(Section 1, Rule 39);
Note: Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the issuance of a writ of execution becomes the ministerial duty of the court. Once a decision becomes final and executory, it is the ministerial duty of the presiding judge to issue a writ of execution except in certain cases, as when subsequent events would render execution of judgment unjust (Mangahas vs. Paredes, GR 157866, Feb. 14, 2007).

Q: Distinguish final judgments for purposes of appeal from final judgments for purposes of execution. 2. A:
Final Judgments for purposes of appeal Dispose of, adjudicate, or determine the right of the parties. Final Judgments for purposes of execution Becomes final and executory by operation of law. After lapse of period to appeal and no appeal was perfected, no further action can be had. Execution of judgment a matter of right.

3. 4.

Still subject to appeal

Judgment debtor has renounced or waived his right to appeal; The period for appeal has lapsed without an appeal having been filed; Having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin (Florendo v. Paramount Insurance Corp, now MAA General Insurance Inc., GR No. 167976, January 20, 2010).

Execution of judgment not a matter of right.

Q: May the court which rendered the judgment refuse to issue writ of execution? A: GR: Execution of judgment is a matter of right on the part of the winning party. The court cannot refuse execution. XPN: 1. When the judgment has already been executed by the voluntary compliance thereof by the parties (Cunanan v. CA, G.R. No. L-25511, Sept. 28, 1968);
Note: This is a situation where there is a satisfaction of the judgment without need for its execution by the court.

2. WHEN EXECUTION SHALL ISSUE a. AS A MATTER OF RIGHT Q: When shall execution be issued? A: Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding (Sec. 1, Rule 39) Q: How is an execution issued? A: Execution shall issue upon motion. Therefore, there is a need to file a motion for the issuance of a writ of execution. Even in judgments which are immediately executory, there must be a motion to that effect and a hearing called for that purpose. Also, under SC circular no. 24-94, a motion for the issuance of a writ of execution must contain a notice to the adverse party (Lou vs. Siapno, 335 SCRA 181 and Pallada vs. RTC of Kalibo, Aklan, Br.1, 304 SCRA 440) Q: When is an execution a matter of right?

2.

When the judgment has been novated by the parties (Dormitorio v. Fernandez, G.R. No. L-25897, Aug. 21, 1976);
Note: The parties, despite the existence of a judgment, are at liberty to novate a judgment by entering into a compromise. A compromise is a contract recognized by substantive law (Art. 2028, NCC).

3.

4. A: Execution will issue as a matter of right when:

When a petition for relief is filed and a preliminary injunction is granted in accordance with Sec. 5, Rule 38; When the judgment sought to be executed is conditional (Co Unjieng v. HijosMabalacat Sugar Co., G.R. No. L-

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

CIVIL PROCEDURE
32644, Oct. 4, 1930) or is incomplete (Del Rosario v. Villegas, G.R. No. L-25726, Nov. 22, 1926); When facts and circumstances transpire which would render execution inequitable or unjust (Bacharach Corp. v. CA, G.R. No. 128349, Sept. 25, 1998); When execution is sought more than 5 years from its entry without the judgment having been revived; When execution is sought against property exempt from execution under Sec. 13, Rule 39; or When the refusal to execute the judgment. b. AS A MATTER OF DISCRETION Q: When is execution discretionary? A: 1. 2. Execution pending appeal; and While trial court has jurisdiction over the case and is in possession of either the original record or record on appeal; When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court; and When trial court has lost jurisdiction and has transmitted records (motion for execution pending appeal with appellate court). Execution of several, separate or partial judgment(Florendo v. Paramount Insurance Corp, now MAA General Insurance Inc., GR No. 167976, January 20, 2010).. 1. There must be a motion filed by the prevailing party with notice to the adverse party; There must be a hearing of the motion for discretionary execution; There must be good reasons to justify the discretionary execution; and The good reasons must be stated in a special order (Sec. 2, Rule 39)

5.

2. 3. 4.

6.

7.

Q: Where should you file an application for discretionary execution? A: 1. a. b. The motion for discretionary execution shall be filed with the trial court: While it has jurisdiction over the case and While it is in possession of either the original record or the record on appeal; or After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court (Bangkok Republic Company Limited vs. Lee, G.R. No. 159806, January 20, 2006).

2.

3.

4.

Q: What is the remedy where the judgment subject to discretionary execution is reversed or annulled? A: The trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances (Sec. 5, Rule 39). Q: In a complaint filed by Granger for rescission and damages, the RTC ruled against JP Latex, defendant. On Aug. 5, 2006, Granger moved for the execution pending appeal of the decision. Upon receipt of the decision, JP Latex filed a motion for reconsideration (MR). The RTC granted the execution pending appeal without acting on the motion for reconsideration. Is the order of the trial court correct? A: No. Discretionary execution is allowed only when the period to appeal has commenced but before the trial court loses jurisdiction over the case. The period to appeal where a motion for reconsideration has been filed commences only upon the receipt of the order disposing of the MR. The pendency of a MR, therefore, prevents the running of the period to appeal. The MR filed by JP Latex had not been acted upon by the RTC before it ruled on the motion for execution pending appeal. The pendency of the MR has prevented the period to appeal from even commencing. The period within which a party may

5.

Note: As such exception, the courts discretion in allowing it must be strictly construed and firmly grounded on the existence of good reasons. Good reasons, has been held, to consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. Circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity (Florendov. ParamountInsurance Corp. (nowrenamed MAA General Insurance Inc.), G.R. No. 167976, Jan. 20, 2010).

Q: What are the requisites for discretionary execution? A:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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move for an execution pending appeal of the RTCs decision has not yet started. Thus, where there is pending MR, an order of execution pending appeal is improper and premature. (JP Latex Technology, Inc. v. Ballons Granger Balloons, Inc., et. al., G.R. No. 177121, Mar. 16, 2009) Q: How may a discretionary execution be stayed? 3. HOW JUDGMENT IS EXECUTED Q: How can a judgment be executed? A:
Judgment is executed by motion within 5 years from date of its entry

A: It may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom execution is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part (Sec. 3 Rule 39).

Execution is a matter of right after expiration of period to appeal and no appeal is perfected.

Discretionary execution upon good reasons stated in a special order after due hearing.

If the winning party does not move for execution within 5 years but before 10 years from the date of entry of judgment, the same can only be revived by means of new action / petition.

Sheriff executes writ of execution

Losing party is made to indemnify thru: 1. Payment with interest; 2. Levy and sale of personal property; 3. Levy and sale of real property; 4. Delivery of personal and/or real property. Note: 5 and 10 year periods not applicable to judgment for support and special proceedings.

a. EXECUTION BY MOTION OR BY INDEPENDENT ACTION Q: What are the modes of execution of judgment? A: a. Execution by motion-if the enforcement of the judgment is sought within 5 years from the date of its entry; and Execution by independent action -if the five year period has elapsed and before it is barred by statute of limitations (Sec. 6, Rule 39)

prevailing party after 5 years from the date of entry of judgment, such motion is considered null and void (Tag Fibers, Inc. vs. NLRC, 344 SCRA 29; Terry vs. People, 314 SCRA 669) Q: Can execution be effected by motion after five years? A: GR:No, execution of a judgment can no longer be effected after 5 years. The remedy would be to file an independent action for the revival of the judgment. XPNs: The court in certain instances allowed execution of the judgment by mere motion despite the lapse of the 5 year period. In instances where the delay in the execution of the judgment were through causes attributable to the judgment debtor or when the delay is incurred for his benefit.

b.

Q: When is there a need to file an independent action for execution? A: There is a need for the prevailing party to file an independent action for the revival of the judgment before the action is barred by statute of limitations when a writ of execution is issued by motion of the

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

CIVIL PROCEDURE
Q: What is revival of judgment? A: This means that from the date of the finality of judgment, no motion was filed for the execution of said judgment, thus the need for its enforcement by action. Q: When should the action for revival of judgment be filed? A: The action to revive a judgment must be filed within 10 years from the date of judgment became final because an action to enforce a judgment prescribes in 10 years from the finality of the judgment. Q: What is the nature of a revived judgment? A: A revived judgment is deemed a new judgment separate and distinct from the original judgment. Q: How do you enforce a revived judgment? A: A revived judgment may be enforced by motion within 5 years from the date of its entry and thereafter by action also before it is barred by the statute of limitations (Sec. 6, Rule 39). Q: May the period to execute the judgment be stayed? A: Yes: by agreement of the parties; by injunction; or by taking an appeal or writ of error. Q: What is the effect of an appeal to the execution of the judgment? A: GR: An appeal perfected in due time stays the execution of a judgment. XPNs: There are judgments which by express provision of law not stayed by appeal: 1. Those judgments which by express provision of the rules are immediately executor and are not stayed by appeal (Sec. 4, Rule 39);
Note: These are: judgment for injunction, receivership, accounting and support unless the court rule otherwise.

Q: What are the defenses available in an action for enforcement? A: 1. Prescription; 2. Satisfaction of claim; and 3. Counterclaims. Q: Will execution issue upon death of a party? A: a. Death of an obligee execution will issue in any case, upon application of his executor, administrator, or successor-ininterest Death of an obligor - Death before levy: Action for recovery of real or personal property or any lien execution will issue. Action for a sum of money execution will NOT issue. The judgment obligee should file a claim against the estate of the judgment obligor under Rule 86 - Death after levy: Execution will issue against his executor, administrator, or successorin-interest because the property is already separated from the estate of the deceased and is deemed in custodia legis.

b.

b. ISSUANCE AND CONTENT OF A WRIT OF EXECUTION Q: What is a writ of execution? A: It is a judicial writ issued to an officer authorizing him to execute the judgment of the court. Q: What is the lifetime of a writ of execution? A: The writ is enforceable within 5 years from the entry of judgment as provided for in Sec. 6 of Rule 39. Q: What are the contents of a writ of execution? A: 1. 2. 3. 4. The name of the court which granted the motion; The case number; The dispositive portion of the judgment or order subject of the execution; and Shall require the sheriff or other proper officer to whom it is directed to enforce

2.

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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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the writ according to its terms (Sec.8, Rule 39)
Note: The motion for execution and the writ of execution must state specifically the amount of interest, costs, damages, rents, or profits due as of the date of issuance of the writ, aside from the principal obligation.

a.

b.

Q: Is a writ of execution subject to a motion to quash? A: A writ of execution may be quashed on certain grounds: 1. When the writ of execution varies the judgment; 2. When there has been a change in the situation of the parties making the execution inequitable or unjust; 3. When execution is sought to be enforced against a property exempt from execution; 4. When it appears that the controversy has never been submitted to the judgment of the court; 5. When the terms of the judgment are not clear enough and there remains room for interpretation thereof; 6. When it appears that the writ of execution has been improvidently issued; 7. When it appears that the writ of execution is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied or the writ is issued without authority (Reburiano v. CA, 301 SCRA 342). c. EXECUTION OF JUDGMENTS FOR MONEY Q: What are the 3 ways to enforce a judgment for money? A: 1. 2. Immediate payment on demand Satisfaction by levy The judgment obligor exercises discretion to choose which property to levy; if not exercised, the officer shall levy first on personal property, then on real property. The sheriff shall only sell property sufficient to satisfy the judgment and other lawful fees. Garnishment of debts and credits.

c.

Demand from the obligor the immediate payment of the full amount stated in the judgment including the lawful fees in cash, certified check payable to the judgment obligee or any other form of payment acceptable to him. If the judgment obligor cannot pay all or part of the obligation in cash, certified check or other mode of payment, the officer shall levy upon the properties of the judgment obligor. The judgment obligor shall have the option to choose which property or part thereof may be levied upon. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees. The officer may levy on the debts due the judgment debtor including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or con troll of third parties. This is called garnishment. (Sec. 9, rule 39)

Q: What is levy? A: It is the act by which an officer sets apart or appropriates a part of the whole of the property of the judgment debtor for purposes of the execution sale. Q: What is garnishment? A: It is the act of appropriation by the court when the property of the debtor is in the hands of third persons.
Note: The garnishee or the third person who is in the possession of the property of the judgment debtor is deemed a forced intervenor.

Q: Distinguish attachment from garnishment. A: Attachment refers to corporeal property in the possession of the judgment debtor. Garnishment refers to money, stocks, credits and other incorporeal property which belong to the judgment debtor but is in the possession or under the control of a third person. (1999 Bar Question) Q: The writ of execution was returned unsatisfied. The judgment obligee subsequently received

3.

Q: What are the steps in executing a judgment for money? A:

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

CIVIL PROCEDURE
information that a bank holds a substantial deposit belonging to the judgment obligor. If the bank denies holding the deposit in the name of the judgment obligor but your client's informant is certain that the deposit belongs to the judgment obligor under an assumed name, what is your remedy to reach the deposit? A: A motion may be filed for a court order requiring the proper bank officer to appear in court for examination under oath as to such bank deposit, and subsequently move for a court order authorizing the filing of an action against such bank for the recovery of the judgment obligors deposit/interest therein and to forbid a transfer or other disposition of such deposit/interest within 120 days from notice of the order (Secs. 37 and 43).(2008 Bar Question) Q: How is money judgment implemented if the obligee is absent at the time of payment? A: Sec. 9, Rule 39 lays down the procedure to be followed by the sheriff in implementing money judgments. When the judgment obligee is not present at the time the judgment obligor makes the payment, the sheriff is authorized to receive it. However, the money received must be remitted to the clerk of court within the same day or, if not practicable, deposited in a fiduciary account with the nearest government depository bank. Sheriffs are not permitted to retain the money in their possession beyond the day when the payment was made or to deliver the money collected directly to the judgment oblige (Pea, Jr. v. Regalado II, A.M. No. P-10-2772 (formerly A.M. OCA I.P.I No. 07-2615-P), Feb. 16, 2010). d. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS Q: What are considered specific acts? A: 1. 2. 3. 4. 5. Conveyance, delivery of deeds, or other specific acts vesting title; Sale of real or personal property; Delivery or restitution of real property; Removal of improvements on property subject of execution; and Judgments for the delivery of personal property.
Delivery or restitution of real property

1.

2.

3.

4.

In case of conveyance, if a party fails to comply with the time specified, the court may direct the act to be done at the cost of the disobedient party. In case of delivery or restitution of real properties, the officer shall demand the losing party to peaceably vacate the property within 3 working days, and restore possession to the judgment oblige; otherwise the officer shall oust such disobedient party. In case of removal of improvements on property subject of execution, the officer shall not destroy, demolish or remove improvements except upon special order of the court. In judgments for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled to satisfy any judgment for money as therein provided.

Q: How can judgment be executed for the following specific acts if the judgment debtor refuses/fails to comply therewith? A:
Judgments for Specific Act (Sec. 10) Conveyance, delivery of deeds, or other specific acts, vesting title. Sale of real and personal property Manner of Execution Court can appoint some other person at the expense of the disobedient party and the act done shall have the same effect as if the required party performed it. Sell such property and apply the proceeds in conformity with the judgment. If the party refuses to deliver, a writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a haberefaciaspossesionemand authorizes the sheriff to break open the premises where there is no occupant therein. If party refuses to vacate property, remedy is not contempt. The sheriff must oust the party. But if demolition is involved, there must be a special order. The officer may destroy, demolish or remove the improvements upon special order of the court, issued upon motion of the judgment obligee. The officer shall take possession and deliver to the party entitled thereto.

Q: What are the steps in executing a judgment for specific acts? A:

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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment (Sec 11, Rule 39). f. EFFECT OF LEVY ON THIRD PERSON Q: What is the effect of levy on execution as to third persons? A: It creates a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing (Sec. 12). Q: Aiza obtained a judgment for money against Bert. The sheriff enforcing the corresponding writ went to Celywho, is the pledgee of a ring Bert had given as security for a loan and insisted on taking possession of the ring for the purpose of eventually selling it at the execution sale to satisfy the judgment debt of Bert to Aiza. Does Cely have the obligation to surrender the ring to the sheriff? Explain. A: No, because Cely has the right to retain the ring in his possession until the loan is paid (Art. 2098, NCC). If the sheriff should take possession of the ring, Cely may file a third-party claim. (1987 Bar Question) Q: What are the remedies available to a thirdparty claimant in levy of real property? A: 1. 2. 3. 4. Summary hearing before the court which authorized the execution; Terceriaor third party claim filed with the sheriff; Action for damages on the bond posted by judgment creditors; or Independent reinvindicatory action. (Sec. 16, Rule 39)

Q: May a judgment debtor be cited in contempt in case of refusal to comply with judgment of the court? A: GR: The judgment debtor cannot be cited in contempt of court. Generally, contempt is not a remedy to enforce a judgment. XPN: 1. Refusal to perform a particular act or special judgments under Sec. 11 where he may be cited in contempt. 2. In case of the provisional remedy of support pendente lite under Rule 61, the judgment debtor may still be cited for contempt even if the decision is not a special judgment and requires the latter to pay money.
Note: If a party refuses to: a. Vacate the property the sheriff must oust the party. A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. b. Deliver the sheriff will take possession and deliver it to the wining party c. Comply the court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it.

e. EXECUTION OF SPECIAL JUDGMENTS Q: What is a special judgment? A: It is a judgment that can be complied with only by the obligor himself. It requires the performance of any other act other than payment of money, or the sale or delivery of real or personal property. Q: What is the effect of failure to comply with special judgments? A: Failure to comply with special judgment under Section 11 is punishable by contempt by imprisonment. Q: How is execution of special judgments executed? A:When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against

The remedies are cumulative and may be resorted to by the third party claimant independently of or separately from the others.
Note: The officer shall not be liable for damages for the taking or keeping of the property, to any thirdparty claimant if there is a bond filed by the winning party. If there is no bond, the sale cannot proceed. However, the judgment obligee can claim damages against a third-party claimant who filed a frivolous or plainly spurious claim, and such judgment obligee can institute proceedings therefor in the same or separate action (Sec. 16, Rule 39).

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

CIVIL PROCEDURE
Q: What are other properties ESPECIALLY exempt from execution? 4. PROPERTIES EXEMPT FROM EXECUTION A: Q: What are the properties exempt from execution? A: 1. The judgment obligors family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; Ordinary tools and implements personally used by him in his trade, employment or livelihood; 3 horses, cows, or carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; His necessary clothing and articles for ordinary personal use, excluding jewelry; Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding P100,000; Provisions for individual or family use sufficient for 4 months; The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding P300,000 in value; 1 fishing boat and accessories not exceeding the total value of P100,000 owned by a fisherman and by the lawful use of which he earns his livelihood; So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the 4 months preceding the levy as are necessary for the support of his family; Lettered gravestones; Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government; and Properties specially exempted by law. 1. Property mortgaged to DBP (Sec 26, CA 458) 2. Property taken over by Alien Property Administration (Section 9[f], US Trading with the Enemy Act) 3. Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4. Backpay of pre-war civilian employees (RA 304) 5. Philippine Government backpay to guerillas (RA 897) 6. Produce, work animals, and farm implements of agricultural lessees, subject to limitations (Sec 21, RA 6389) 7. Benefits from private retirement systems of companies and establishments, with limitations (RA 4917) 8. Labor wages, except for debts incurred for food, shelter, clothing, and medical attendance (Art 1708, NCC) 9. Benefit payments from the SSS (Sec 16 RA 1161 as amended by PDs 24, 65, and 177) 10. Copyrights and other rights in intellectual property under the former copyright law (PD 49 cf Sec 239.3, RA 8293); and 11. Bonds issued under RA1000 (NASSCO v. CIR L-17874 31 August 1963) (Regalado, F. th Remedial Law Compendium Vol. 1, 9 ed., pp. 481-482) 5. PROCEEDINGS WHEN PROPERTY IS CLAIMED BY THIRD PERSONS Q: When can you file a third party claim? A: At any time, so long as the sheriff has the possession of the property levied upon, or before the property is sold under execution. Q: What are the requisites for a claim by a third person? A: Requisites for a claim by a third person: 1. 2. 3. The property is levied; The claimant is a person other than the judgment obligor or his agent; Makes an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title; and Serves the same upon the officer making the levy and the judgment obligee.

2.

3.

4. 5.

6. 7.

8.

9.

10. 11.

12.

13.

But no article or species of property mentioned above shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage hereon (Sec. 13).

4.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What is the procedure for a 3rd party claim? A: 3rd party should make an affidavit of his title thereto, or right of possession thereof, and should serve such affidavit upon the sheriff and a copy thereof to the judgment obligee. Q: What is the duty of the officer if the property sought to be levied on is claimed by another person and proper proof of ownership or possession is served upon the officer making levy? A: If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim. Q: Allen obtained a money judgment against Bob. After the finality of the decision, the court issued a writ of execution for the enforcement thereof. Conformably with the said writ, the sheriff levied upon certain properties under Bob's name. Cathy filed a third-party claim over said properties claiming that Bob had already transferred the same to him. Allen moved to deny the third-party claim and to hold Bob and Cathy jointly and severally liable to him. After due hearing, the court denied the third-party claim and rendered an amended decision declaring Bob and Cathy jointly and severally liable to Allen for the money judgment. Is the ruling of the court correct'? Explain. A: No, Cathy has not been impleaded as a party defendant. He cannot be held liable for the judgment against Bob without a trial. In fact, since no bond was filed by Allen, the sheriff is liable to Cathy for damages. Cathy can file a separate action to enforce his third-party claim. It is in that suit that Allen can raise the ground of fraud against Cathy. However, the execution may proceed where there is a finding that the claim is fraudulent (Tanongan v. Samson, G.R. No. 140889, May 9, 2002). (2005 Bar Question) Q: If the writ of execution is issued in the name of the Republic of the Philippines and the property object of the levy is being claimed by a third person, is there a necessity for filing a bond? A: When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose. a. IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND REPLEVIN Certain remedies available to a third person not party to the action but whose property is the subject of execution: 1. Terceria By making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party (Sec. 14, Rule 57). Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. the sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed. Exclusion or release of property Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the application, the

2.

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

CIVIL PROCEDURE
court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (Ching vs. CA, 423 SCRA 356). Intervention This is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19). Accion Reinvindicatoria The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or in a separate action. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case. 6. RULES ON REDEMPTION Q: Is the right of redemption available to any type of property? A: No. There is no right of redemption as to personal properties for the sale is absolute. Such right is available only to real properties. Q: Distinguish a judgment obligor from a redemptioner? What are their rights as regards redemption of real property?
A: JUDGMENT OBLIGOR REDEMPTIONER One who has a lien by by virtue of an attachment judgment, judgment, or mortgage on the property sold, SUBSEQUENT to the lien under which the property was sold (Sec. 27) Note: If creditors lien is prior to the judgment, he is not a redemptioner because his interests in his lien are fully protected. 1. Within 1 year from the date of registration of the certificate of sale if he is the first redemptioner, or 2. Within 60 days from the last redemption, if he be a subsequent redemptioner, provided that the judgment debtor has not exercised his right of redemption. Once he redeems, no further redemption is allowed. The person to whom redemption was made must execute and deliver to the judgment obligor a certificated of redemption.

3.

Further redemption is allowed, even after lapse of 1 year, as long as each redemption is made within 60 days after the last.

4.

Note: The period of redemption is not suspended by an action to annul the foreclosure sale. The periods for redemption are not extendible; but the parties may agree on a longer period, in such case, it would be a conventional redemption. Note: A surety is not a successor in interest. The right of redemption cannot be levied on by judgment creditor.

Q: Can redemption be made in other forms than cash? A: Yes. The rule is liberal in allowing redemption and it has been allowed in the case of a cashiers check and certified bank checks. Q: Who may redeem the real property sold? A: Real property sold, or any part thereof sold separately, may be redeemed by the following persons: 1. Judgment obligor, or his successor in interest in the whole or any part of the property; 2. Redemptioner a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold.
Note: A mortgagee can be a redemptioner even if his mortgage has not yet matured, but his mortgage contract must have been executed after the entry of judgment. Generally in judicial foreclosure sale, there is no right of redemption, but only equity of redemption. In sale of estate property to pay off debts of the estate, there is no redemption at all. Only in extrajudicial foreclosure sale and sale on execution is there the right of redemption.

Judgment obligor, or his successor in interest (e.g. transferee, assignee, heirs, joint debtors)

Within 1 year from the date of registration of the certificate of sale.

Q: What are the requirements to enable the redemptioner or judgment obligor to redeem the real property? A: The judgment obligor, or redemptioner, may redeem the property from the purchaser at any

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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time within 1 year from the date of the registration of the certificate of sale by paying the purchaser: 1. the amount of his purchase; 2. amount of any assessments or taxes which the purchaser may have paid after purchase; 3. if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien; and 4. With 1 percent per month interest up to the time of redemption. Q: Is the bona fide tender or delivery of the redemption price required in offer to redeem? A: GR: The offer to redeem must be accompanied with a bona fide tender or delivery of the redemption price. XPN: The right to redeem is exercised through the filing of a complaint to redeem in the courts. Q: What are the rights of a judgment debtor? A: 1. To remain in possession of the property until the expiration of period of redemption; To collect rents and profits until the expiration of period of redemption (Sec. 32); To use the property in the same manner it was previously used; To make necessary repairs; and Use it in the ordinary course of husbandry (Sec. 31). 3. 2. 3. 4. Reversal or setting aside of judgment; The fact that the property was exempt from execution; or If a third person has vindicated his claim to the property (Sec. 34).

Q: What is the remedy of purchaser of real property sold on execution in the above situations? A: 1. 2. Bring an action against the judgment creditor; File a motion for revival of judgment in his name against the judgment debtor; or Bring an action to recover possession of property.

7. EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS UNSATISFIED Q: What is the effect when the judgment was returned unsatisfied? A: 1. The judgment creditor may cause examination of the judgment debtor as to his property and income (Sec. 36) (2008 Bar Question); The judgment creditor may cause examination of the debtors of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession (Sec. 37); If the court finds, after examination, that there is property of the judgment debtor either in his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment (Sec. 37); If the court finds the earnings of the judgment debtor are more than sufficient for his familys needs, it may order payment in fixed monthly installments (Sec. 40); The court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property (Sec. 41); If the court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor, mortgagee, or otherwise, and his interest can be ascertained without controversy, the court may order the sale of such interest (Sec. 42); and

2.

2.

3. 4. 5.

3.

Q: When is the purchaser entitled to possession and conveyance of the property sold on execution? A: The purchaser is entitled to possession and conveyance of the property if no redemption is made within one (1) year from the date of the registration of the certificate of sale (Sec. 33). Q: What are the instances when the purchaser may recover the purchase price from the judgment obligor?

4.

5.

6. A: 1. If the purchaser or his successor-ininterest fails to recover possession of the property sold on execution sale; or Is evicted due to: 1. Irregularities in the proceedings concerning the sale;

2.

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

CIVIL PROCEDURE
7. If the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property, or denies the debt, the court may authorize the judgment creditor to institute an action to recover the property, forbid its transfer and may punish disobedience for contempt (Sec. 43). A: 1. If judgment or final order is on a specific thing, the same is conclusive upon the title to thing (Sec. 47, Rule 39). With respect to a probate of a will, or the administration of the estate of a deceased person, the same is conclusive upon the will or administration but the probate of the will or the granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate and not a conclusive presumption of death (Sec.47, Rule 39). With respect to the personal, political or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the condition, status or relationship (Sec.47, Rule 39). In other cases, if the judgment be with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, the judgment or final order is conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and the same capacity, relationship (Sec.47, Rule 39). In any other litigation between the same parties or their successors in interest, that only is deemed to be adjudged in a former judgment or final order which appear upon its face to have been adjudged, or which was actually and necessarily included therein or necessary thereto (Sec.47, Rule 39).

2.

Q: Anna, a Manila resident, sued Betsie resident of Malolos, Bulacan, in the RTC Manila for a sum of money. The trial court rendered judgment holding Anna liable for the entire amount prayed for in the complaint. After the judgment had become final, a writ of execution was issued by the court. As the writ was returned unsatisfied, Anna filed a motion for an order requiring Betsie to appear before it and be examined regarding his property and income. How should the court resolve the motion? A: The RTC Manila should deny the motion. Betsie resides in Malolos, Bulacan. When a writ of execution is returned unsatisfied, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it. However, no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found (Sec. 36). (2002 Bar Question) 8. EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR Q: How is examination of obligor of judgment obligor done? A: Court may order to be examined any person or corporation who has property of the debtor in order to bind the credits due to debtor.
Note: The garnishee becomes a forced intervenor, requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation). Note: A party or other person may be compelled, by an order of subpoena, to appear before the court or commissioner to testify as provided in Sec 36 & 37. Failure to obey may be punished by contempt. If examination is before a commissioner, he must take it in writing and certify it to the court. All examinations and answers must be under oath.

3.

4.

5.

Q: When the judgment is final and executory, is it always ministerial upon the court to order execution? A: GR: Trial Court has ministerial duty to order execution of final and executor judgments. It cannot refuse execution and is compellable by mandamus. XPN: (Same as grounds to Quash writ of execution) 1. Change in the situation of the parties which makes the execution inequitable or unjust; 2. Writ of execution varies judgment; 3. Controversy was never submitted to the judgment of the court; 4. Execution is sought against property exempt from execution;

9. EFFECT OF JUDGMENT OR FINAL ORDERS Q: What is the effect of final judgments?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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5. Terms of the judgment are not clear and leaves room for interpretation; 6. Writ of execution is improvidently issued; 7. Writ of execution is defective in substance; 8. Writ of execution is issued against the wrong party; 9. Judgment debtor has been paid or otherwise satisfied; and 10. Writ of execution was issued without authority.
Note: In the above exceptions, remedy is certiorari (Rule 65)

Q; Discuss the effect of judgment under paragraph A and B of Section 47 A:


In Rem (Par. a) The decision is conclusive upon the title of the thing, the will or administration or the condition, status or relationship of the person. i.e. land registration cases In Personam (Par. b) The judgment or final order is conclusive between parties and their successors-in-interest, litigating for the same thing and under the same title and in the same capacity. i.e. actionreinvindicatoria

Q: When may execution of final and executory judgment be enjoined? A: 1. 2. Upon fling of a petition for relief from judgment; Attack against a judgment which is void for lack of jurisdiction, or obtained through fraud; On equitable grounds; and In cases falling under the 10 exceptions above.

Note: In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud or clear mistake of law or fact. (par. 4, Sec. 48)

Q: What are the requisites of res judicata? A: 1. 2. 3. 4. Former judgment or order must be final and executory; Court has jurisdiction over subject matter and parties; Former judgment or order was on merits; and Identity of parties, subject matter, and cause of action between first and second action. (TEST: determine identity if cause of action)

3. 4.

Note: Judgment novated by a subsequent agreement cannot be executed (e.g. agreement entered into by the parties other than terms of payment). Note: judgment for support is not final in a sense that it cannot be modified. Support depends not only on the varying conditions affecting the ability of the oblgor to pay, but also upon the ever-changing needs of the beneficiary himself.

10. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS Q: What is the effect of a foreign order? A: 1. 2. Against a specific thing conclusive upon title to the thing. Against a person presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

Q: Can final and executory judgments be modified? A: GR: Final and executor judgments cannot be amended or modified. Any amendment which substantially affects a final and executor judgment is null and void for lack of jurisdiction. XPN: Judgment may be modified as to: 1. Clerical errors or mistakes - errors not as a result of exercise of judicial functions 2. To clarify ambiguity; or 3. To enter nunc pro tunc orders to make a present record of an order which the court rendered at a previous terms but, by inadvertence has not been entered.

Note: In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud, or clear mistake of law or fact.

Q: How is a foreign judgment enforced? A: By filing an action based on said judgment; foreign judgment is presumed to be valid and binding.
Note: to recognize a foreign judgment, raise the foreign judgment as res judicata in the defense (not in a separate motion)

112

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

CIVIL PROCEDURE

R. PROVISIONAL REMEDIES Q: Distinguish the different kinds of provisional remedies. A:


Preliminary Attachment (Rule 57) Personal and real property Preliminary Injunction (Rule 58) Receivership (Rule 59) Subject Matter Particular act(s) Personal property capable of manual delivery Jurisdiction (Court which can grant it) Personal and real property Money or other forms of support GR: Family Court XPN: In criminal actions, as long as the civil aspect is tried together with it , the RTC or MTC having jurisdiction may also issue this remedy.(e.g Art. 345 (3) RPC, in crimes against chastity, In every case to support the offspring..) Replevin (Rule 60) Support Pendente Lite (Rule 61)

SC, CA, RTC, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

SC, CA, RTC, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

SC, CA, RTC, Family Court, Metropolitan, Municipal and Municipal Circuit Trial Courts

RTC, Family Court, Metropolitan, Municipal, and Municipal Circuit Trial Courts

Who may grant it Court where action is pending, the CA or Only the Court where the SC, or a member Courts where the action is pending; thereof, even if action action is pending, Lower court, CA or SC is pending in the Only the court the CA or the SC provided action is lower court. where action is (Sec. 2) pending in the same Appellate court may pending. court which issues the allow application for injunction (Sec. 2) receivership to be decided by the court of origin (Sec. 1) When available At any stage of the At the At any stage of the At any stage of the proceeding and even commencement action but before action but before after finality of of the action but entry of final judgment or final order judgment; anytime before answer is judgment (Sec. 1) (Sec. 1) prior to satisfaction of filed (Sec. 1) judgment How applied for File verified application File verified and applicants bond; if application and application is included in applicants bond; the initiatory pleading, application may also File affidavits and File affidavits and the adverse party should be included in applicants bond applicants bond be served with summons initiatory pleading in (Sec. 3) (Sec. 2) together with a copy of actions for the initiatory pleading and foreclosure of the applicants affidavit mortgage (Secs. 1 and and bond (Sec.4) 2) Purpose(s) 1. To seize the To require a party or a To place the To recover property of the court, agency or a property subject of possession of adverse party in person to refrain from an action or personal

Court of origin and appellate court. (Ramos v. CA, GR No. L-31897, June 30, 1972)

At the commencement of the action or at any time prior to the judgment or final order (Sec. 1)

File verified application; bond not required (Sec. 1)

To compel adverse party to provide support while the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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advance for the satisfaction of judgment that may be recovered in cases falling under Sec.1, Rule 57. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. (Quasha v. Juan,G.R.No.L54158, Nov. 19, 1982) doing a particular act or to require the performance of a particular act To prevent future injury and maintain the status quo. (Kencht v. CA, G.R. No. 97962, Nov. 17, 1993) proceeding under the control of a third party for its preservation and administration litis pendentia and to protect the rights of all the parties under the direction of the court. property. (1999 Bar Question) action is pending in court.

2.

1. GR: In an action for the recovery of a specified amount or damages. XPN: a. moral and exemplary b. against a party who is about to depart from the Philippines with intent to defraud his creditors; 2. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or by any other person in a fiduciary capacity, or for a willful violation of duty; 3. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property has been concealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person; 4. In an action against a party who has been guilty of fraud in contracting the debt or incurring the

1. That the applicant is entitled to the relief demanded which consists in restraining the commission or continuance of the act complained of, or in requiring the performance of an act for a limited period or perpetually 2. Commission, continuance or nonperformance of the act during the litigation would probably work injustice to the applicant; or 3. Party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act probably in violation of the rights of the applicant respecting the subject of the action and tending to render the judgment ineffectual (Sec. 3)

Ground(s) 1. When the applicant has an interest in the property or fund subject of the proceeding and such property is in danger of being lost, removed or materially injured unless a receiver is appointed; 2. In foreclosure of mortgage, when the property is in danger of being wasted or dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or that it has been agreed upon by the parties; 3. After judgment, to preserve the property during the pendency of an appeal or to dispose of it according to the judgment or to aid execution when execution has been returned unsatisfied of the judgment obligor refuses to apply

Applicant is: 1. The owner of the property claimed; or 2. Entitled to the possession thereof but the property is wrongfully detained by the adverse party (Sec. 2)

When equity and justice require, having due regard to the probable outcome of the case and such other circumstances as may suggest the reasonability of granting support pendente lite

114

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

CIVIL PROCEDURE
obligation or in its performance 5. In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; 6. In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; or 4. When appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation (Sec. 1). Whether principal or ancillary action Ancillary to: 1. Action for support; or 2. In a criminal action where civil liability includes support for the offspring provided the civil aspect thereof has not been waived, reserved or instituted prior to its filing.

Ancillary remedy

Principal action/ ancillary remedy

Principal action/ ancillary remedy

Principal action/ ancillary remedy

Effectivity During the pendency of the case unless earlier discharged or quashed by the court During the pendency of the case unless earlier discharged or quashed by the court Until discharged by the court During the pendency of the case unless the defendant files a redelivery bond. During the pendency of the case.

Requirement of Hearing GR: Required XPN: Great or Not required; may be irreparable injury would issued ex parte (2001 result / extreme urgency Required Bar Question) and applicant will suffer grave injustice and irreparable injury (Sec. 5) Bond Requirement Bond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged to the adverse party and all damages that he may sustain by reason of the granting of provisional remedy prayed for, if the court shall finally adjudge that the applicant was not entitled thereto (Sec. 4, Rule 57; Sec. 4, Rule 58, Sec. 2, Rule 59 ) 2 bond requirement for receivership: 1. Filed by the applicant; and 2. Filed by the receiver. No Yes

Not required ; may be issued ex parte

Required Within 3 days after comment is filed or after expiration of period of filing

Bond executed to the adverse party in double the value of the property, for the return of the property to the adverse party if such return be adjudged and for the payment to the adverse party of such sum as he may recover from the applicant in the action (Sec. 2)

No bond required.

Immediately Executory Yes No Discharge of Remedy By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

Yes Not applicable.

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of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court or to the value of the property if with respect to a particular property to secure the payment of any judgment that the adverse party may recover in the action. Counter Bond Filing of counter-bond made only upon showing that the issuance or continuance thereof would cause irreparable Amount of Amount of counterCash deposit may be damage to the party or counter-bond to bond should be made in lieu of the person enjoined while the Not applicable. be fixed by the double the value of counter-bond (Sec. 12) applicant can be fully court (Sec. 3) the property (Sec. 5) compensated for such damages as he may suffer; counter-bond alone will not suffice to discharge the injunction (Sec. 6) Other Grounds For Discharge 1. Improper or irregular issuance or enforcement or 1. Plaintiffs bond is 1. Appointment insufficiency of bond. found to be 1. Insufficiency of the was obtained (Sec. 13) insufficient or application (Sec. 9) without 2. Judgment rendered defective and is sufficient cause. against attaching not replaced with 2. Other grounds (e.g. creditor (Sec. 19) proper bond; or applicants bond is 2. Bond posted by 3. Property attached is insufficient/ defective), the applicant / exempt from execution 2. Property is not upon affidavits of the receiver is (Sec. 2 & 5) delivered to the party or person insufficient (Sec. 4. Attachment is plaintiff for any enjoined 3). excessive, but the reason (Sec. 6). discharge shall be limited to the excess (Sec. 13). Damages in Case Applicant is Not Entitled Thereto or For Irregularity of the Procurement Of the Provisional Remedy When the judgment or final order finds that the person who has been Requisites: providing support 1. Owner of the property attached must file before trial or before perfection of appeal or pendente lite is not before judgment becomes executory an application for damages; liable therefor, the court 2. Party who availed of provisional remedy and his surety must be notified, showing right shall order the recipient to damages and amount thereof; and to return the amounts 3. Such damages may be awarded only after proper hearing and shall be included in the already received with judgment of the main case. interest from the date of actual payment, without If the judgment of the appellate court is favorable to the party against whom provisional prejudice to the right of remedy was effected: the recipient to obtain Application must be filed with the appellate court before the judgment of the reimbursement in a appellate court becomes executory. Appellate court may allow application to be heard separate action from and decided by the trial court. the person legally obliged to give support. If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy the award: If the recipient fails to Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. reimburse the amount, 9, Rule 59; Sec. 10, Rule 60) the person who . provided the same may Note: Any award of damages for the wrongful issuance of a provisional remedy should be seek reimbursement in a recovered in the same case. The recovery of damages cannot be had in a separate action. separate action from the person legally obliged to give such support (Sec. 7)

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

CIVIL PROCEDURE

1. NATURE OF PROVISIONAL REMEDIES Q: What are provisional remedies? A: Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for the purpose of the ultimate effects, of a final judgment in the case. Q: What is the nature of provisional remedies? A: 1. 2. Temporary measures availed of during the pendency of the action Mere incidents and are dependent upon the result of the main action

d. Production Order (Riano, Civil Procedure: A Restatement for the Bar, p. 534-536, 2009 ed.) 2. JURISDICTION OVER PROVISIONAL PROVISIONAL REMEDIES Q: Which court has jurisdiction over applications for provisional remedies? A: GR: Applications must be filed with the court having jurisdiction over the pending principal action. Even an inferior court may grant such remedy, however, where the main action is for support, the provisional remedy of support pendente lite may not be granted by a Municipal Trial Court because the main action is within the jurisdiction of the Family Court. (Riano, Civil Procedure: A Restatement for the Bar, p. 532, 2009 ed.) XPN: in criminal actions, as long as the civil aspect is tried together with it, the RTC or MTC having jurisdiction may also issue the remedy of Support pendent Lite. (e.g. Art 345 (3) RPC, in crimes against chastity, in every case to support the offspring) Q: When are these provisional remedies available? A: 1.

Q: What are the purposes of provisional remedies? A: Provisional remedies are resorted to: 1. To preserve or protect their rights or interests while the main action is pending; 2. To secure the judgment; 3. To preserve the status quo; 4. To preserve the subject matter of the action.

Q: What are the Provisional Remedies under the Rules of Court? 2. A: 1. 2. 3. 4. 5. Preliminary Attachment (Rule 57) Preliminary Injunction (Rule 58) Receivership (Rule 59) Replevin (Rule 60) Support Pendente Lite (Rule 61) 3.

Attachment, injunction and support pendent lite may be applied for before final judgment Replivin may be applied before the answer Receivership may be applied for at any stage of the action and even after final judgment. 3. PRELIMINARY ATTACHMENT

Q: What are the Other Provisional Remedies available? A: 1. 2. 3. Temporary custody over a minor Deposit in Actions for Annulment of Sale (Reyes v. Lim) Restraining order against the accused in cases of violence among immediate family members living in the same domicile and household Hold departure orders issued by Regional Trial Courts in criminal cases Interim reliefs under Writ of Amparo a. Temporary Protection Order b. Witness Protection Order c. Inspection Order

Q: What is Preliminary Attachment? A: It is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant for the same to be held by the Sheriff as security for the satisfaction of whatever judgment may be rendered in the case ( Davao Light and Power, Inc.v. CA, 204 SCRA 343).
Note: This is only an ancillary remedy. There is no separate action called preliminary attachment. It is not a distinct proceeding and is availed of within a principal action because it is a mere provisional remedy. The grant of remedy is addressed to the discretion of the court. (Riano, Civil Procedure: A Restatement for the Bar, p. 537, 2009 ed.)

4. 5.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What is attachment? the purpose of preliminary Q: What are the kinds of attachment? A: A: Preliminary attachment is designed to: 1. seize the property of the debtor before final judgment and put the same in custodialegis even while the action is pending for the satisfaction of a later judgment (Insular Bank of Asia and America v. CA, 190 SCRA 629); or 2. to enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be effected (Philippine Commercial International Bank v. Alejandro, 533 SCRA 738). Q: Who may apply for a preliminary attachment? A: It is not only the plaintiff who may apply for a writ of preliminary attachment. A defendant who asserts a counterclaim, a cross-claim or a thirdparty claim may also avail of the remedy. Sec. 1 of Rule 57 provides that the plaintiff or any proper party may have the property of the adverse party attached. (Borja v. Platon, 73 Phil. 659) (Riano, Civil Procedure: A Restatement for the Bar, p. 538, 2009 ed.) Q: What is the nature of the proceeding? A: A: Attachment is in the nature of proceeding quasi in rem (Banco- Espanol Filipino v. Palanca, 37 Phil 921) although sometimes referred to as an actionin rem (Valdemieso v. Damalerio, 451 SCRA 638, February 17, 2005).
Note: Whether in rem or quasi in rem, the legal effects are identical because in both cases jurisdiction over the person of the defendant is not required as long as the court acquires jurisdication over the res (Biaco v. Countryside Rural Bank, 515 SCRA 106). PRELIMINARY ATTACHMENT (Rule 57) It is an auxiliary remedy to give security for a judgment still to be rendered. There is no sale because the decision has not yet been rendered. Resorted to at the commencement of the action or at any time before the entry of judgment, for the temporary seizure of the property of the adverse party The proceeds of the sale, in cases allowed, are in custodial egis (Sec. 11) FINAL ATTACHMENT (Rule 39) It is a means for the execution of a final judgment. It should always be accompanied by a sale at public auction. Available after the judgment in the main action had become executor, and for the satisfaction of said judgment.

1.

2.

3.

Preliminary attachment- one issued at the commencement of the action or at anytime before entry of the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided for by the rules. Garnishment- the plaintiff seeks to subject either the property of the defendant in the hands of the third person called the garnishee, to his claim or the money in which said third person owes the defendant (RCBC v. Castro, No. L- 34548, November 29, 1988). Garnishment simply impounds the property in the possession of the garnishee and maintains the status quo until the main action is finally decided. Levy on execution- writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment.

Q: Distinguish Preliminary attachment from Final attachment.

Q: Once prayed for, is it mandatory that the court grant the writ of preliminary attachment? A: The grant of preliminary attachment is addressed to the sound discretion of the court. Q: What is the effect if a preliminary action is availed of and is granted in an action purely in rem? A: When availed of and granted in an action purely in personal, it converts the action to one that is quasi in rem. This transformation of the nature of the action dispenses with the need of acquiring jurisdiction over the person of the defendant.

The proceeds of the sale are turned over to the attaching creditor

a. GROUNDS FOR THE ISSUANCE Q: What are the groundsfor the issuance of a writ of preliminary attachment? (When is a Preliminary Attachment Proper?)

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

CIVIL PROCEDURE
A: 1. Actions for the recovery of a specified amount of money or damages XPN: o moral and exemplary damages o against a party who is about to depart from the Philippines which intent to defraud his creditors Actions for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment as such, or by other person in a fiduciary capacity, or for a willful violation of duty Actions to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person Actions against a party who has been guilty of a fraud in contracting the debt or incurring or performance the obligation upon which the action is brought Actions against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors Actions against non-residents not found in the Philippines, or person upon whom summons may be served by publication b. To answer for all costs and damages

Note: No notice to the adverse party or hearing is required as the time which the hearing will entail could be enough to enable the defendant to abscond or dispose of his property before the writ issues (Regalado, Remedial Law Compendium, Vol I, p. 624, 2007 ed.).

2.

Q: When may an order for preliminary attachment be applied? A: The writ may be applied: 1. At the commencement of the action, or 2. At any time before entry of judgment (Sec. 1, Rule 57). c. ISSUANCE AND CONTENTS; AFFIDAVIT AND BOND Q: When may an order of attachment be issued and what should be contained therein? A: (Sec. 2, Rule 57): 1. May be issued ex-parte or 2. upon motion after notice and hearing Requiring sheriff to attach as much property which is not exempt from execution, as may be sufficient to satisfy the judgment Q: What should the affidavit contain? A: The Affidavit of the applicant, or some other person who personally knows the facts, must show that: 1. sufficient cause of action exists; 2. the case is one of those mentioned in Section 1; and 3. there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. Q: What is the basis of the bonds amount? A: The bond shall answer for: 1. All the costs which may be adjudged to the adverse party; and 2. All damages which he may sustain by reason of the attachment. Q: How may the writ be issued? A: The writ of preliminary attachment may be granted by:

3.

4.

5.

6.

Note: Insolvency of defendant is not a ground for attachment especially when defendant has not been shown to have committed any act intended to defraud its creditors (Spouses Yu v. Ngo Yet Te, G.R. No. 155868, February 6, 2007).

b. REQUISITES Q: What are the requisites in the application for a writ of preliminary attachment? A: 1. Filed at the commencement of action or any time before entry of judgment (Sec. 1, Rule 57) Application by any party and affidavit showing: (Sec. 3, Rule 57) a. Sufficient cause of action b. Based on grounds mentioned in Section 1 c. No other sufficient security d. Amount due to applicant or value of property he is entitled to recover Filing of a bond (Sec. 4, Rule 57): a. Executed in favor of an adverse party in an amount fixed by court

2.

3.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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1. By motion and notice of hearing by the court in which the action is pending and may even be issued by the CA or the SC (Sec. 2, Rule 57); It may also be issued ex parte and even before summons is served upon the defendant. However, the writ may not be enforced and may not validly implemented unless preceded by a service of summons, a copy of the complaint, the application for attachment, the order of attachment and the attachment bond (Davao Light & Power Co., Inc. v. CA, 204 SCRA 343). accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party. Jurisdiction must first be acquired through valid service of summons first before a preliminary attachment may be enforced. This Rule is not necessary for the validity of the ISSUANCE of a writ of attachment (Davao Light v. CA, 204SCRA 343 (1991)), it is however necessary for the validity of the ENFORCEMENT of the writ. (Onate v. Abrogar, 241 SCRA 659 (1995)) Q: What are the cases in which contemporaneous service is not required? A: The requirement of prior or contemporaneous service of summons shall not apply where: a. the summons could not be served despite diligent efforts; b. the defendant is a resident of the Philippines temporarily absent therefrom; c. the defendant is a non-resident of the Philippines; or d. The action is in rem or quasi in rem (Sec. 5, Rule 57). e. MANNER OF ATTACHING REAL AND PERSONAL PROPERTY Q: How can a property be attached? A: (Sec. 7, Rule 57) 1. Real property, growing crops or interest therein a. File a copy of the Order of Attachment with the proper Registry of Deeds and Occupant or his agent within the province b. Description of the property c. Notice of attachment 2. Personal property capable of manual delivery sheriff taking into custody and safely keeping it, he wll issue a receipt; 3. Stocks, shares or interest Leaving copy of the writ and notice of attachment with President or Managing Agent 4. Debts and credits, bank deposits, financial interests, royalties, commission and other personal property not capable of manual delivery - Leaving copy of the writ and notice of attachment with person owing or having custody over the property 5. Interest in the estate of a decedent Leaving copy of writ and notice of attachment with: a. Executor or administrator of estate b. Clerk of Court where estate is being settled

2.

Q: What is the rationale for allowing the ex parte issuance of a writ of preliminary attatchment? A: An ex parte issuance of the writ is intended to preempt any possible disposition of property by the adverse property to the detriment of the attaching creditor and thus defeat the very purpose of attachment (Mindanao Savings & Loan Association, Inc. v. CA, 172 SCRA 480). Q: Alfred filed an action against Banjo for collection of sum of money with an ex-parte application for a writ of preliminary attachment which was granted by the trial court. A notice of garnishment was served by the sheriff upon the bank and summons was subsequently served upon Banjo. Banjo then filed a motion to dissolve the writ of preliminary attachment on the ground that the court did not acquire jurisdiction over his person as the writ was served ahead of the summons. Resolve the motion. A: The motion should be denied. The fact that the writ of preliminary attachment was served ahead of the summons did not affect the jurisdiction of the court over his person. It makes the writ unenforceable, however, all that is required is to reserve the writ. (2005 Bar Question)
Note: Where the writ of preliminary attachment had already been implemented, the subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service. (Torres v. Satsatin, G.R. No. 166759, November 25, 2009)

d. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE Q: What is the Rule on Prior or Contemporaneous Service of Summons? A: Enforcement of the writ of preliminary attachment must be preceded by or simultaneously

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

CIVIL PROCEDURE
c. Heir, devisee, or legatee; Property in custodialegis writ to the court or agency and notice to custodian. A: 1. It must be based on the following grounds: a. Writ was improperly or irregularly issued or enforced (Sec. 13, Rule 57) b. Insufficiency of bond (Sec. 13, Rule 57) c. Excessive attachment (Sec. 13, Rule 57) o Effect: Partial discharge (Regalado, Remedial Law Compendium, Vol. I, p. 683, 2005 ed.) d. No ground for attachment (Sec. 1, Rule 57) e. Property is exempt from execution (Secs 2 and 5, Rule 57) f. Judgment is rendered against the attaching creditor (Sec. 19, Rule 57) g. Dissolution of attachment 1 month next preceding the commencement of insolvency proceedings (Insolvency Law) (Feria, Civil Procedure Annotated, Vol. II, p. 305, 2001 ed.) Filing of a cash deposit or counterbond (Sec. 12, Rule 57) Notice and Hearing (Sec. 12, Rule 57)

6.

Q: What remedies are available if property is being claimed by a third person? A: 1. 2. 3. File a Third Party Complaint or terceria (Sec. 14, Rule 57) File a Motion for Intervention File an independent action to recover property

f. DISCHARGE OF ATTACHMENT OF ATTACHMENT AND COUNTERBOND Q: How is attachment discharged? A: 1. If the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment.
Note: This motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movant makes a cash deposit or files a counter- bond executed to the attaching party with the clerk of court where the application is made in an amount equal to that fixed by the court in the order of attachment exclusive of costs (Sec. 12, Rule 57).

2. 3.

Q: May an ex parte discharge of attachment be allowed? A: No. A discharge of attachment must be made only after hearing. Q: What is a counterbond? A: Counterbonds are replacements of the property formerly attached, and just as the latter, may be levied upon after final judgment (Security Pacific Assurance Corporation v. Tria- Infante, 468 SSCRA 526). Q: After Defendant AAAs properties were attached, AAA filed a sufficient counterbond and the trial court discharged the attachment. For having suffered substantial prejudice due to the unwarranted attachment, the trial court rendered a judgment ordering plaintiff to pay damages since the latter was not entitled to the attachment. AAA moved to charge plaintiffs attachment bond and such was objected to by the plaintiff and his sureties on the ground that the counter-bond lifted plaintiffs attachment bond from all liability. Rule on AAAs motion. A: AAAs motion should be granted since the filing of a counterbond does not constitute a waiver of

2.

Attachment may likewise be discharged without the need for filing of a counterbond. This is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion he proves that: a. The attachment was improperly or irregularly issued or enforced (Sec. 13, Rule 57); b. That the bond of the attaching creditor is insufficient or that the attachment is excessive and must be discharged as to the excess (Sec. 13, Rule 57); c. That the property is exempt from execution, and as such is also exempt from preliminary attachment (Sec. 2, Rule 57).

Q: What are the grounds for the discharge of a preliminary attachment?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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his right to proceed against the attachment bond. Furthermore, it is a condition in an attachment bond that applicant will pay all the costs and damages which may be adjudged to the adverse party. (DM Wenceslao and Associates, Inc. v Readycon Trading and Construction Corp., G.R. No. 154106, June 29, 2004) g. SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED Q: How can the judgment be satisfied out of the attached property? A: (Sec. 15, Rule 57) 1. Payment to judgment creditor of all sales of perishable or other property 2. If any balance remains, selling property as may be necessary to satisfy the judgment 3. Collecting from all persons having possession of credits belonging to the judgment debtor and paying the proceeds to judgment creditor
Note: If it remains unsatisfied, recovery may be had on the counterbond upon demand and notice and hearing to surety (Sec. 17, Rule 57).

4.

Ordinary execution. 4. PRELIMINARY INJUNCTION

a. DEFINITION AND DIFFERENCES: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER Q: What is an injunction? A: It is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of an action. (Riano, Civil Procedure: A Restatement for the Bar, p. 564, 2009 ed.) Q: Distinguish a main action for injunction from a preliminary injunction (2006 Bar Question). A:
INJUNCTION AS AN ANCILLARY REMEDY Exist as an incident to a principal action Seeks to preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action (CortezEstrada v. Heirs of Domingo Samut, 451 SCRA 275, February 14, 2005). INJUNCTION AS A MAIN ACTION Independent action Seeks a judgment embodying a final injunction, to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act in violation of the rights of the applicant (Almeida v. CA, 448 SSCRA 681, January 17, 2005).

Q: What is the order of satisfaction of judgment of attached property? A: Order of satisfaction of judgment of attached property: 1. Perishable or other property sold in pursuance of the order of the court; 2. Property, real or personal, as may be necessary to satisfy the balance; 3. collecting from debtors of the judgment obligor;

Q: What are the distinctions among a preliminary injunction, prohibition and status quo order? A:
Injunction Directed against a party in an action Prohibition Directed against a court, tribunal or person exercising judicial powers Issued on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction Special Civil Action / Main action Status Quo Order Directed against the adverse party and is issued by the court motu propio(Regalado, Remedial Law Compendium, Vol. I, p. 721, 2005 ed.) Cease and Desist Order intended to maintain the last, actual, peaceable and uncontested state of things preceding the controversy without requiring the doing or undoing of an act (Regalado, Remedial Law Compendium, Vol. I, p. 722, 2005 ed.)

Does not involve the jurisdiction of the court

May be the main action (final injunction) or provisional remedy

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

CIVIL PROCEDURE
Q: Distinguish a preliminary injunction from a temporary restraining order. A:
Preliminary Injunction Temporary Restraining Order Specie of preliminary injunction to maintain status quo before the resolution of the writ of preliminary injunction on the ground of irreparable injury
Note: Injury is irreparable if it is not susceptible to mathematical computation (DFA and BSP v. Falcon and BCA Intl Corp., G.R. No. 176657, September 1, 2010)

b. REQUISITES Q: What are the requisites for the grant of a writ of preliminary injunction? A: 1. 2. Verified application stating the grounds for its issuance Applicant must establish that he has a right to relief, a right in esse or a right to be protected and the act against which the injunction is directed is violative of such right Bond executed in favor of the person enjoined to answer for all damages Service of summons XPNs: a. Summons could not be served personally or by substituted service b. Adverse party is a resident but is temporarily absent from the Philippines c. Adverse party is a non-resident Notice and hearing (Sec. 5, Rule 58) c. KINDS OF INJUNCTION Q: What are the classes of injunction? A:
Preliminary Injunction (Ancillary Remedy) Order granted at any stage of the action or proceeding prior to the judgment or final order, requiring a party or a court, agency, or a person to refrain from or to perform particular act or acts (Sec. 1, Rule 58) GR: Bond is required XPN: Exempted by court (Sec. 4, Rule 58) Final Injunction (Injunction as main action) Issued after final judgment of the case permanently restraining the defendant or making the preliminary injunction permanent (Sec. 9, Rule 58) No bond is required

3. 4.

Effective during the pendency of the action unless earlier dissolved Note: The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasijudicial agency shall decide the main case or petition within six (6) months from the issuance of the writ. (Sec. 5, Rule 58 as amended by A.M. No. 07-7-12-SC)

Duration (non-extendible): (Sec. 5, Rule 58) 1. If issued by RTC/MTC 20days from notice to person restrained 2. If issued by CA 60 days from notice 3. If issued by SC until lifted
Note: Prohibition against the renewal applies only if the same is sought under and by reason of the same ground for which it was originally issued (Regalado, Remedial Law Compendium, Vol. I, p. 725, 2005 ed.) Note: TRO is deemed automatically lifted after the expiration of the effectivity period

5.

Notice and hearing always required (Sec. 5, Rule 58)

Can be issued to compel the performance of an act

GR: Notice and hearing required XPN: To prevent urgent / irreparable injury, TRO may be issued by an Executive Judge or Presiding Judge for 72hours and a summary hearing be subsequently conducted within such period Cannot be issued to compel the performance of an act

Q: What are the kinds of preliminary injunction? A:


Preventive / Prohibitory Injunction Requires a person to refrain from doing an act To preserve status quo Mandatory Injunction Requires the performance of a particular act To restore status quo

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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d. WHEN MAY WRIT BE ISSUED Q: When may a writ for preliminary injunction be issued? A: 1. In petitions for relief from judgment entered through FAME; 2. In petitions for certiorari, prohibition, and mandamus; 3. In actions for annulment of judgments obtained through fraud; 4. In actions for annulment of judgment which are not patent nullities ( want of jurisdiction, lack of due process of law) (BancoEspanol v. Palanca, 37 Phil. 921); 5. To restrain continued breach of valid negative obligation; 6. To enjoin repeated trespass on land; 7. To restrain city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such; 8. To restrain voting of disputed shares of stocks; 9. To restrain sheriff from selling property on execution not belonging to judgment debtor; 10. To restrain criminal prosecutions as an exception, in the following cases: a. To afford adequate protection to constitutional rights of accused; b. When there is a prejudicial question which is sub judice; c. Prosecution under an invalid law; d. Double jeopardy is clearly apparent; e. Court wthout jurisdiction over the offense; f. Case of persecution rather than prosection; g. Charges manifestly false and motivated by lust for vengeance; h. There is clearly no prima facie case against accused and motion to quash on said ground is denied; and i. Preliminary injunction issued by SC to prevent threatened unlawful arrest of petitioners. Q: In what actions will a preliminary injunction not lie? A: 1. Against Department of Public Works and Highways to stop government infrastructure projects (Secs. 3 & 4, RA8975) XPNs: a. Extreme urgency b. Matter involves a constitutional issue c. Grave injustice and irreparable injury will arise d. Supreme Court may issue the writ of preliminary injunction
Note: Injunctive writs cannot be issued against any person or entity involved in the execution, implementation and operation of government infrastructure projects (P.D. 1818).

2. 3. 4.

5. 6.

7.

8.

9.

Act/s perpetrated outside the inferior courts territorial jurisdiction Against judgments of coordinate courts and quasi judicial bodies of equal rank Issuance will effectively dispose of the main case without trial and/or due process (Boncodin v. Natl Power Corporation Employees Consolidated Union, G.R. No. 162716, September 27, 2006) Labor disputes In issuance of licenses, concessions as to disposition, exploitation, utilization, exploration and/or development of natural resources (Sec. 1, PD605) Implementation of Comprehensive Agrarian Reform Program, collection of taxes, criminal prosecutions Mandatory foreclosure of a mortgage by a government financial institution (Sec. 2, P.D. 385) XPN: After hearing, it is established that 20% of outstanding arrearages is paid after the filing of the foreclosure proceedings Act/s sought to be enjoined already consummated XPN: Preliminary mandatory injunction may be availed of such that the dispossessor in forcible entry can be compelled to restore possession to the original possessor and an electric company can be compelled to provisionally reconnect the service it had disconnected. (Regalado, Remedial Law Compendium, Vol. I, p. 718, 2005 ed.)

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

CIVIL PROCEDURE
10. To transfer the property in litigation from the possession of one party to another where the legal title is in dispute and the party having possession asserts ownership thereto (Almeida v. CA and Sy, G.R. No. 159124, January 17, 2005) XPN: a. Forcible entry and unlawful detainer cases preliminary mandatory injunction may be issued (Sec. 15, Rule 70) 11. Generally, injunction will not be granted to take property out of the possession of one party and place it in another whose title not clearly established; 12. When action for damages would adequately compensate injuries caused (Golding v. Balatbat, 36 Phil.941); 13. To prevent directors from discharging their offices and restoring former directors; 14. To restrain criminal prosecution where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction.
Note: Only the SC may issue injunction against the government, officials or any person or entity whether public or private acting under the government direction, to restrain, prohibit, or compel acts pursuant to the implementation and completion of infrastructure projects. (Sec 3, RA 8975)

1. 2.

3.

4.

Insufficiency of application for injunction or restraining order Issuance or continuance of injunction or restraining order causes irreparable injury while applicant may be fully compensated for damages by bond Extent of injunction or restraining order is too great Effect: modification Insufficiency or defective bond (Sec. 7, Rule 58).

Note: Filing of verified motion and bond as well as hearing is required

g. DURATION OF TRO Q: What is the duration of a TRO? A: 1. 20 days from notice : if great or irreparable injury would result to the applicant before the matter can be heard on notice. 72 hours from issuance (issued ex parte) : if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury.

2.

e. GROUNDS FOR ISSUANCE Q: What are the grounds for the issuance of a preliminary injunction? A: (Sec. 3, Rule 58) 1. Clear legal right of the applicant 2. The commission, continuance or nonperformance of the act or acts complained of will cause injustice to the applicant 3. Person against whom injunction is sought is doing, threatening, attempting, procuring or suffering to do some act or acts in violation of applicants rights tending to render the judgment ineffectual. f. GROUNDS FOR OBJECTION, DISOLUTION OF INJUNCTION OR RESTRAINING ORDER Q: What are the grounds for objections or dissolution of injunction or restraining order? A: (Sec. 6, Rule 58)

Note: after conducting a summary hearing within the 72 hours period until the application for Preliminary injunction can be heard, an extension of the 72-hour TRo may be asked. The total period of effectivity of the TRO shall not exceed 20 days including the 72 hours. While the efficacy of the TRO is ordinarily nonextendible, and the trial courts have no discretion to extend it considering the mandatory tenor of Rule 58, there is no reason to prevent a court from extending the 20-day period when it is the parties themselves who ask for such extension or for the maintenance of the status quo. (Federation of Land Reform Farmers of the Philippines v. CA, 246 SCRA 175 (1995)). Note: a TRO issued by the trial court or CA expires automatically upon the lapse of the 20 day period and 60 day period respectively. There is no need for any judicial declaration of dissolution (Paras v. Roura, 163 SCRA 1 (1988))

Q: What happens to the TRO if before the expiration of the 20-day period, the application for preliminary injunction is denied? A: It will be automatically vacated. (Bacolod City Water District v. Labayan, G.R. No. 157494, December 10, 2004)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Is a second application for preliminary injunction allowed? A: A second application for injunction, which rests in the sound discretion of the court, will ordinarily be denied unless it is based on facts unknown at the time of the first application. (Reyes v. Court of Appeals and Sun Life Insurance Office, Ltd., G.R. No. 87647, May 21, 1990). h. IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT INFRASTRUCTURE Q: During the Marcos regime, a reclamation contract was signed between the City of Mandaue and MALAYAN. However, that transaction appeared to be unauthorized. After sometime a confirmatory agreement was entered by the parties whereby MALAYAN bound itself to undertake the project at its own expense. After the People power, the plan was resubmitted to the President for approval, the City of Mandaue however started negotiated and contracted with FF Cruz & Co. for the reclamation project. MALAYAN filed a protest with the OP. The Executive Secretaery disapproved the project with MALAYAN, this prompted MALAYAN to file with the RTC a petition for prohibitory and mandatory preliminary injunction. RTC issued a TRO. Upon posting a bond, injunction was issued. Whether or not a writ of preliminary injunction may be issued against the government? A: Under PD 1818 and RA 8735, injunction is not available to stop infrastructure projects of the government (Malayan Integrated Industries vs. CA, GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre and Stevedoring Services, 475 SCRA 426). This includes arrestre and stevedoring services.
Note: Section 1 of PD 1818 provides that:No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation.

i. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO ATTACHMENT Q: What is the rule on prior or contemporaneous service of summons in relation to attachment? A: No levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by theservice of summons, together with a copy of the complaint, the application forattachment, the applicants affidavit and bond, and the order and writ ofattachment, on the defendant within the Philippines. The requirement of prior or contemporaneous service of summons shall not apply in the following instances: 1. Where the summons could not be served personally or by substituted servicedespite diligent efforts; 2. The defendant is a resident of the Philippines who is temporarily out of the country; 3. The defendant is a non-resident; or 4. The action is one in rem or quasi in rem (Sec. 5). 5. RECEIVERSHIP Q: What is Receivership? A: Receivership is a provisional remedy wherein the court appoints a representative to preserve, administer, dispose of and prevent the loss or dissipation of the real or personal property during the pendency of an action. It may be the principal action itself or a mere provisional remedy; it can be availed of even after the judgment has become final and executory as it may be applied for to aid execution or carry judgment into effect. Q: Who is a receiver? A: Person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the discretion of the court. Q: Can a party to the action be appointed as a receiver? A: GR: Cannot be appointed

126

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

CIVIL PROCEDURE
XPN: Consented to by all parties
Note: A clerk of court cannot be appointed as a receiver (Abrigo v. Kayanan, G.R. No. L-28601, March 28, 1983)

b. REQUISITES Q: What are the requisites in the application for receivership? A:

Q: Which court may appoint a receiver? A: (Sec. 1, Rule 59) 1. Court where action is pending 2. Court of Appeals or Supreme Court or a member thereof
Note: During pendency of appeal, appellate court may allow receiver to be appointed by court of origin

1.

2.

Q: What is the effect of a contract executed by a receiver without court approval? A: Such contract will constitute his personal undertakings and obligations (Pacific Merchandising Corp. v. Consolacion Insurance & Surety Co., G.R. No. L-30204, October 29, 1976)
Note: Receivership cannot be effected on a property in custodialegis (LizarragaHnos. V. Abada, 40phil124). But a receiver can be appointed where a property in custody of an administrator or executor is in danger of imminent loss or injury. (Dolor v. Sindian, G.R. No. L27631, April 30, 1971)

3. 4. 5.

Party applying for receivership has an existing interest in the property in litigation Verified application filed at any stage of the proceedings even after final judgment, prior to the satisfaction of judgment (Sec. 1, Rule 59) Posting of bond (Sec. 2, Rule 59) Grounds stated in Sec. 1, Rule 59 Receiver must be sworn to perform his duties faithfully

c. REQUIREMENTS BEFORE ISSUANCE OF AN ORDER Q: What is the requirement before an order of appointment may be issued? A: The applicant must file a bond executed in favor of the party against whom the application is presented, in an amount fixed by court, to pay damages in case receivership is procured without sufficient cause. (Sec. 2, Rule 59)
Note: The court may require an additional bond for further security. (Sec. 2, Rule 59)

a. CASES WHEN A RECEIVER MAY BE APPOINTED Q: In what cases may a receiver be appointed? A: (Sec. 1, Rule 59) 1. Applicant has an interest in the property or fund subject of the action is in danger of being lost, removed, or materially injured 2. Mortgaged property is in danger of being dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or 3. Stipulation in the contract of mortgage 4. To preserve the property after judgment during the pendency of the appeal or to dispose it according to judgment 5. To aid execution when execution has been returned unsatisfied 6. Judgment debtor refuses to apply his property in satisfaction of the judgment or to carry on the judgment 7. Appointment of receiver is most convenient and feasible means of preserving, administering or disposing of the property in litigation

d. POWERS OF A RECEIVER Q: What are the powers of a receiver? A: (Sec. 6, Rule 59) 1. Power to bring and defend actions in his own name
Note: No action may be filed by or against a receiver without leave of court which appointed him

2. 3. 4.

5. 6. 7. 8.

9.

Take and keep possession of the property in controversy Receive rents Collect debts due to himself as receiver or to the fund, property, estate, person or corporation of which he is a receiver Compound for and compromise debts collected Make Transfers Pay outstanding debts Divide money and other property that shall remain among the persons legally entitled to receive the same Invest funds in his hands only by order of the court upon written consent of all the parties to action;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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10. Other acts which the court may authorize
Note: Funds in the hands of a receiver may be invested only by court order and written consent of all parties to an action.

e. TWO KINDS OF BONDS Q: What is the 2-bond requirement in receivership? A: 1. 2. Bond posted by the applicant (Sec. 2, Rule 59) Bond posted by receiver appointed (Sec. 4, Rule 59) f. TERMIINATION OF RECEIVERSHIP Q: What are the grounds for the discharge of receiver? A: 1. Posting of counterbond by adverse party (Sec. 3, Rule 59)
Note: Where counterbond is insufficient or defective, receiver may be re-appointed (Sec. 5, Rule 59)

in specie, the recovery of damages being only incidental (Am. Jur. 6). Replevin may be a main action or a provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. The main action for replevin is primarily possessory in nature and generally determines nothing more than the right of possession.
Note: A writ of replevin may be served anywhere in the Philippines (Regalado, Remedial Law Compendium, Vol. I, p. 749, 2005 ed.)

Q: Distinguish attachment. A:

replevin

from

preliminary

Replevin Recovery of possession of personal property is the principal relief and damages are incidental This is available before defendant files an answer

2.

3. 4. 5.

Appointment of receiver was made without sufficient cause (Sec. 3, Rule 59) Insufficient or defective applicants bond (Sec. 5, Rule 59) Insufficient or defective receivers bond (Sec. 5, Rule 59) Receiver no longer necessary (Sec. 8, Rule 59)

Q: How is receivership terminated? A: (Sec. 8, Rule 59) 1. By court motupropio or on motion by either party 2. Based on the following grounds: a. Necessity for receiver no longer exists b. Receiver asserts ownership over the property (Martinez v. Grao, G.R. No. L-25437, August 14, 1926) 3. After due notice and hearing to all interested party 6. REPLEVIN Q: What is replevin? A: Replevin is a proceeding by which the owner or one who has a general or special property in the thing taken or detained seeks to recover possession

Available only where defendant is in actual or constructive possession of personal property involved Extends only to personal property capable of manual delivery Used to recover personal property even if not being concealed, removed or disposed Cannot be availed of when property is in custodialegis(under attachment) or seized under search warrant Property of GOCCs cannot be reached

Preliminary Attachment Available even if recovery of personal property is only an incidental relief Available from commencement but before entry of judgment May be resorted to even if personal property is in the custody of a third person Extends to all kinds of property whether real, personal or incorporeal Recover property being concealed, removed or disposed Can be resorted to even if property is in custodialegis

Sheriff takes possession of the property subject of the replevin and hold the same for a period of 5 days after which said property will be delivered to the party who obtained the writ. Bond to be posted is double the value of the property sought to be recovered

Properties of GOCCs may be reached if utilized in its proprietary function. Sheriff does not take possession of the property attached except contructively placing it under custodia legis.

Bond amount is fixed by court and does not exceed the claim or value of the property to be attached

128

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

CIVIL PROCEDURE
Note: These remedies cannot be availed of in the same case.

1.

Q: To be able to secure financial accommodations from Makati Leasing, Wearever discounted and assigned several receivables under a Receivable Purchase Agreement. To secure the collection of the receivables assigned, private respondent executed a chattel mortgage over certain machineries which were bolted to the ground. Upon default Makati Leasing move for extrajudicial foreclosure of the mortgage properties and filed an action for replevin which was granted by the court. Can the machineries bolted to the ground be a subject of replevin? A: Machineries bolted to the ground are real properties that may not be the subject to replevin (Makati Leasing and Finance Corporation v. Wearever Textile Mills Inc. GR No L- 58469, May 16, 1983). a. WHEN MAY WRIT BE ISSUED Q: When may a writ of replevin be issued? A: This may only be obtained when the defendant in the action has not yet filed his answer to the complaint where it is necessary to: 1. Protect plaintiffs right of possession to property 2. Prevent defendant from destroying, damaging or disposing of the property Q: Can a writ of replevin be issued anywhere in the Philippines? A: Under the Resolution of the Supreme Court enbanc dated January 11, 1983, providing for the interim rules and guidelines relative to the implementation of BP 129, a writ of replevin like the one issued in the present case may be served anywhere in the Philippines (Fernandez v. International Corporate Bank now Union Bank of the Philippines, GR No 131283, October 7, 1999). b. REQUISITES Q: What are the requisites in applying for replevin? A: 1. 2. Filing of Affidavit by any party before an answer is filed Posting of bond double the value of the property

2.

3.

4.

Applicant is the owner of the property claimed, particular description of such, entitlement to possession Property is wrongfully detained, alleging cause of detention according to applicants knowledge, information and belief Property has not been taken for tax assessment or fine, or seized by writ of execution, preliminary attachment, in custodialegis, if so seized, that it is exempt or should be released from custody Actual market value of the property

c. AFFIDAVIT AND BOND; REDELIVERY BOND Q: What are the contents of the affidavit? A: Affidavit, alleging: 1. That the applicant is the owner of property claimed, describing it or entitled to its possession; 2. That the property is wrongfully detained by the adverse party, alleging cause of its detention; 3. That the property has not been distrained or taken for tax assessment or fine or under writ of execution/attachment or placed under custodialegis or if seized, that it is exempt or should be released; and 4. The actual market value of the property. Q: What is redelivery bond? A: Bond, which must be double the value of property, to answer for the return of property if adjudged and pay for such sum as he may recover from the applicant (Sec. 2). Q: When is it required? A: It is required that the redelivery bond be filed within the period of 5 days after the taking of the property. The rule is mandatory (Yang vs. Valdez, 177 SCRA 141). d. SHERIFFS DUTY IN THE IMPLEMENTATION OF THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD PARTY Q: What are the duties of the sheriff? A: 1. Serve a copy of the court order, application, affidavit and bond upon the adverse party Take the property and retain it in his custody

Q: What are the contents of the affidavit? A: (Sec. 2, Rule 60)

2.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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3. 4. If property is concealed, make a public demand for the delivery of the property If property is not delivered, sheriff must cause the building or enclosure to be broken and take property and keep such in his custody Deliver the property to the party entitled to such upon receiving his fees.
rules that are applicable only to specific special civil actions (sec. 3) The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil action special.

5.

2. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL ACTIONS Q: Distinguish ordinary civil action from special civil action. A:
Ordinary Civil Action Must be based on a cause of action act or omission in violation of the rights of another Special Civil Action Cause of action not necessarily needed Examples: 1. Declaratory relief action is brought before there is any breach 2. Interpleader plaintiff files a complaint even if he has not sustained actual transgression of his rights Not necessarily true as in quo warranto, the venue is where the Supreme Court or Court of Appeals if the petition is commenced in any of these courts without taking into consideration the residences of the parties Some actions may be filed only in the Municipal Trial Court, some cannot be commenced therein

Q: When may a property subject of replevin be returned? A: 1. 2. 3. Filing of a redelivery bond double the value of the property Plaintiffs bond is insufficient or defective and is not replaced with a proper bond Property is not delivered to the plaintiff for any reason

Q: What are the remedies of a third person whose property is taken by virtue of a replevin? A: 1. Third party shall file and serve affidavit upon sheriff and applicant stating his entitlement to possession Sheriff shall return the property to third person unless applicant files a bond (same amount as the value of the property) approved by court to indemnify the third person Claim for damages upon said bond must be filed within 120days from date of filing of the bond
Venue is determined either by the residences of the parties where the action is personal or by the location of the property where the action is real May be filed in Municipal Trial Court or the Regional Trial Court depending upon the jurisdictional amount or nature of the action May be commenced only by the filing of complaint

2.

3.

Q: Is the Rule on Prior or Contemporaneous Service of Summons observed in Replevin? A: Yes. Although the writ of replevin may be issued ex-parte, it cannot be implemented or enforced if not preceded or accompanied by a service of summons. S. SPECIAL CIVIL ACTIONS 1. NATURE OF SPECIAL CIVIL ACTIONS Q: What are Special Civil Actions? A: Since a civil action in general is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong (Sec. 3 [a], Rule 1, Rules of Court), a special civil action is generally brought or filed for the same purpose.
Note: although both types of actions are governed by the rules for ordinary civil actions, there are certain

May be commenced by the filing of a complaint or petition

Q: What are the special civil actions under the Rules of Court? A: 1. 2. 3. Interpleader (Rule 62) Declaratory relief and similar remedies (Rule 63) Review of judgments and final orders of the COMELEC and the Commission on Audit (Rule 64) Certiorari, prohibition and mandamus (Rule 65) Quo warranto(Rule 66) Expropriation (Rule 67) Foreclosure of real estate mortgage(Rule 68)

4. 5. 6. 7.

130

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

CIVIL PROCEDURE
8. 9. Partition (Rule 69) Forcible entry and unlawful detainer (Rule 70) 10. Contempt (Rule 71) Q: What are the three special civil actions which are within the jurisdiction of inferior courts? A: 1. Interpleader, provided that the amount is within the jurisdiction of such inferior court Ejectment suits Contempt
Declaratory Relief RTC
Note: It would be error to file the petition with the SC which has no original jurisdiction to entertain a petition for declaratory relief (Tano v. Socrates, G.R. No. 110249, Aug. 14, 1997)

Where the petitioner or the respondent resides

2. 3.

Q: What special civil actions are initiated by complaints and initiated by petitions? A: 1. by complaint a. interpleader b. expropriation c. foreclosure of real estate mortgage d. partition e. forcible entry and unlawful detainer by petition a. declaratory relief b. review of judgments and final orders or resolutions of the COMELEC / COA c. Certiorari d. Prohibition e. Mandamus f. Quo Warranto g. Contempt 3. JURISDICTION AND VENUE Q: Who has jurisdiction over special civil actions and where should it be filed? A:
Venue Interpleader MTC where the value of Where the plaintiff or the claim or the personal any of the principal property does not exceed plaintiff resides or where P300,000 or P400,000 in Metro Manila or where the the defendant or any of value of the real property the principal defendants resides does not exceed P20,000 or P50,000 in Metro Manila. RTC if the value exceeds the above amounts or if the subject matter is exclusively within the jurisdiction of the RTC
Note: The venue of special civil actions is governed by the general rules on venue, except as otherwise indicated in the particular rule for said special civil action.

Expropriation Land: where the RTC (incapable of property is located pecuniary estimation) (Barangay San Roque v. Personal property: the Heirs of Pastor, G.R. No. place where the plaintiff 138896, June 20, 2000) or defendant resides Certiorari, Prohibition, Mandamus RTC: if it is directed against a municipal trial court, a corporation, a board, an officer or a person. CA or with the SB, whether or not the same is in aid of the courts appellate jurisdiction. RTC, CA, SC, Sandiganbayan COMELEC in aid of its appellate jurisdiction (A.M. No. 077-12-SC) If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or the Rules, the petition shall be filed with and be cognizable only by the Court of Appeals.

2.

Jurisdiction

In election cases involving an act or omission of MTC /RTC, it shall be filed exclusively with the COMELEC, in aid of its appellate jurisdiction (Sec. 4, Rule 65) Quo Warranto With the SC, CA, or in the RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents RTC, CA, SC, SB in aid of its resides. When the appellate jurisdiction Solicitor General commences the action, it may be brought in a RTC in the City of Manila, in the CA, or in the SC (Sec. 7, Rule 66)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Note: Subject to the principle of Hierarchy of Courts

Contempt Where the charge for indirect contempt has been committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. Where such contempt has been committed against a lower court, the charge may be filed with the RTC of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the RTC of such place (Sec. 5, Rule 70) Forcible Entry Metropolitan Trial Courts; Where the property is covered by Rule on located Summary Procedure Unlawful Detainer Metropolitan Trial Courts; Where the property is covered by Rule on located Summary Procedure. Partition 1. Real property where the property RTC is located (incapable of pecuniary 2. Personal property estimation) the place where the plaintiff or defendant resides (Sec. 13, Rule 69) Foreclure of REM RTC (incapable of pecuniary estimation) Where the land or any (Barangay San Roque v. part thereof is located Heirs of Pastor, G.R. No. 138896, June 20, 2000) MTC, RTC, CA, SC

Q: Distinguish intervention. A:

between

interpleader

and

INTERPLEADER Special civil action, independent and original

Commenced by the filing of a complaint.

Filed by a person who has no interest in the subject matter of the action or if he has an interest, the same is not disputed by the claimants.

The defendants are brought into the action only because they are impleaded as such in the complaint.

INTERVENTION Not an original action but mere ancillary and depends upon the existence of a precious pending action. Commenced by a motion to intervention filed in a pending case attaching thereto the pleading- inintervention. Filed by a person who has a legal interest in any of the following: a. The subject matter of the litigation; b. The success of either of the parties; or c. The success of both of the parties; or d. He may be adversely affected by the disposition or distribution of property in the judgment. If a complaintinintervention is filed, the defendants are already parties to an existing suit not because of the intervention but because of the original suit.

a. REQUISITES FOR INTERPLEADER Q: What are the requisites in order that the remedy of interpleader may be availed of? A: 1. 2. 3. Plaintiff claims no interest in the subject matter or his claim is not disputed Two or more claimants asserting conflicting claims The subject matter must be one and the same Person in possession or obliged files a complaint. The parties to be interpleaded must make effective claims. Payment of docket and other lawful fees.

4. INTERPLEADER 4. Q: What is an interpleader? 5. A: It is a special civil action filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claims no interest, to compel the claimants to interplead and to litigate their conflicting claims among themselves. (Sec. 1, Rule 62). 6.

Note: Upon filing of complaint, the court shall issue an order requiring conflicting claimants to interplead. (Sec. 2, Rule 62)

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

CIVIL PROCEDURE
b. WHEN TO FILE Q: When must an action for interpleader be filed? A: Within a reasonable time after a dispute has arisen without waiting to be sued by claimants and before such is barred from laches. (Feria, Civil Procedure Annotated, Vol. II, p. 425, 2001 ed.) Q: Which court interpleader? has jurisdiction over an 2. 3. 4. Cross-claim Third-party complaints Responsive pleadings

Q: May an interpleader be availed of the resolve breach of undertaking? A: No. Such issue should be resolved in an ordinary civil action for specific performance or other relief (Beltran v. PHHC, G.R. No. L-25138, August 28, 1969) 5. DECLARATORY RELIEF AND SIMILAR REMEDIES Q: What is a declaratory relief?

A: Inferior courts have jurisdiction so long as the amount involved is within their jurisdiction Q: Should there be service of summons in interpleader? A: Summons and copies of the complaint and order shall be served upon conflicting claimants. (Sec. 3, Rule 62)
Note: Claimants shall have 15days to file an answer and such answer must be served upon the plaintiff and co-defendants. (Sec. 5, Rule 62).

A: A special civil action brought by a person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation, before breach or violation thereof, asking the court to determine any question of construction or validity arising, and for a declaration of his rights or duties thereunder. Q: What is the purpose of an action for declaratory relief?

Q: What is the effect of failure of a claimant to file an Answer? A: Upon motion, the court may declare such claimant in default and render a judgment barring him from any claim in respect to the subject matter. (Sec. 5, Rule 62) Q: May a motion to dismiss be filed?

A: 1. To determine any question of construction or validity or constitutionality of an instrument, ordinance or regulation Declaration of rights and duties thereunder

2. A: Yes. It may be filed by any of the claimant within the time for filing an answer. (Sec. 4, Rule 62) Q: What are the grounds for filing a motion to dismiss? A: (Sec. 4, Rule 62) 1. Impropriety of the interpleader action 2. Grounds specified under Rule 16 of the Rules of Court Q: What is the effect of filing a motion to dismiss? A: Period to file an answer is tolled and if the motion is denied, the answer may be filed within the remaining period which shall not be less than 5days from notice of denial. (Sec. 4, Rule 62) Q: What are the other allowed pleadings in an interpleader? A: (Sec. 5, Rule 62) 1. Counterclaim

Q: Distinguish declaratory judgment from ordinary judgment. A:


DECLARATORY JUDGMENT Declaratory judgment stands by itself and no executory process follows Intended to determine any question of construction or validity prior to breach or violation ORDINARY JUDGMENT Ordinary judgment involves executor or coercive relief Intended to remedy or compensate injuries already suffered

a. WHO MAY FILE THE ACTION Q: Who may file an action for declaratory relief? A: Any person:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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1. 2. Interested under a deed, will, contract or other written instrument Whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation A: Court may motupropio or upon motion refuse based on the following grounds: 1. A decision will not terminate the uncertainty or controversy which gave rise to the action 2. Declaration or construction is not necessary and proper under the circumstances
Note: Discretion to refuse does not extend to actions for reformation of an instrument quiet title or remove clouds or to consolidated ownership in a pacto de retro sale. (Regalado, Remedial Law Compendium, Vol. I, p. 769, 2005 ed.)

b. REQUISITES OF ACTION FOR DECLARATORY RELIEF Q: What are the requisites of an action for declaratory relief? A: 1. 2. Filing of Petition before there is a breach or violation Subject matter is a deed, will, contract, written instrument, statute, executive order, regulation or ordinance
Note: The enumeration of the subject matter is exclusive, hence, an action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief. (Riano, Civil Procedure: A Restatement for the Bar, p. 613, 2009 ed.)

Q: Can the court exercise discretion in application for declaratory relief? A: 1. In declaratory relief, the court is given the discretion to act or not to act on the petition. It may therefore choose not to construe the instrument sought to be construed or could refrain from declaring the rights of the petitioner under the deed or the law. A refusal of the court to declare rights or construe an instrument is actually the functional equivalent of the dismissal of the petition. On the other hand, the court does not have the discretion to refuse to act with respect to actions described as similar remedies. Thus, in an action for reformation of an instrument, to quiet or to consolidate ownership, the court cannot refuse to render a judgment (Sec. 5, Rule 63).

3. 4.

5.

6.

There is justiciable controversy Issue is ripe for judicial determination (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005), i.e. litigation is imminent and inevitable (Tolentino v. Board of Accountancy, G.R. No. L-3062, September 28, 1951) Adequate relief is not available through other means or other forms of action or proceedings (Ollada v. Central Bank, G.R. No. L-11357, May 31, 1962) The controversy is between persons whose interests are adverse;

2.

Q: To whom shall notices be given? A: 1. Solicitor general if subject matter involves: a. Validity of statute, executive order, regulation or governmental regulation b. Constitutionality of local government ordinance Prosecutor or attorney of the local government unit if subject matter involves validity of local government unit

d. CONVERSION TO ORDINARY ACTION Q: When may an action for declaratory relief be converted into an ordinary action? A: After filing of petition for declaratory relief but before the final termination of the case or rendition of judgment, a breach or violation of an instrument, statute, executive order, regulation or ordinance takes place. (Sec. 6, Rule 63) Q: Distinguish Ordinary Civil Action from Special Civil Action for Declaratory Relief. A: 1. Ordinary civil action plaintiff alleges that his right has been violated by the defendant; judgment rendered is coercive in character; a writ of execution may be executed against the defeated party.

2.

c. WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION Q: When may a court refuse to make a judicial declaration?

134

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

CIVIL PROCEDURE
2. Special civil action of declaratory relief an impending violation is sufficient to file a declaratory relief; no execution may be issued; the court merely makes a declaration. Q: Is a third-party complaint proper in an action for declaratory relief? A: No. Because in a third-party complaint, such person seeks to obtain contribution, indemnity, subrogation or other reliefs and a declaratory relief is confined merely to the interpretation of the terms of a contract. (Commission of Customs v. Cloribel, G.R. No. 21036, June 30, 1977). Q: What are the instances wherein a declaratory relief is unavailable? A: 1. To obtain judicial declaration of citizenship; 2. To establish illegitimate filiation and determine hereditary rights; 3. The subject of the action is a court decision; 4. Actions to resolve political questions; 5. Those determinative of the issues rather than a construction of definite status, rights and relations; 6. Terms of assailed ordinances are not ambiguous or of doubtful meaning; 7. In a petition to seek relief from a moot and academic question; 8. Where the contract or statute on which action is based has been breached; 9. When the petition is based on the happening of a contingent event; 10. When the petitioner is not the real party in interest; and 11. Where the administrative remedies have not yet been exhausted. e. PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES Q: What are the similar reliefs referred to under Rule 63? A: 1. 2. 3. Reformation of an instrument Quiet title to real property or to remove clouds Consolidation of ownership (Art. 1607, Civil Code)

A: It is not an action brought to reform a contract but to reform the instrument evidencing the contract. It presupposes that there is nothing wrong with the contract itself because there is a meeting of minds between the parties. The contract is to be reformed because despite the meeting of minds of the parties as to the object and cause of the contract, the instrument which is supposed to embody the agreement of the parties does not reflect their true agreement by reason of mistake, inequitable conduct or accident. The action is brought so the true intention of the parties may be expressed in the instrument (Art. 1359, CC). Q: When may an instrument be reformed? A: The instrument may be reformed if it does not express the true intention of the parties because of lack of skill of the person drafting the instrument (Art. 1363, CC). If the parties agree upon the mortgage or pledge of property, but the instrument states that the property is sold absolutely or with a right of repurchase, reformation of the instrument is proper (Art. 1365, CC). Q: What is the remedy if the consent of a party to a contract has been procured by fraud, inequitable conduct, or accident? A: Where the consent of a party to a contract has been procured by fraud, inequitable conduct or accident, and an instrument was executed by the parties in accordance with the contract, what is defective is the contract itself because of vitiation of consent. The remedy is not to bring an action for reformation of the instrument but to file an action for annulment of the contract (Art. 1359, CC).
Note: Reformation of the instrument cannot be brought to reform any of the following: 1. Simple donation inter vivos wherein no condition is imposed; 2. Wills; or 3. When the agreement is void (Art. 1666, CC).

(2) CONSOLIDATION OF OWNERSHIP Q: What is the purpose of an action brought to consolidate ownership? A: The action brought to consolidate ownership is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer but for the registration of the property. The lapse of the redemption period without the seller a retro exercising his right of redemption,

(1) REFORMATION OF AN INSTRUMENT Q: What is meant by reformation of instrument?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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consolidates ownership or title upon the person of the vendee by operation of law. Art. 1607 requires the filing of the petition to consolidate ownership because the law precludes the registration of the consolidated title without judicial order (Cruz vs. Leis, 327 SCRA 570).
Note: The concept of consolidation of ownership under Art. 1607, Civil Code, has its origin in the substantive provisions of the law on sales. Under the law, a contract of sale may be extinguished either by legal redemption (Art. 1619) or conventional redemption (Art. 1601). Legal redemption (retracto legal) is a statutory mandated redemption of a property previously sold. For instance, a co-owner of a property may exercise the right of redemption in case the shares of all the other co-owners or any of them are sold to a third person (Art. 1620). The owners of adjoining lands shall have the right of redemption when a piece of rural land with a size of one hectare or less is alienated (Art. 1621). Conventional redemption (pacto de retro) sale is one that is not mandated by the statute but one which takes place because of the stipulation of the parties to the sale. The period of redemption may be fixed by the parties in which case the period cannot exceed ten (10) years from the date of the contract. In the absence of any agreement, the redemption period shall be four (4) years from the date of the contract (Art. 1606). When the redemption is not made within the period agreed upon, in case the subject matter of the sale is a real property, Art. 1607 provides that the consolidation of ownership in the vendee shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard.

A: The plaintiff need not be in possession of the real property before he may bring the action as long as he can show that he has a legal or an equitable title to the property which is the subject matter of the action (Art. 477, Civil Code). 6. REVIEW OF JUDGMENT AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA Q: What is the constitutional basis for the application of Rule 65 under Rule 64? A: Sec. 7, Art. IX-A of the Constitution reads, unless otherwise provided by the Constitution or by law, any decision, order or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. The provision was interpreted by the Supreme Court to refer to certiorari under Rule 65 and not appeal by certiorari under Rule 45 (Aratuc vs. COMELEC, 88 SCRA 251; Dario vs. Mison, 176 SCRA 84). To implement the above constitutional provision, the SC promulgated Rule 64. Q: What is the mode of review for judgments and final orders of the COMELEC and COA? A: The petition may be brought by the aggrieved party to the Supreme Court on Certiorari under Rule 65, except otherwise provided.
Note: Rule 65 applies to the mode of review under Rule 64.Said mode of review is based on Article IX-A of the 1987 Constitution providing that the proper mode of review is certiorari under Rule 65 to be filed before the Supreme Court.Under R.A. 7902 the Court of Appeals has jurisdiction over all adjudications of the Civil Service Commission. Note: The order to comment under Sec. 6, Rule 64 in case the Supreme Court finds the petition sufficient in form and substance is equivalent to summons in ordinary civil action.

(3) QUIETING OF TITLE TO REAL PROPERTY Q: What is an action for quieting title to real property? A: This action is brought to remove a cloud on title to real property or any interest therein. The action contemplates a situation where the instrument or a record is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title to real property. This action is then brought to remove a cloud on title to real property or any interest therein. It may also be brought as a preventive remedy to prevent a cloud from being cast upon title to real property or any interest therein (Art. 476, Civil Code). Q: Is it required that the plaintiff be in the possession of the property before an action is brought?

Q: What is the period for filing certiorari as referred to in Rule 64? A: The petition for certiorari referred to in Rule 64 shall be filed within 30 days from notice of the judgment, final order or resolution of the COMELEC and the COA sought to be reviewed (Sec. 3, Rule 64).
Note: While Rule 64 makes reference to the certiorari under Rule 65, the period for the filing of the petition for certiorari assailing the judgment of the COMELEC and COA is shorter than that provided under Rule 65

136

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

CIVIL PROCEDURE
Q: When may the court issue an order to comment? A: If the SC finds the petition sufficient, respondents will be ordered to file a verified comment within 10days from notice of such order. (Sec. 6, Rule 64) Q: What are basic requirements for the petition? A: The following basic requirements must be complied with: 1. The petition shall be verified and filed in 18 copies; 2. Accompanied by clearly legible duplicate original or certified true copy of the judgment, final order or resolution subject thereof, together with certified true copies of documents relevant and pertinent to the petition; 3. The aggrieved party is named as the petitioner and shall join as respondent the commission concerned and all the persons interested in sustaining the judgment, final order or resolution. 4. The petition shall state the facts with certainty, present clearly the issues involved, set forth the grounds and brief arguments relied upon for review; 5. Petition shall state the specific material dates showing that it was filed within the period fixed by the Rules. 6. The petition shall be accompanied by proof of service of a copy thereof on the commission involved and on the adverse party, and of the timely payment of docket and other lawful fees (Sec. 5, Rule 64) 7. Certification against non forum shopping 8. Petition shall pray for a judgment annulling or modifying the questioned judgment, final order or resolution.
Note: The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition (Sec. 5, Rule 64). aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days. aggrieved party will have another 60 days within which to file the petition counted from the notice of denial.

b. DISTINCTION IN THE APPLICATION OF RULE 65 TO JUDGMENTS OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS AND OFFICERS Q: Distinguish the mode of review of judgment, final orders or resolutions of COMELEC and COA from other tribunals, persons and officers. A:
Rule 64 for COMELEC and COA Petition is based on questions of law It is a mode of appeal but the petition used is Rule 65 Involves review of judgments, final orders or resolutions of COMELEC and COA Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just The COMELEC and COA shall be public respondents who are impleaded in the action The filing of MNT or MR, if allowed under the procedural rules of the Commission, shall interrupt period fixed The court is in the exercise of its appellate jurisdiction and power of review Review of judgment, final orders or resolutions of other tribunals, persons and officer Petition is based on questions of law It is a mode of appeal Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts Filed within 15 days from notice of judgment, final order or resolution appealed from

Stays the judgment or order appealed from

a. APPLICATION OF RULE 65 UNDER RULE 64 Q: Distinguish Rule 64 from Rule 65.


A: Rule 64 Directed only to the judgments, final orders or resolutions of the COMELEC and COA; Must be filed within 30 days from notice of judgment or resolution If MR is denied, the Rule 65 Directed to any tribunal, board or officers exercising judicial or quasi-judicial functions; Must be filed within 60 days from notice of judgment or resolution If MR is denied, the

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded

Motion for reconsideration is not required

The court is in the exercise of its appellate jurisdiction and power of review

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Petition for certiorari is to be filed before the SC Petition for certiorari is to be filed only with the Court of Appeals

b. 4. 5. 6.

Q: What are the requisites for a review under Rule 64? A: 1. Filing of verified petition within 30days from notice of the judgment, final orders or resolutions (Sec. 3, Rule 64)

Certified true copy of material records of the case Statement of material dates Sworn certification against forum shopping Proof of service

Q: What are the grounds for the outright dismissal of the petition? A: (Sec. 6, Rule 64) 1. Petition is not sufficient in form and substance (Sec. 5, Rule 64) 2. Petition was filed for purpose of delay 3. Issue is unsubstantial Q: Are findings of fact reviewable under Rule 64 using Rule 65? A: The petition under Rule 64 using Rule 65, cannot question the findings of fact of the commission involved where such findings are supported by substantial evidence. Such findings when so supported by the requisite quantum of evidence are final and non- reviewable (Sec 5, Rule 64). Q: What is the effect of filing of a motion for new trial or reconsideration if allowed under the procedural rules of the commission concerned? A: It will interrupt the period for filing the petition and if motion is denied, the petition may be filed within the remaining period which shall not be less than 5days. (Sec. 3, Rule 64)

Note: Interlocutory orders must be assailed under Rule 65, not Rule 64

2.

Payment of docket and other lawful fees (Sec. 4, Rule 64)

Note: The filing of the petition for certiorari does not stay the execution of the assailed judgment, final order or resolution of the Commission unless SC directs otherwise by the issuance of a temporary restraining order or preliminary injunction. (Sec. 8, Rule 64)

Q: What are the contents of the petition? A: (Sec. 5, Rule 64) 1. Verified petition filed in 18copies joining as respondents the Commission concerned and person/s interested in sustaining the judgment, final order or resolution a quo 2. Statement of facts, issues, grounds for review, arguments and relief prayed for 3. Attachment of: a. Duplicate original or certified true copy of assailed judgment, final order or resolution

7. CERTIORARI, PROHIBITION AND MANDAMUS GENERAL MATTERS a. DEFINITIONS AND DICTINCTIONS


CERTIORARI PROHIBITION MANDAMUS Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ annulling or modifying the commanding a tribunal, commanding a tribunal, corporation, board proceedings of a tribunal, board or corporation, board or person, or person, to do an act required to be done: officer exercising judicial or quasi- whether exercising judicial, quasi- (a) When he unlawfully neglects the judicial functions when such tribunal, judicial or ministerial functions, to performance of an act which the law board or officer has acted without or desist from further proceedings specifically enjoins as a duty, and there is no in excess of its or his jurisdiction, or when said proceedings are without other plain, speedy and adequate remedy in with grave abuse of discretion or in excess of its jurisdiction, or the ordinary course of law; or amounting to lack or excess of with abuse of its discretion, there (b) When one unlawfully excludes another jurisdiction, there being no appeal or being no appeal or any other plain, from the use and enjoyment of a right or any other plain, speedy and adequate speedy and adequate remedy in the office to which the other is entitled (Sec. 3, remedy in the ordinary course of law ordinary course of law (Sec. 2, Rule Rule 65). (Sec. 1, Rule 65). 65). Directed against a person exercising to Directed against a person exercising Directed against a person exercising judicial or quasi-judicial functions judicial or quasi-judicial functions, ministerial duties or ministerial functions

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

CIVIL PROCEDURE
To correct an act performed by respondent Purpose is to annul or modify the proceedings Person or entity must have acted without or in excess of jurisdiction, or with grave abuse of discretion Extends to discretionary acts Only against a respondent exercising judicial or quasi-judicial functions To prevent the commission of an To compel performance of an act act Purpose is to stop the proceedings Purpose is to compel performance of the act required and to collect damages Person or entity must have acted Person must have neglected a ministerial without or in excess of jurisdiction, duty or excluded another from a right or or with grave abuse of discretion office Extends to discretionary and ministerial acts Only for ministerial acts

Against respondents who exercise judicial and/or non-judicial functions

Q: When does the court acquire jurisdiction over the person of the respondent in original actions for certiorari, prohibition and mandamus? A: 1. If the action is filed with the RTC Follow the rules on ordinary civil actions. Jurisdiction is acquired by the service of summons to the respondent or by his voluntary appearance in court. If the action is filed with the CA or the SC The court acquires jurisdiction over the respondents with the service on them of its orders indicating its initial action on the petition or by voluntary submission to such jurisdiction. CERTIORARI Q: What is certiorari? A: A writ issued by a superior court to an inferior court, board or officer exercising judicial or quasijudicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law.
Note: An original action for certiorari, prohibition, and mandamus is an independent action. As such, it does not interrupt the course of the principal. Note: A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected by appeal (Microsoft Corp. vs. Best Deal Computer Center Corp., GR 148029, Sept. 24, 2002; Estrera vs. CA, GR 154235, Aug. 16, 2006).

2.

3.

2.

4.

5.

the law is, what the rights of the parties are, and undertakes to determine these questions and adjudicate upon the rights of the parties. Without jurisdiction is where the respondent does not have the legal power to determine the case. Excess of jurisdiction is where the respondent, being clothed with the power to determine the case, oversteps his authority as determined by law. Grave abuse of discretion is where the respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. Plain, speedy and adequate remedy is one which promptly relieves the petitioner from the injurious effects of the judgment and the acts of the lower court or agency.

Q: Which court has jurisdiction over petitions for certiorari? A: The courts have concurrent jurisdiction, however, petitions are subject to the rule on hierarchy of courts.

Q: Does the filing of a petition for certiorari interrupt the running of the reglamentary period? A: No. The rule is the same for prohibition and mandamus since the remedies under Rule 65 are independent actions.

Q: Define the following. A: 1. Judicial function is where the tribunal or person has the power to determine what

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Distinguish certiorari under Rule 65 and certiorari under Rule 45. A:
Rule 65 Findings of fact of Court of Appeals are not conclusive or binding upon SC Involves question of jurisdiction Mode of appeal Directed against an interlocutory order of a court or where there is no appeal or any other plain, speedy or adequate remedy Filed not later than 60 days from notice of judgment, order or resolution appealed from Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding The judge, court, quasijudicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action Motion for reconsideration or for new trial is required. If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 0203-SC) Court exercises original jurisdiction Rule 45 GR: Findings of fact of CA are conclusive

principal case. It is necessary therefore, to avail of either a temporary restraining order or a writ of preliminary injunction to be issued by a higher court against the public respondent so the latter may, during the pendency of the petition, be enjoined from further proceeding with the case (sec 7, Rule 65). Q: Are the remedies of appeal and certiorari exclusive? A: GR: Where the proper remedy is appeal, the action for certiorari will not be entertained. Certiorari is not a remedy for errors of judgment. Errors of judgment are correctible by appeal; errors of jurisdiction are reviewable by certiorari. XPN: A petition for certiorari may be allowed despite the availability of the remedy of appeal when: 1. Appeal does not constitute a speedy and adequate remedy; 2. Orders were issued either in excess of or without jurisdiction; 3. For certain special considerations as for public policy or public welfare; 4. Order is a patent nullity; 5. Decision in the certiorari case will avoid future litigation; or 6. In criminal actions, the court rejects rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy (Regalado, Remedial Law Compendium, Vol. I, p. 783, 2007 ed.).
Note: When the remedy by appeal had already been lost due to petitioners own neglect or error in the choice of remedies, certiorari cannot lie. The two remedies are mutually exclusive (Meralco v. CA, G.R. No. 88396, July 4, 1990).

Involves question of law Mode of review Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts Filed within 15 days from notice of judgment, final order or resolution appealed from Stays the judgment or order appealed from

The appellant and the appellee are the original parties to the action, and the lower court or quasijudicial agency is not impleaded Motion reconsideration required for not

is

PROHIBITION
The court is in the exercise of its appellate jurisdiction and power of review. Filed with the SC

Q: What is prohibition? A: A remedy to prevent inferior courts, corporations, boards or persons from usurping or exercising a jurisdiction or power which they have not been vested by law.
Note: It is commenced by a verified petition accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping (Sec. 2, Rule 65).

Filed with the RTC, CA, Sandiganbayan or COMELEC

Q: Will the filing of a petition for certiorari interrupt the course of the principal case? Or is an injunctive relief necessary? A: The filing of a petition for certiorari against the lower court or tribunal or any other public respondent does not interrupt the course of the

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

CIVIL PROCEDURE
Q: Distinction between Prohibition and injunction A:
INJUNCTION Directed only to the party litigants, without in any manner interfering with the court. PROHIBITION Directed to court commanding it to from the exercise jurisdiction to which no legal claim. itself, cease of a it has To perform a positive legal duty and not to undo what has been done ministerial duty To prevent an act to maintain the status quo between the parties

b. REQUISITES
CERTIORARI That the petition is directed against a tribunal, board or officer exercising judicial or quasijudicial functions; PROHIBITION MANDAMUS The petition is The plaintiff has a directed against a clear legal right to tribunal, the act corporation, demanded; board or person exercising judicial, quasijudicial, or ministerial functions; The tribunal, The tribunal, It must be the board or officer corporation, duty of the has acted board or person defendant to without, or in must have acted perform the act, excess of without or in which is jurisdiction or excess of ministerial and with abuse of jurisdiction or not discretionary, discretion with grave abuse because the same amounting to of discretion is mandated by lack or excess or amounting to lack law; jurisdiction of jurisdiction; There is no There is no The defendant appeal or any appeal or any unlawfully plain, speedy and plain, speedy and neglects the adequate adequate remedy performance of remedy in the in the ordinary the duty enjoined ordinary course course of law. by law; of law. Accompanied by Accompanied by There is no appeal a certified true a certified true or any plain, copy of the copy of the speedy and judgment or judgment or adequate remedy order subject of order subject of in the ordinary the petition, the petition, course of law. copies of all copies of all pleadings and pleadings and documents documents relevant and relevant and pertinent pertinent thereto, thereto, and and sworn sworn certification of certification of non-forum non-forum shopping under shopping under Rule 46. Rule 46.

Q: What is the function of writ of prohibition? A: It is a preventive remedy. Its function is to restrain the doing of some act about to be done. It is not intended to provide a remedy for acts already accomplished. If the thing be already done, the writ of prohibition cannot undo it (Agustin v. De la Fuente, G.R. No. L-2345, Aug. 31, 1949). MANDAMUS Q: What is mandamus? A: A writ issued in the name of the State, to an inferior tribunal, corporation, board or person, commanding the performance of an act which the law enjoins as a duty resulting from an office, trust or station.
Note: It is commenced by the filing of a verified petition accompanied by certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto and a sworn certification of non-forum shopping (Sec. 3, Rule 65).

Q: Distinguish mandamus from quo warranto. A:


Mandamus Available when one is unlawfully excluded from the use or enjoyment of an office against a person who is responsible for excluding the petitioner Quo Warranto Available against the holder of an office, who is the person claiming the office as against petitioner, not necessarily the one who excludes the petitioner

Q: Distinguish mandamus from injunction. A:


Mandamus Special civil action Directed against a tribunal, corporation board, or officer Purpose is for tribunal, corporation, board or officer to perform ministerial and legal duty injunction Ordinary civil action Directed against a litigant

Q: What are the requisites of a valid certiorari? A:

For the defendant either to refrain from an act or to perform not necessarily a legal and

1. 2.

There must be a controversy; Respondent is exercising judicial or quasijudicial functions;

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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3. Respondents acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; and There must be no appeal or other plain, speedy and adequate remedy. (Sec. 1, Rule 65) A: 1. 2. 3. 4. Summary procedure Writ of Amparo Writ of Habeas Data Small claims cases (Riano, Civil Procedure: A Restatement for the Bar, p. 629, 2009 ed.)

4.

Note: Certiorari is not the remedy for a loss appeal.

Q: When is prohibition issued? A: GR: Prohibition does not ordinarily lie to restrain an act which is already fait accompli. XPN: It will lie to prevent the creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the commission of such illegality. (Tan v. COMELEC, G.R. No. 73155, July 11, 1986)
Note: Prohibition and not mandamus, is the remedy where a motion to dismiss is wrongfully denied (Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30, 1949)

Q: What are the requisites of a valid prohibition? A: Sec. 2, Rule 65 1. There must be a controversy 2. Respondent is exercising judicial, quasijudicial functions or ministerial functions 3. Respondents acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction 4. There must be no appeal or other plain, speedy and adequate remedy Q: What are the requisites of a valid mandamus? A: Sec. 3, Rule 65 1. There must be a clear legal right or duty 2. The act to be performed must be within the powers of the respondent to perform; 3. The respondent must be exercising a ministerial duty 4. The duty or act to be performed must be existing (a correlative right will be denied if not performed by the respondent) 5. There is no appeal or other plain, speedy and adequate remedy in the ordinary course of law c. WHEN PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS IS PROPER Q: What are the grounds for the filing of a petition for certiorari? A: That a tribunal, board or officer exercising judicial or quasi-judicial functions acted: 1. Without or in excess of jurisdiction 2. In grave abuse of discretion amounting to lack or excess of jurisdiction
Note: It is commenced by the filing of a verified petition accompanied by certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto and a sworn certification of non-forum shopping. (Sec. 1, Rule 65).

Q: What are the grounds for mandamus? A: 1. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; or When any tribunal, corporation, board, officer or person unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled (Sec. 3)

2.

Q: Will mandamus issue despite the availability of administrative remedies? A: GR: Mandamus will not issue when administrative remedies are still available.

XPN: 1. If the party is in estoppel (Vda. de Tan v. Veterans Backpay Commission, G.R. No. L12944, Mar. 30, 1959); or 2. Only questions of law are raised. (Madrigal v. Lecaroz, G.R. No. L-46218, Oct. 23, 1990) Q: May mandamus be used to compel a discretionary duty?

Q: When is certiorari under Rule 65 unavailable?

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

CIVIL PROCEDURE
A: Mandamus is only applicable to a ministerial duty. However, mandamus can be used to the extent of requiring the performance of a discretionary duty to act but not to require performance of such duty in a particular manner. Q: May the CA award damages in mandamus proceedings? A: Yes. The CA in resolving a petition for mandamus is authorized to award civil damages in the same petition (Vital-Gozon v. CA, G.R. No. 101428, Aug. 3 1992) d. INJUNCTIVE RELIEF Q: When is injunctive relief proper? A: The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case (Sec. 7, Rule 65). The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a Temporary Restraining Order (TRO) or a Writ of Preliminary Injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge (AM 07-7-12-SC, Dec. 12, 2007). e. CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI; PROHIBITION AND MANDAMUS DISTINGUISHED FROM INJUNCTION; WHEN AND WHERE TO FILE PETITION Q: Distinguish certiorari from appeal by certiorari.
Certiorari as a Mode of Appeal (Rule 45) Called petition for review on certiorari, is a mode of appeal, which is but a continuation of the appellate process over the original case; Seeks to review final judgments or final orders; Certiorari as a Special Civil Action (Rule 65) A special civil action that is an original action and not a mode of appeal, and not a part of the appellate process but an independent action. May be directed against an interlocutory order of the court or where not appeal or plain or speedy remedy available in the ordinary course of law Raises only questions of law; Raises questions of jurisdiction because a tribunal, board or officer exercising judicial or quasijudicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; Filed within 15 days from Filed not later than 60 days notice of judgment or final from notice of judgment, order appealed from, or of order or resolution sought the denial of petitioners to be assailed and in case a motion for reconsideration motion for reconsideration or new trial; or new trial is timely filed, whether such motion is required or not, the 60 day period is counted from notice of denial of said motion; Extension of 30 days may Extension no longer be granted for justifiable allowed; reasons Does not require a prior Motion for motion for Reconsideration is a reconsideration; condition precedent, subject to exceptions Stays the judgment Does not stay the appealed from; judgment or order subject of the petition unless enjoined or restrained; Parties are the original The tribunal, board, officer parties with the appealing exercising judicial or quasiparty as the petitioner and judicial functions is the adverse party as the impleaded as respondent respondent without impleading the lower court or its judge; Filed with only the May be filed with the Supreme Court Supreme Court, Court of Appeals, Sandiganbayan, or Regional Trial Court SC may deny the decision motupropio on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. Note: The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. The antithetic character of appeal and certiorari has been generally recognized and observed save only on those rare instances when appeal is satisfactorily shown to be an inadequate remedy. Thus, a petitioner must show valid reasons why the issues raised in his petition for certiorari could not have been raised on

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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appeal (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305).

Q: Distinguish prohibition and mandamus from injunction. A:


Prohibition Mandamus Injunction Prohibition is an extraordinary writ Mandamus is an extraordinary writ Main action for injunction seeks to commanding a tribunal, corporation, commanding a tribunal, corporation, enjoin the defendant from the board or person, whether exercising board or person, to do an act required to commission or continuance of a judicial, quasi-judicial or ministerial be done: specific act, or to compel a particular functions, to desist from further (a) When he unlawfully neglects the act in violation of the rights of the proceedings when said proceedings are performance of an act which the law applicant. Preliminary injunction is a without or in excess of its jurisdiction, or specifically enjoins as a duty, and there is provisional remedy to preserve the with abuse of its discretion, there being no other plain, speedy and adequate status quo and prevent future wrongs no appeal or any other plain, speedy and remedy in the ordinary course of law; or in order to preserve and protect adequate remedy in the ordinary course (b) When one unlawfully excludes certain interests or rights during the of law (Sec. 2, Rule 65). another from the use and enjoyment of pendency of an action. a right or office to which the other is entitled (Sec. 3, Rule 65). Special civil action Special civil action Ordinary civil action To prevent an encroachment, excess, To compel the performance of a For the defendant either to refrain usurpation or assumption of jurisdiction; ministerial and legal duty; from an act or to perform not necessarily a legal and ministerial duty; May be directed against entities May be directed against judicial and non- Directed against a party exercising judicial or quasi-judicial, or judicial entities ministerial functions Extends to discretionary functions Extends only to ministerial functions Does not necessarily extend to ministerial, discretionary or legal functions; Always the main action Always the main action May be the main action or just a provisional remedy May be brought in the Supreme Court, May be brought in the Supreme Court, May be brought in the Regional Trial Court of Appeals, Sandiganbayan, or in Court of Appeals, Sandiganbayan, or in Court which has jurisdiction over the the Regional Trial Court which has the Regional Trial Court which has territorial area where respondent jurisdiction over the territorial area jurisdiction over the territorial area resides. where respondent resides. where respondent resides.

f. EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION BEFORE FILING PETITION Q: Is it an absolute rule that before recourse to certiorari is taken a motion for reconsideration must be filed? A: GR: Petition for certiorari will not be entertained unless the public respondent has been given first the opportunity through a motion for reconsideration to correct the error being imputed to him. XPNs: A prior motion for reconsideration is not necessary to entertain a petition for certiorari where: 1. Order is a patent nullity, as where the court a quo has no jurisdiction; 2. Questions raised in the certiorari proceedings have been duly raised and 4. 5. 6. 3.

7. 8.

passed upon by the lower court, or are the same as those raised and passed upon in the lower court; Urgent necessity for the resolution of the question, and any further delay would prejudice the interests of the Government or of the petitioner, or the subject matter of the action is perishable; Under the circumstances, a motion for reconsideration would be useless; Petitioner was deprived of due process and there is extreme urgency for relief; In a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; Proceedings in the lower court are a nullity for lack of due process; Proceedings were ex parte or in which the petitioner had no opportunity to object; and

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

CIVIL PROCEDURE
9. Issue raised is one purely of law or where public interest is involved. without merit, prosecuted manifestly for delay, or raises questions which are too unsubstantial to require consideration? A: The court may dismiss the petition. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B. The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari (Sec. 8, as amended by A.M. No. 07-7-12-SC). 8. QUO WARRANTO Q: What is quo warranto? A: A proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position, office or franchise.
Note: It is commenced by a verified petition brought in the name of the Republic of the Philippines or in the name of the person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another. (Sec. 1)

g. RELIEFS PETITIONER IS ENTITLED TO Q: What are the reliefs a petitioner is entitled to with this action? A: The primary relief will be the annulment or modification of the judgment, order, or resolution or proceeding subject of the petition. It may also include such other Incidental reliefs as law and justice may require (sec 1, Rule 65) The court may also award damages in its judgment and the execution of the award for damages or costs shall follow the procedure in sec 1 of rule 39 (sec 9, rule 65). h. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES Q: What is the rule on acts or omissions of the MTC or RTC regarding election cases? A: In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction. (Sec.4, Rule 65, As amended by AM No. 07-7-12-SC, Dec. 12, 2007) i. WHERE TO FILE PETITION Q: When and where to file petition? A: 1. Supreme Court- Subject to the doctrine of hierarchy of courts and only when compelling reasons exist for not filing the same with the lower courts. 2. Court of Appeals only- If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or rules. 3. Court of Appeals and Sandiganbayan- Whether or not in aid of appellate jurisdiction. 4. Regional Trial Court- If the petition relates to an act or an omission of an MTC, corporation, board, officer or person. 5. COMELEC- In election cases involving an act or an omission of an MTC or RTC As amended by AM No. 07-7-12-SC, Dec. 12, 2007. j. EFFECTS OF FILING OF AN UNMERITORIOUS PETITION Q: What is the effect of a petition for certiorari, prohibition or mandamus which is patently

Q: What are the classifications of quo warranto proceedings? A: 1. Mandatory brought by the Solicitor General or Public prosecutor when: a. directed by the President; b. upon complaint or when he has reason to believe that the cases for quo warranto can be established by proof (Sec. 2) c. at the request and upon the relation if another person (ex relatione), but leave of court must first be obtained. (Sec. 3) Discretionary brought by the Solicitor General or a public prosecutor at the request and upon the relation of another person, provided there must be: a. leave of court b. at the request and upon the relation of another person c. indemnity bond (Sec. 3)

2.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25, 1929).

Q: Distinguish quo warranto in elective office from an appointive office. A:


Elective Office Issue: eligibility of the respondent Occupant declared ineligible/disloyal will be unseated but petitioner will not be declared the rightful occupant of the office. Appointive Office Issue: validity of the appointment Court will oust the person illegally appointed and will order the seating of the person who was legally appointed and entitled to the office.

b. WHEN GOVERNMENT COMMENCE AN ACTION AGAINST INDIVIDUALS c. WHEN INDIVIDUAL MAY COMMENCE AN ACTION Q: Who commences the action? A: 1. The solicitor general or public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the proceding section can be established by proof. (mandatory quo warranto) The Solicitor General or a public prosecutor may, with the permission of court, bring an action at the request and upo n the relation of another person. (discretionary quo warranto) A person claiming to be entitled to a public office or position or unlawfully held or exercised by anoher may also bring action, in his own name.

a. DISTINCTION FROM QUO WARRANTO UNDER OMNIBUS ELECTION CODE Q: Distinguish quo warranto under Rule 66 from quo warranto under Omnibus Election Code. A:
Quo Warranto Under Rule 66 Prerogative writ by which the government can call upon any person to show by what title he holds a public office or exercises a public franchise. Grounds: 1. usurpation 2. forfeiture 3. illegal association Presupposes that the respondent is already actually holding office and action must be commenced within 1 year from cause of ouster or from the time the right of petitioner to hold office arose. The petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds. Person adjudged entitled to the office may bring a separate action against the respondent to recover damages. Quo Warranto In Electoral Proceedings To contest the right of an elected public officer to hold public office. Grounds: ineligibility or disqualification to hold the office

2.

3.

Q: Against whom a quo warranto may be filed? A: The action must be filed against: 1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; 2. A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; and 3. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act (Sec. 1, Rule 66).
Note: Actions of quo warranto against corporations now fall under the jurisdiction of the RTC (Sec. 5.2, Securities Regulations Code).

Petition must be filed within 10 days from the proclamation of the candidate.

May be filed by any voter even if he is not entitled to the office. Actual or compensatory damages are recoverable in quo warranto proceedings under the Omnibus Election Code.

Note: If the dispute is as to the counting of votes or on matters connected with the conduct of the election, quo warranto is not the proper remedy but an election

Q: A group of businessmen formed an association in Cebu City calling itself Cars Co. to distribute/sell cars in said city. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. The Solicitor General filed before the RTC in Manila a verified petition for quo warranto questioning and seeking to stop the operations of Cars Co. The latter filed a motion to dismiss the petition on the ground of improper venue claiming that its main office and operations are in Cebu City and not in

146

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

CIVIL PROCEDURE
Manila. Is the contention of Cars Co. correct? Why? A: No. As expressly provided in the Rules, when the Solicitor General commences the action for quo warranto, it may be brought in a Regional Trial Court in the City of Manila, as in the case, in the CA or in the SC (Sec. 7, Rule 66). (2001 Bar Question) d. JUDGMENT IN QUO WARRANTO ACTION Q: What is the effect of a judgment in Quo Warranto case? A; When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of the parties to the action as justice requires (Sec. 9, Rule 66). e. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE Q: What are the rights of persons adjudged to be entitled to the office? A: if judgment be rendered in favor of the person averred in the complaint to be entitled to the public office, he may, after taking the oath of office and executing any official bond required by law: 1. take upon himself the execution of the office; 2. may immediately thereafter demand all the books and papers in the respondents custody or control appertaining to the office to which the judgment relates; and 3. may bring an action against the respondent to recover damages sustained by such persons by reason of usurpation.
Note: when there is a judgment in a quo warranto action finding usurpation to be existent, respondent must be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his cost. Such further judgment may be rendered determining the respective rights in the public office, position, or franchise of all the parties to the action, as justice requires.

Q: What are expropriation? A: 1. 2. 3.

the

requisites

of

valid

Due process of law Payment of just compensation Taking must be for public use

Q: What is the power of eminent domain? A: It is the right of the State to acquire private property for public use upon the payment of just compensation. Q: When is expropriation proper? A: It is proper only when the owner refuses to sell or, if the latter agrees, agreement as to the price cannot be reached. a. MATTERS TO BE ALLEGED IN COMPLAINT FOR EXPROPRIATION Q: Matters to be allege in a complaint for expropriation. A: right and purpose of expropriation, describing the property sought to be expropriated, and joining as defendants all persons owning or claiming to own any part thereof or interest therein (Sec. 1). b. TWO STAGES IN EVERY ACTION FOR EXPROPRIATION Q: What are the two (2) stages in expropriation proceedings? A: 1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the exercise in the context of the facts involved. Determination of just compensation.

2.

9. EXPROPRIATION Q: What is expropriation? A: The procedure for enforcing the right of eminent domain.

Q: City of Iloilo (petitioner) represented by Mayor Treas filed a complaint for eminent domain against Javellana seeking to expropriate two parcels of land. Mayor Treas filed a motion for issuance of writ of possession alleging that it had deposited 10% of the amount of compensation of which the court issued. A writ of possession was subsequently issued, and petitioner was able to take physical possession of the properties. After which, the expropriation proceedings remained dormant. 16 years later, Javellana filed an ex parte motion/manifestation, where he alleged that when he sought to withdraw the money, he discovered that no deposit was made. Thus, Javellana filed a complaint for recovery of

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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possession, fixing and recovery of rental and damages. The City of Iloilo argues that Javellana could no longer bring an action for recovery since the subject property was already taken for public use. The trial court in its orders and amended orders maintained that the assailed orders issued by it were interlocutory in character and as such are always subject to modification and revision by the court anytime. Is the order of expropriation final? A: Expropriation proceedings have two stages. The first phase ends with an order of dismissal, or a determination that the property is to be acquired for a public purpose. The second phase consists of the determination of just compensation. Both orders, being final, are appealable. An order of condemnation or dismissal is final, resolving the question of whether or not the plaintiff has properly and legally exercised its power of eminent domain. Once the first order becomes final and no appeal thereto is taken, the authority to expropriate and its public use can no longer be questioned. Thus, it has become final, and the petitioners right to expropriate the property for a public use is no longer subject to review. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010). Q: May Congress enact a law providing that a 5,000 square meter lot, a part of the UST compound in Sampaloc, Manila, be expropriated for the construction of a park in honor of former City Mayor ArsenioLacson? As compensation to UST, the City of Manila shall deliver its 5-hectare lot in Sta. Rosa, Laguna originally intended as a residential subdivision for the Manila City Hall employees. Explain. A: Yes, Congress may enact a law to expropriate property but it cannot limit just compensation. The determination of just compensation is a judicial function and Congress may not supplant or prevent the exercise of judicial discretion to determine just compensation. Under Sec. 5, Rule 67 of the Rules of Court, the ascertainment of just compensation requires the evaluation of 3 commissioners. (2006 Bar Question) c. WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY Q: What is the new system of immediate payment of initial compensation? A: RA 8974 provides a modification of sec 2, Rule 67 where the Government is required to make immediate and direct payment to the property owner upon the filing of the complaint to be entitled to a writ of possession. As a relevant standard for initial compensation, the market value for the property as stated in the tax declaration or the current relevant zonal valuation of the Bureau of internal Revenue (BIR), whichever is higher and the value of the improvements and/or structures using the replacement cost method.
Note: RA 8974 applies in instances when the national government expropriates property for national government infrastructure projects. Thus, if expropriation is engaged by the national government for purposes other that national infrastructure projects, the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply. The intent of RA 8974 to supersede the system of deposit under Rule 67 with the scheme of immediate payment in cases involving national government infrastructure projects is indeed very clear (MCWD v. J. King and Sons, GR 175983, April 16, 2009)

d. NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION Q: What is the new system of immediate payment of initial just compensation? A: For the acquisition of right-of-way, site or location for any national government infrastructure project through expropriation, upon the filing of the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) 100 percent of the value of the property based on the current relevant zonal valuation of the BIR; and (2) the value of the improvements and/or structures as determined under Sec. 7 of RA 8974 (Sec. 4, RA 8974). e. DEFENSES AND OBJECTIONS Q: What must be filed when defendant has an objection? A: If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.

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

CIVIL PROCEDURE
Note: if there are no objections, he must file and serve a notice of appearance and manifestation to that effect. And thereafter, shall be entitled to notice of all proceedings.

overruled or when no party appears to object to or to defend against the expropriation (Sec 4, Rule 67).
Note: after the rendition of the order of expropriation, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except upon such terms as the court deems just and equitable (Sec 4, Rule 67)

Q: What is the duty of the court if the defendant waives his defenses or objections? A: If a defendant waives all defenses and objections not so alleged, the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award (Sec. 3, Rule 67). Q: How may appeal be taken from an order of expropriation by the party aggrieved thereby? A: It may be appealed by the defendant by record on appeal. This is an instance when multiple appeals are allowed because they have separate and/or several judgments on different issues e.g. issue on the right to expropriate or issue of just compensation
Note: An appeal does not delay the right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use.

g. ASCERTAINMENT OF JUST COMPENSATION Q: What is just compensation? A: Just compensation is equivalent to the fair market value of the property at the time of its taking or filing of complaint whichever comes first. It is the fair and full equivalent for the loss sustained by the defendant. Q: What is the formula for the determination of just compensation? A: JC = FMV + CD CB If CB is more than CD then, JC = FMV

JC Just compensation FMV Fair market value CD Consequential damages CB Consequential benefits
Note:Sentimental value is not computed.

Q: What is the effect if the order of condemnation was reversed? A: The owner shall repossess the property with the right to be indemnified for all damages sustained due to the taking (Sec. 11, Rule 67) Note: The landowner has the option of proving damages either in the same expropriation case or in a separate action instituted for that purpose, as the judgment denying the right of expropriation is not res judicata on the issue of damages arising from such illegal expropriation (Republic v. Baylosis, G.R. No. L-6191, Jan. 31, 1955). f. ORDER OF EXPROPRIATION Q: What is an order of expropriation? A: An order of expropriation (or order of condemnation) will be issued declaring that the plaintiff has a lawful right to take the property for the public use or purpose described in the complaint upon the payment of just compensation in the event the objections of the defendant are

Q: What is the reckoning point for determining just compensation? A:The value of just compensation shall be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. (Sec. 4) GR: When the taking of the property sought to be expropriated coincides with the commencement of the expropriation proceedings, or takes place subsequent to the filing of the complaint for eminent domain, the just compensation should be determined as of the date of the filing of the complaint. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010).
Note: Typically, the time of taking is contemporaneous with the time the petition is filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10, 2009)

XPNs: 1. Grave injustice to the property owner

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Air Transportation Office cannot conveniently invoke the right of eminent domain to take advantage of the ridiculously low value of the property at the time of taking that it arbitrarily chooses to the prejudice of the land owners. (Heirs of Mateo Pidacan&RomanaEigo v. Air Transportation Office, G.R. No. 162779, June 15, 2007) The taking did not have color of legal authority To allow NAPOCOR to use the date it constructed the tunnels as the date of valuation would be grossly unfair. First, it did not enter the land under warrant or color of legal authority or with intent to expropriate the same. It did not bother to notify the owners and wrongly assumed it had the right to dig those tunnels under their property. Secondly, the improvements introduced by NAPOCOR, the tunnels, in no way contributed to an increase in the value of the land. The trial court rightly computed the valuation of the property as of 1992, when the owners discovered the construction of the huge underground tunnels beneath their lands and NAPOCOR confirmed the same and started negotiations for their purchase but no agreement could be reached. (NAPOCOR v. Ibrahim, G.R. No. 168732, June 29, 2007) The taking of the property was not initially for expropriation There was no taking of the property in 1985 by Public Estates Authority (PEA) for purposes of expropriation. As shown by the records, PEA filed with the RTC its petition for expropriation on Sept. 22, 2003.The trial court was correct in ordering the Republic, through PEA, upon the filing of its complaint for expropriation, to pay Tan just compensation on the basis of the BIR zonal valuation of the subject property. (Tan v. Republic, G.R. No. 170740, May 25, 2007) The owner will be given undue increment advantages because of the expropriation The value of the property in question was greatly enhanced between the time when the extension of the street was laid out and the date when the condemnation proceedings were filed. The owners of the land have no right to recover damages for this unearned increment resulting from the construction of the public improvement for which the land was taken. To permit them to do so would be to allow them to recover more than the value of the land at the time when it was taken, which is the true measure of the damages, or just compensation, and would discourage the construction of important public improvements.(Provincial Govt of Rizal v. Caro de Araullo, G.R. No. L-36096, Aug. 16, 1933) h. APPOINTMENT OF COMMISSIONERS; COMMISSIONERS REPORT; COURT ACTION UPON COMMISSIONERS REPORT Q: May the court dispense with the assistance of commissioners in the determination of just compensation in expropriation proceedings? A: No. The appointment of commissioners in expropriation proceedings is indispensable. In such cases, trial with the aid of commissioners is a substantial right that may not be done away with capriciously or for no reason at all (MERALCO v. Pineda, G.R. No. L-59791, Feb. 13, 1992).
Note: Objections to the order of appointment must be filed within 10 days from service of the order and shall be resolved within 30 days after all the commissioners received the copies of the objections (Sec. 5)

2.

3.

Q: When may the court appoint a commissioner in expropriation proceedings? A: Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court (Sec. 5, Rule 67). Q: When should the commissioner make a report? A: The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall

4.

150

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

CIVIL PROCEDURE
not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire (Sec. 7, Rule 67). i. RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT Q: What are the rights of the plaintiff after payment? A: After payment of just compensation, as determined in the judgment, the plaintiff shall have the right to enter upon the property expropriated and to appropriate the same for the public use or purpose defined in the judgment or to retain possession already previously made in accordance with Sec 2, Rule 67. j. EFFECT OF RECORDING OF JUDGMENT Q: What is the effect of the recording of the judgment? A: When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of he place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose (Sec 13, Rule 69). 10. FORECLOSURE OF REAL ESTATE MORTGAGE Q: What is foreclosure of Real Estate Mortgage (REM)? A: It is the remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding against the property used to secure said obligation.
Note: It is commenced by a complaint setting forth the date and due execution of the mortgage; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage (Sec. 1).

a. JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE Q: What is judgment on foreclosure? A: It is the judgment of the court ordering the debtor to pay within a period not less than 90 days nor more than 120 days from the entry of judgment after ascertaining the amount due to the plaintiff (Sec. 2, Rule 68). Q: What is foreclosure sale? A: When the defendant fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under executions (Sec.3, Rule 68). Q: When is the sale of mortgaged property proper and how must it be brought about? A: if the mortgagor fails to pay the sum due within the period (90-120 days) stated by the court in its judgment, it would be good practice for the mortgagee to file a motion for the sale of the mortgaged property because under the Rules, the court shall order the sale of the property only upon motion of the mortgagee (sec 3, rule 68)
Note: it has been held that the motion for the sale of the mortgaged property is non-litigable and may be made ex parte. After the foreclosure sale has been effected, the mortgagee should file a motion for the confirmation of the sale which requires notice and hearing.

b. SALE OF MORTGAGED PROPERTY Q: What is the effect of confirmation of the sale? A: It shall divest the rights in the property of all the parties to the action and shall vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law (Sec 3, Rule 68)
Note: it is said that title vests in the purchaser upon a valid confirmation of the sale and retroacts to the date of sale.

c. DISPOSITION OF PROCEEDS OF SALE Q: How is the disposition of the proceeds of the sale done? A: The proceeds of the sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue after

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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paying off the mortgage debt due, the same shall be paid to junior encumbrances in the order of their priority. If there be any further balance after paying them or if there be no junior encumbrances, the same shall be paid to the mortgagor or any person entitled thereto (Sec. 4) Q: What claims shall be satisfied from the proceeds of the public sale of the mortgaged property (in order)? A: 1. 2. 3. 4. Costs incurred in the sale of property; Claim of the person foreclosing the property; Claims of junior encumbrancers in the order of their priority; Residue goes to the mortgagor or his authorized agent, or any other person entitled to it. d. DEFICIENCY JUDGMENT Q: What is deficiency judgment? A: It is the judgment rendered by the court holding the defendant liable for any unpaid balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy the entire debt. Q: What are the instances when the court cannot render deficiency judgment? A: where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and during the pendency of the proceedings was outside the Philippines, then it is not procedurally feasible. It is by nature in personam and jurisdiction over the person is mandatory. Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by the titled land of her friend Gretchen who, however, did not assume personal liability for the loan. Arlene defaulted and GAP filed an action for judicial foreclosure of the real estate mortgage impleading Arlene and Gretchen as defendants. The court rendered judgment directing Arlene to pay the outstanding account of P1.5 million (principal plus interest) to GAP. No appeal was taken by Arlene. Arlene failed to pay the judgment debt within the period specified in the decision. At the foreclosure sale, the land was sold to GAP for P1.2 million. The sale was confirmed by the court, and the confirmation of the sale was registered with the Registy of Deeds on January 5, 2002. A: 1. In judicial foreclosure by banks such as GAP, the mortgagor or debtor whose real property has been sold on foreclosure has the right to redeem the property within 1 year after the sale (or registration of the sale). However, under Sec. 47 of the General Banking Law of 2000, the purchaser at the auction sale has the right to obtain a writ of possession after the finality of the order confirming sale. The motion for writ of possession, however, cannot be filed ex parte. There must be a notice of hearing. 2. The deficiency claim of the bank may be enforced against the mortgage debtor Arlene, but it cannot be enforced against Gretchen, the owner of the mortgaged property, who did not assume personal liability of the loan. (2003 Bar Question) (1) INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT Q: What are the instances when the courts cannot render deficiency judgment? A: When the: 1. 2. Case is covered by the Recto Law (Art. 1484, NCC); Mortgagor is a non-resident and is not found in the Philippines, unless there is attachment; Mortgagor dies, the mortgagee may file his claim with the probate court under Sec. 7, Rule 86; and Mortgagee is a third person but not solidarily liable with the debtor. On January 10, 2003, GAP filed an ex-parte motion with the court for the issuance of a writ of possession to oust Gretchen from the land. It also filed a deficiency claim for P800,000 against Arlene and Gretchen. The deficiency claim was opposed by Arlene and Gretchen. 1. 2. Resolve the motion for the issuance of a writ of possession. Resolve the deficiency claim of the bank.

3.

4.

e. JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL FORECLOSURE Q: Distinguish judicial extrajudicial foreclosure. A:


Judicial Foreclosure Governed by Rule 68 Extrajudicial Foreclosure Governed by Act 3135

foreclosure

from

152

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

CIVIL PROCEDURE
There is only an equity of redemption except when the mortgagee is a bank Requires court intervention Right of redemption exists appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R. No. 73341, Aug. 21, 1987)

No court intervention necessary Mortgagee is given a special power of attorney Mortgagee need not be in the mortgage contract given a special power of to foreclose the attorney. mortgaged property in case of default. Note: A mortgagee may bring a personal action for the amount due, instead of a foreclosure suit, in which case, he will be deemed to have waived his right to proceed against the property in a foreclosure proceeding. (Movido v. RFC, G.R. No. L-11990, May 29, 1959)

11. PARTITION Q: What is partition? A: It is a process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property.It presupposes the existence of a coownership over a property between two or more persons. The rule allowing partition originates from a well-known principle embodied in the Civil Code, that no co-owner shall be obliged to remain the coownership. Because of this rule, he may demand at any time the partition of the property owned in common (Art. 494).
Note: It is commenced by a complaint. (Sec.1, Rule 69)

f. EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION Q: Distinguish equity of redemption from right of redemption. A:
Equity of Redemption Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90-120 days after the entry of judgment or even after the foreclosure sale but prior to confirmation Governed by Rule 68 Right of Redemption Right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property within 1 year from the registration of the Sheriffs certificate of foreclosure sale Governed by Secs. 29-31, Rule 39

Q: What are the requisites of a valid partition? A: 1. 2. Right to compel the partition; Complaint must state the nature and extent of plaintiff's title and a description of the real estate of which partition is demanded; and All other persons interested in the property must be joined as defendants (Sec. 1, Rule 69)

3.

a. WHO MAY FILE A COMPLAINT; WHO SHOULD BE MADE DEFENDANT Q: Who may file and who should be made defendants? A: The action shall be brought by the person who has a right to compel the partition of real estate (Sec. 1, Rule 69) or of an estate composed of personal property, or both real and personal property (Sec. 13, Rule 69). The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to be partitioned. The defendants are all the co-owners. Q: What is the effect of non-inclusion of a coowner in an action for partition? A: 1. Before judgment not a ground for a motion to dismiss. The remedy is to file a motion to include the party. After judgment makes the judgment therein void because co-owners are indispensable parties.

Note: There is no right of redemption in judicial foreclosure sale after the confirmation of sale except those granted by banks or banking institutions in favor of non-judicial persons as provided by the General Banking Act (Government Insurance System v. CFI of Iloilo, G.R. No. 45322, July 5, 1989). In extrajudicial foreclosure, the mortgagor has the right to redeem the property within one year from the registration of the deed of sale. However, Sec. 47 of the General Banking Act provides that in case of extrajudicial foreclosure, juridical persons shall have the right to redeem the property until, but not after, the registration of the certificate of foreclosure sale which in no case shall be more than 3 months after foreclosure, whichever is earlier. The pendency of the action stops the running of the right of redemption. Said right continues after perfection of an appeal until the decision of the

2.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Note: Creditors or assignees of co-owners may intervene and object to a partition affected without their concurrence. But they cannot impugn a partition already executed unless there has been fraud or in case it was made notwithstanding a formal opposition presented to prevent it. (Sec. 12, Rule 69)

2. 3.

Judgment as to the fruits and income of the property Judgment of partition (Riano, Civil Procedure: A Restatement for the Bar, p. 596, 2009 ed.)

b. MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION Q: What are the matters to be alleged in the complaint for partition? A: The plaintiff shall state in his complaint, the nature and extent of his title, an adequate description of the real estate of which partition is demanded, and shall join as defendants all other persons interested in the property (Sec. 1, Rule 69). He must also include a demand for the accounting of the rents, profits and other income from the property which he may be entitled to. These cannot be demanded in another action because they are parts of the cause of action for partition. They will be barred if not set up in the same action pursuant to the rule against splitting a single cause of action. c. TWO (2) STAGES IN EVERY ACTION FOR PARTITION Q: What are the two aspects of partition proceedings? A: 1. 2. Existence of co-ownership; and Accounting or how to actually partition the property.

d. ORDER OF PARTITION AND PARTITION BY AGREEMENT Q: What is an order of partition? A: The order of partition is one that directs the parties or co-owners to partition the property Q: When does the court issue the order of partition? A: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the property, that there is indeed a co-ownership among the parties, and that a partition is not legally proscribed thus may be allowed. If the court so finds that the facts are such that a partition would be in order, and that the plaintiff has a right to demand partition, the court will issue an order of partition.
Note: The court shall order the partition of the property among all the parties in interest, if after trial it finds that the plaintiff has the right to partition (Sec. 2, Rule 69). It was held that this order of partition including an order directing an accounting is final and not interlocutory and hence, appealable; thus, revoking previous contrary rulings on the matter. A final order decreeing partition and accounting may be appealed by any party aggrieved thereby.

Note: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner and there is co-ownership and that partition is not legally proscribed, the court will issue an order of partition. It directs the parties to partition the property by proper instruments of conveyance, if they agree among themselves. If they do agree, the court shall then confirm the partition so agreed and such is to be recorded in the registry of deeds of the place in which the property is situated (Sec 2, Rule 69). There always exist the possibility that the parties are unable to agree on the partition. Thus, the next stage is the appointment of commissioners.

Q: When is partition by agreement proper? A: The parties may make the partition among themselves by proper instruments of conveyance, if they agree among themselves. If they do agree, the court shall then confirm the partition so agreed upon by all of the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated (Sec. 2, Rule 69). e. PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS, COMMISSIONERS REPORT; COURT ACTION UPON COMMISSIONERS REPORT Q: Can the appointment of commissioners be dispensed with in an action for partition? A: The appointment of commissioners is mandatory unless there is an extrajudicial partition between

Q: What are the stages in an action for partition which could be the subject of appeal? A: 1. Order determining the propriety of the partition

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

CIVIL PROCEDURE
the parties. They have the power to effect the partition but not to inquire into question of ownership or possession
Note: if parties cannot agree, the court shall appoint not more than 3 commissioners of competent and disinterested persons to make partition. They shall make full and accurate report to the court of all their proceedings as to the partition. Upon the filing of such report, copies of which shall be served to the clerk of court upon all interested parties with notice that they are allowed 10 days within which to file objections to the findings of the report, if they so desire. The court may upon hearing accept the report and render judgment in accordance with the same, may recommit to the commissioners for further proceedings, or reject the report and render judgment that shall effectuate a fair and just partition.

A; The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable (Sec. 13, Rule 69). h. PRESCRIPTION OF ACTION Q: What is the rule on prescription in an action of partition? A: Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or coheirs as long as there is a recognition of the coownership expressly or impliedly (Art. 494). Also, the action for partition cannot be barred by prescription 12. FORCIBLE ENTRY AND UNLAWFUL DETAINER

f. JUDGMENT AND ITS EFFECTS a. DEFINITIONS AND DISTINCTION Q: What should the judgment contain and its effects? A: The judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action (Sec. 11, Rule 69). a. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. b. If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. g. PARTITION OF PERSONAL PROPERTY Q: What is the rule on partition of personal property? Q: What is forcible entry? A: It is entry effected by force, intimidation, threat, strategy, or stealth; the action is to recover possession founded upon illegal possession from the beginning.
Note: It is commenced by a verified complaint. (Sec. 1)

Q: What are the requisites of a valid forcible entry? A: 1. A person is deprived of possession of any land or building by force, intimidation, threat, strategy, or stealth; and Action is brought within 1 year from the unlawful deprivation. (Sec. 1)

2.

Q: What are the questions to be resolved in an action for forcible entry? A: 1. 2. Who has actual possession over the real property; Was the possessor ousted therefrom within one year from the filing of the complaint by force, intimidation, strategy, threat or stealth; and Does the plaintiff ask for the restoration of his possession (Dizon v. Concina, G.R. No. 23756, Dec. 27, 1969)

3.

Q: What is unlawful detainer? A: It is unlawful detention by a person who has acquired possession rightfully, but who detains the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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property after the right to keep possession has ended.
Note: It is commenced by a verified complaint. (Sec. 1) force, intimidation, strategy, threat or stealth. No previous demand for the defendant to vacate the premises is necessary. the possession of the property under his contract with the plaintiff. Demand is jurisdictional if the ground is nonpayment of rentals or failure to comply with the lease contract.

Q: What are the requisites of a valid unlawful detainer? A: 1. Possession of any land or building is unlawfully withheld from a lessor, vendor, vendee, or other person after the expiration or termination of the right to hold possession by virtue of any contract express or implied; Action is brought within 1 year after such unlawful deprivation or withholding of possession; and Demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee. (Sec. 1)

2.

The plaintiff must prove that he was in prior The plaintiff need not physical possession of the have been in prior physical premises until he was possession. deprived thereof by the defendant. The 1 year period is Period is counted from the generally counted from date of last demand or last the date of actual entry on letter of demand. the land.

3.

b. DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION REINVINDICATORIA Q: What are the possessory actions on real property? A:
Accion Interdictal Summary action for the recovery of physical possession where the disposses-sion has not lasted for more than 1 year. All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC. Accion Publiciana A plenary action for the recovery of the real right of possession when the dispossession has lasted for more than 1 year. RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila. MTC has jurisdiction if the value of the property does not exceed the above amounts. Accion Reinvindicatoria An action for the recovery of ownership, which necessarily includes the recovery of possession. RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila. MTC has jurisdiction if the value of the property does not exceed the above amounts.

Q: Is formal contract a prerequisite in unlawful detainer? A: The existence of a formal contract is not necessary in unlawful detainer. Even if there is no formal contract between the parties, there can still be an unlawful detainer because implied contracts are covered by ejectment proceedings. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner (Peran v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983). Q: Does the amount of rents and damages prayed for in an action for forcible entry and unlawful detainer affect the jurisdiction of the courts? A: No. The amount of rents and damages claimed does not affect jurisdiction of the MTCs because the same are only incidental or accessory to the main action (Lao SengHian v. Lopez, G.R. No. L-1950, May 16, 1949).
Note: If only rents or damages are claimed in an ordinary action, the action is personal and the amount claimed determines whether it falls within the jurisdiction of the RTC or the MTC.

Q: Distinguish forcible entry from unlawful detainer. A:


Forcible Entry (Detentacion) Possession of the land by the defendant is unlawful from the beginning as he acquires possession by Unlawful Detainer (Desahucio) Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to

Note: Forcible entry and unlawful detainer actions are summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved (Sudaria v..Quiambao, GR No. 164305, November 20, 2007)

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

CIVIL PROCEDURE
Q: What rule should govern the proceedings of accion interdictal? A: GR: Ejectment cases are summary proceedings intended to provide an expeditious means of protecting actual possession or right to possession of property. XPN: When the decision of the MTC is appealed to the RTC, the applicable rules are those of the latter court (Refugia v. CA, G.R. No. 118284, July 5, 1996). c. JURISDICTION IN ACCION PUBLICIANA AND ACCION REINVINDICATORIA Q: In which court accion publiciana and accion reinvindicatoria filed? A: The actions of forcible entry and unlawful detainer are within the exclusive and original jurisdiction of the MTC, MeTC and MCTC (Sec. 33[2], BP 129; RA 7691) and shall be governed by the rules on summary procedure irrespective of the amount of damages or rental sought to be recovered (Sec. 3, Rule 70). d. WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM THE ACTION MAY BE MAINTAINED Q: Who may institute the action? A: Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs (Sec. 1, Rule 70). e. PLEADINGS ALLOWED Q: What are the pleadings allowed? A: The only pleadings allowed to be filed are the complaint, compulsory counterclaim and crossclaim pleaded in the answer, and the answers thereto. All pleadings shall be verified (Sec. 4, Rule 70). f. ACTION ON THE COMPLAINT Q: What action will the court make upon receipt of the complaint? A: The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons (Sec. 5, Rule 70). g. WHEN DEMAND IS NECESSARY Q: When is demand necessary? A: Unless there exists a stipulation to the contrary, an unlawful detainer case shall be commenced only after the demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 2). The requirement for a demand implies that the mere failure of the occupant to pay rentals or his failure to comply with the conditions of the lease does not ipso facto render his possession of the premises unlawful. It is the failure to comply with the demand that vests upon the lessor a cause of action. Q: In what form should the demand be made? A: The demand may be in the form of a written notice served upon the person found in the premises. The demand may also be made by posting a written notice on the premises if no person can be found thereon (Sec. 2). It has been ruled, however, that the demand upon a tenant may be oral (Jakihaca vs. Aquino, 181 SCRA 67). Sufficient evidence must be adduced to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses. h. PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION Q: Can the court grant injunction while the case is pending? A: The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof (Sec. 15, Rule 70). i. RESOLVING DEFENSE OF OWNERSHIP Q: In what instances may the court resolve issue of ownership? A: When the defendant raises the issue of ownership, the court may resolve the issue of ownership only under the following conditions: (a) When the issue of possession cannot be resolved without resolving the issue of ownership; and (b) The issue of ownership shall be resolved only to determine the issue of possession (Sec. 16).
Note: The assertion by the defendant of ownership over the disputed property does not serve to divest the inferior court of its jurisdiction. The defendant cannot deprive the court of jurisdiction by merely claiming ownership of the property involved (Rural Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742; Perez vs. Cruz, 404 SCRA 487).If the defendant raises the question of ownership and the issue of possession cannot be resolved without deciding the question of ownership, the issue of ownership shall be resolved only to determine the issue of possession (Sec. 3, RA 7691).

k. SUMMARY PROCEDURE; PROHIBITED PLEADINGS Q: What is the nature of an action for forcible entry and unlawful detainer?
A: Forcible entry and unlawful detainer actions are

summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved (Tubiano vs. Riazo, 335 SCRA 531). These action shall both fall under the coverage of the Rules of Summary Procedure irrespective of the amount of damages or unpaid rental sought to be recovered (Sec. 3, Rule 70). Q: What are the prohibited pleadings and motion under Rule 70?
A: Prohibited pleadings and motions:

1.

j. HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT Q: How is the execution of judgment stayed? A: Defendant must take the following steps to stay the execution of the judgment: 1. Perfect an appeal; 2. File a supersedeas bond to pay for the rents, damages and costs accruing down to the time of the judgment appealed from; and 3. Deposit periodically with the RTC, during the pendency of the appeal, the adjudged amount of rent due under the contract or if there be no contract, the reasonable value of the use and occupation of the premises (Sec. 19, Rule 70).

Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12; 2. Motion for a bill of particulars; 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third-party complaints; 12. Interventions 13. CONTEMPT Q: What is contempt? A: It is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with, or prejudice litigant or their witnesses during litigation (Halili v. CIR, G.R. No. L-24864, Nov. 19, 1985)
Note: It is commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein (Sec. 4).

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

CIVIL PROCEDURE
a. KINDS OF CONTEMPT Q: What are the kinds of contempt? A: 1. 2. Direct or indirect, according to the manner of commission. Civil or Criminal, depending on the nature and effect of the contemptuous act. f. d. e. Failure to obey a subpoena duly served. Assuming to be an attorney or an officer of the court without authority. Rescue or attempted rescue, of a person or property in the custody of an officer. Any improper conduct tending to degrade the administration of justice (Sec. 3)

g.

Q: Distinguish direct from indirect contempt? A:


Direct Contempt Committed in the presence of or so near a court. Summary in nature If committed against: 1. RTC fine not exceeding P2,000 or imprisonment not exceeding 10 days or both. 2. MTC fine not exceeding P200 or imprisonment not exceeding 1 day, or both. Remedy:Certiorari or prohibition Contempt in facie curiae Indirect Contempt Not committed in the presence of the court. Punished after being charged and heard IF COMMITTED AGAINST: 1. RTC FINE NOT EXCEEDING P30,000
OR IMPRISONMENT NOT EXCEEDING 6 MONTHS OR BOTH

Q: Distinguish criminal contempt from civil contempt. A:


Criminal Contempt Punitive in nature Purpose is to preserve the courts authority and to punish disobedience of its orders Intent is necessary Civil Contempt Remedial in nature Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order for the preservation of the rights of private persons Intent is not necessary Instituted by the aggrieved party or his successor or someone who has pecuniary interest in the right to be protected Proof required is more than mere preponderance of evidence If judgment is for respondent, there can be an appeal

2.

MTC fine not exceeding P5,000 or imprisonment not exceeding 1 month or both

Remedy: Appeal (by notice of appeal) Constructive contempt

State is the real prosecutor

Q: What are the grounds of contempt? A: 1. Direct contempt a. Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings b. Disrespect towards the court c. Offensive personalities toward others; or d. Refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so (Sec. 1) Indirect contempt a. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; b. Abuse or any unlawful interference with the proceedings not constituting direct contempt. c. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court or unauthorized intrusion to any real property after being ejected.
Proof required is proof beyond reasonable doubt. If accused is acquitted, there can be no appeal.

2.

Q: Lawyer Mendoza, counsel for the accused in a criminal case, was cited for direct contempt by Judge Tagle and was sentenced to 10 days imprisonment. Lawyer Mendoza was placed in prison immediately. Lawyer Mendoza manifested his readiness to post a bond and to appeal the order by certiorari to stay its execution but Judge Tagle said that the order is immediately executory. Is Judge Tagle correct? A: No. An order of direct contempt is not immediately executory or enforceable. The contemner must be afforded a reasonable remedy to extricate or purge himself of the contempt. Under Sec. 2, Rule 71, of the Rules of Court, a person adjudged in direct contempt by any court

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him (Tiongco v. Judge Salao, A.M. No. RTJ-06-2009, July 27, 2006). b. PURPOSE AND NATURE OF EACH Q: What is the purpose of the power to contempt? A: The reason for the power to punish for contempt is that respect of the courts guarantees the stability of their institution. Without such guarantee, said institution would be resting on shaky foundation (Cornejovs.Tan, 85 Phil. 772). Q: What is the nature of contempt power? A: The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders and mandates of the courts, and, consequently, to the due administration of justice. Q: What are the dual aspects on the power to punish contempt? A: 1. Primarily, the proper punishment of the guilty party for his disrespect to the courts; and Secondarily, his compulsory performance of some act or duty required of him by the court and which he refuses to perform. 2. lower court, the penalty is a fine not exceeding 200 pesos or imprisonment not exceeding one (1) day, or both (Sec. 1); c. If the contempt consists in the refusal or omission to do an act which is yet within the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. A person adjudged in direct contempt may not appeal therefrom. His remedy is a petition for certiorari or prohibition directed against the court which adjudged him in direct contempt (Sec. 2). Pending the resolution of the petition for certiorari or prohibition, the execution of the judgment for direct contempt shall be suspended. The suspension however shall take place only if the person adjudged in contempt files a bond fixed by the court which rendered the judgment. This bond is conditioned upon his performance of the judgment should the petition be decided against him. d. REMEDY AGAINST INDIRECT CONTEMPT; PENALTY Q: What is theremedy against indirect contempt and its penalty? A: 1. The punishment for indirect contempt depends upon the level of the court against which the act was committed; (a) Where the act was committed against an RTC or a court of equivalent or higher rank, he may be punished by a fine not exceeding 30,000 pesos or imprisonment not exceeding 6 months, or both; (b) Where the act was committed against a lower court, he may be punished by a fine not exceeding 5,000 pesos or imprisonment not exceeding one month, or both. Aside from the applicable penalties, if the contempt consists in the violation of a writ of injunction, TRO or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved (Sec. 7); (c) Where the act was committed against a person or entity exercising quasi-judicial functions, the penalty imposed shall depend upon the provisions of the law which authorizes a penalty for

2.

c. REMEDY AGAINST DIRECT CONTEMPT; PENALTY Q: What is theremedy against direct contempt and its penalty? A: 1.

The penalty for direct contempt depends upon the court which the act was committed; a. If the act constituting direct contempt was committed against an RTC or a court of equivalent or higher rank, the penalty is a fine not exceeding 2,000 pesos or imprisonment not exceeding 10 days, or both; b. If the act constituting direct contempt was committed against a

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

CIVIL PROCEDURE
contempt against such persons or entities. (2) The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same manner as in criminal cases. The appeal will not however have the effect of suspending the judgment if the person adjudged in contempt does not file a bond in an amount fixed by the court from which the appeal is taken. This bond is conditioned upon his performance of the judgment or final order if the appeal is decided against (Sec. 11). e. HOW CONTEMPT PROCEEDINGS ARE COMMENCED Q: How may an action for indirect contempt be commenced? A: 1. By order or other formal charge by the court requiring the respondent to show cause why he should not be punished for contempt (motuproprio); or By a verified petition with supporting particulars and certified true copies of the necessary documents and papers (independent action) (Sec. 4).
pursuant to law, Rule 71 shall apply suppletorily (Sec 12, Rule 71) Quasi-judicial bodies that have the power to cite persons for indirect contempt pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases.

Q: May a non-party be held for contempt? A: No, unless he is guilty of conspiracy with any one of the parties in violating the courts orders (DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30, 1982). Q: Ray, through Atty. Velasco, filed a complaint for quieting of title against Chiz. Chiz, however, interposed the defense that the documents relied upon by Ray and Atty. Velasco were forged and falsified. Finding that the said documents were indeed forged and falsified, Judge Victoria cited Ray and Atty. Velasco for direct contempt and ordered them to serve 10 days of detention at the Municipal Jail. Ray and Atty. Velasco filed a motion for bail and a motion to lift the order of arrest. But they were denied outright by Judge Victoria. Is Judge Victoria correct? A: No. Direct contempt is a contumacious act done facie curiae and may be punished summarily without hearing. Indirect or constructive contempt, in turn, is one perpetrated outside of the sitting of the court. Here the use of falsified and forged documents is a contumacious act. However, it constitutes indirect contempt not direct contempt. The imputed use of a falsified document, more so where the falsity of the document is not apparent on its face, merely constitutes indirect contempt, and as such is subject to such defenses as the accused may raise in the proper proceedings. Thus, following Sec. 3, Rule 71, acontemner may be punished only after a charge in writing has been filed, and an opportunity has been given to the accused to be heard by himself and counsel. Moreover, settled is the rule that a contempt proceeding is not a civil action, but a separate proceeding of a criminal nature in which the court exercises limited jurisdiction. Thus, the modes of procedure and the rules of evidence in contempt proceedings are assimilated as far as practicable to those adapted to criminal prosecutions. Thus, the judge erred in declaring summarily that Ray and Judge Velasco are guilty of direct contempt and ordering their incarceration. He should have conducted a hearing with notice to Ray and Judge

2.

Note: The first procedure applies only when the indirect contempt is committed against a court or judge possessed and clothed with contempt powers. The second mode applies if the contemptuous act was committed not against a court or a judicial officer with authority to punish contemptuous acts. (Nazareno v. Barnes, G.R. No. L-59072, Apr. 25, 1984) The court does not declare the respondent in default since the proceeding partakes the nature of a criminal prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct. 28, 1982).

Q: What are the procedural requisites before the accused may be punished for indirect contempt? A: 1. 2. 3. A charge in writing to be filed; An opportunity for the person charged to appear and explain his conduct; and To be heard by himself or counsel. (Regalado v. Go, G.R. No. 167988, Feb. 6, 2007)

NOTE: The rules on contempt under Rule 71 apply to contempt committed against persons or entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Velasco (Judge Espaool v. Formoso, G.R. No. 150949, June 21, 2007). f. ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT Q: What are the acts which are deemed punishable as indirect contempt? A:After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: 1. Misbehavior an officer of a court in the performance of his official duties or in his official transactions; Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule; Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; Assuming to be an attorney or an officer of a court, and acting as such without authority; Failure to obey a subpoena duly served; The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him (Sec. 3). g. WHEN IMPRISONMENT SHALL BE IMPOSED Q: When shall imprisonment be imposed? A: When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. Indefinite incarceration may be resorted to where the attendant circumstances are such that the non-compliance with the court order is an utter disregard of the authority of the court which has then no other recourse but to use its coercive power. When a person or party is legally and validly required by a court to appear before it for a certain purpose, and when that requirement is disobeyed, the only remedy left for the court is to use force to bring the person or party before it.
Note: The punishment is imposed for the benefit of a complainant or a party to a suit who has been injured aside from the need to compel performance of the orders or decrees of the court, which the contemnor refuses to obey although able to do so. In effect, it is within the power of the person adjudged guilty of contempt to set himself free.

2.

h. CONTEMPT AGAINST QUASI-JUDICIAL BODIES Q: What is the rule on contempt against quasijudicial bodies? A: The rules on contempt apply to contempt committed against persons or entities exercising quasi-judicial functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law, Rule 71 shall apply suppletorily. Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. The RTC of the place where contempt has been committed shall have jurisdiction over the charges for indirect contempt that may be filed (Sec. 12).

3.

4.

5.

6. 7.

Note: Failure by counsel to inform the court of the death of his client constitutes indirect contempt within the purview of Sec. 3, Rule 71, since it constitutes an improper conduct tending to impede the administration of justice.

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

SPECIAL PROCEDINGS
IV. SPECIAL PROCEEDINGS Q: What is Special Proceeding? A: It is a remedy by which a party seeks to establish a status, a right or a particular fact. (Sec. 3(c), Rule 1)
NOTE: It is a proceeding in rem.

Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding. A:
Ordinary Action To protect or enforce a right or prevent or redress a wrong Involve 2 or more parties plaintiff and defendant Governed by ordinary rules, supplemented by special rules Initiated by a complaint, and parties respond through an answer Heard by courts of general jurisdiction Issues or disputes are stated in the pleadings of the parties Adversarial Based on a cause of action Special Proceeding Involves the establishment of a right, status, or fact May involve only one party only petitioner Governed by special rules, supplemented by ordinary rules Initiated by a petition and parties respond through an opposition Heard by jurisdiction courts of limited Special Civil Action Civil Action subject to specific rules. Involves two or more parties Ordinary rules apply primarily but subject to specific rules Some are initiated by complaint, while some are initiated by petition

Issues are determined by law Not adversarial Not based on a cause of action (except habeas Corpus) Some special civil action have no cause of action

Q: What are the subject matters of special proceedings? A:


Special Proceeding Jurisdiction RTC- Gross value of the estate exceeds 400,000/ 500,000 (Manila) MTC- Gross value of the estate does not exceed 400,000/ 500,000
NOTE: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses and costs

Venue 1. If inhabitant (resident) of the Philippines (whether citizen or alien)- Court of the province/ city where the deceased resides at the time of death Inhabitant (non- resident) of foreign country- court of any province/ city wherein he had estate

Rules 73-90

Settlement of Estate of Deceased Persons

2.

1.

Rule 91

Escheat

RTC

Ordinary escheat proceedings: RTC a. If resident- place where the deceased last resided b.If non-resident- place where he had estate 2. Reversion of land to the State for violation of the Consitution/ Laws- RTC where the land lies in whole or in part 3. Unclaimed deposits (for 10 years)- RTC of the city/ province where the bank is located
NOTE: All banks located in 1 province where the court is located may be made party- defendant in 1 action.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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RTC-Gross value of the estate exceeds 400,000/500,000 MTC- does not exceed 400,000/ 500,000 of RTC RTC Where the will was allowed or where the property or portion thereof affected by the trust is situated Where such insane person may be found Where petitioner resides for 3 years prior to the filing of the petition Where the corresponding registry is located civil

Rule 98

Trustees Hospitalization insane person Change of name Cancellation or correction of entries in the civil registry Declaration of absence and death Corporate rehabilitation Voluntary dissolution of corporation Administrative correction of entry/change of first name or nickname

Rule 101 Rule 103

Rule 108 Rule 107 A.M. No. 00-8-10-SC Rule 104

RTC RTC RTC SEC Local civil general registry/Consul

RA 9048

Rules 9297; A.M. No. 03-0205-SC A.M. No. 02-06-02-SC A.M. No. 02-6-02-SC A.M. No. 02-6-02-SC Rule 99

Guardianship

Family Court In case of minors RTC In cases other than minors

Where the absentee resided before his disappearance Where principal office of the corporation is situated Where principal office of corporation is situated Local civil registry office where the record is kept/where the interested party is presently residing or domiciled 1. If resident- place where minor/ incompetent resides 2. If non-resident- place where minor/ incompetent has property Where the adopter resides Where the adoptee resides Where the adopter resides Where petitioner resides or where the minor may be found Where the child resides

Domestic Adoption Rescission Adoption Inter-country Adoption Custody of Minors Judicial Approval of Voluntary Recognition of Minor Natural Children Summary Proceedings 1. Petitions on Foster care and Temporary Custody Declaration of Nullity of Marriage Cases of Domestic Violence Against Women and Children Habeas Corpus of

Family Court Family Court Family Court or the InterCountry Adoption Board Family Court

Rule 105

Family Court

Family Code

Where the petitioner resides or where the child resides if it involves minors Actions mentioned in the Family Courts Act Family Court

2. R.A. 8369 3.

Family Court

Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner

Rule 102

SC, CA, RTC, MTC in the province or city in case there is no RTC judge; SB only in aid of its appellate jurisdiction

Where the aggrieved party is detained (RTC)

164

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

SPECIAL PROCEDINGS
A.M. No. 03-04-04SC A.M. No. 07-9-12-SC Habeas Corpus in Relation to Custody of Minors Writ of Amparo Where the petitioner resides or where the minor may be found Where the threat, act or omission was committed or any of its elements occurred Where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner Where the unlawful act, omission or threat was committed Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner

Family Court, CA, SC RTC, SB, CA or SC or any justice thereof

A.M. No. 08-1-16-SC

Writ of habeas data

RTC, SB, CA or SC or any justice thereof

A.M. No. 09-6-8-SC

Writ of Kalikasan

SC or any stations of CA

A.M. No.02-1110-SC

Declaration of nullity of void marriage/Annulment of marriage

Family Court

A.M. No. 02-11-11SC

Legal Separation

Family Court

Q: What is the publication requirement in special proceedings? A:


Special Proceeding Administrative change of first name or nickname Corporate rehabilitation Settlement of estate of deceased persons Judicial change of name Judicial cancellation or correction of entries in the civil registry Domestic adoption Inter-country adoption Voluntary dissolution of corporation (Except shortening of corporate term) Declaration of absence Escheat Guardianship Trustees Custody of minors Hospitalization of insane person Rescission of adoption Administrative cancellation or correction of entries Habeas corpus Writ of amparo Writ of habeas data Writ of kalikasan 1. Petitions on foster care and temporary custody 2. Cases of domestic violence against women and Publication of Order of Hearing Once a week for 2 consecutive weeks

Once a week for 3 consecutive weeks

Once a week for 3 consecutive weeks Note: The declaration of absence shall not take effect until six (6) months after its publication in a newspaper of general circulation. Once a week for 6 consecutive weeks

None

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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children Summary proceedings Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may be through publication once a week for 2 consecutive weeks.

Q: Who should be notified in special proceedings? A:


Special proceeding Settlement of estate of deceased persons Trustees Hospitalization of insane person Judicial change of name Judicial cancellation or correction of entries in the civil registry Declaration of absence and death Corporate rehabilitation Voluntary dissolution of corporation Administrative correction of entry/ change of first name or nickname Guardianship Domestic Adoption Rescission of Adoption Inter-country Adoption Custody of Minors Habeas corpus Writ of amparo Writ of habeas data Writ of kalikasan Summary proceedings 1. Petitions on foster care and temporary custody 2. Cases of domestic violence against women and children Declaration of nullity of void marriage / Annulment of marriage Legal separation Escheat To whom notice must be given Executor/administrator/any interested party All persons interested on the trust On the person alleged to be insane and to the one having charge of him or any of his relatives Interested parties/Solicitor General Persons named in the petition/Solicitor General/Civil Registrar impleaded as respondent Heirs/legatees/devisees/creditors/other interested persons Creditors/Debtors Creditors Interested parties The minor if above 14 years of age/incompetent himself/Interested parties on the property of the ward. General or special notice may be given. Biological parents/Solicitor General Adopter Biological parents, if any/guardian Biological parents/guardian if any To the person to which the writ is directed Respondent Respondent Respondent Respondent and interested party Solicitor General/Public Prosecutor City/Provincial Prosecutor/ Respondent City/Provincial prosecutor/ Respondent None

A. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESSES 1. WHICH COURT HAS JURISDICTION Q: Which court has jurisdiction over the estate of the deceased? A:
Regional Trial Court Gross value of the estate exceeds 500,000 (within Metro Manila) or 400,000 (outside Metro Manila) Metropolitan Trial Court Gross value of the estate does not exceed 500,000/400,00

Q: State the rule on venue in judicial settlement of estate of deceased persons. A:


Resident Court of the province/city where the deceased resided at the time of death, whether a citizen or alien Non-Resident Court of the province/city wherein he had the estate

166

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

SPECIAL PROCEDINGS
2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE Q: What is venue? A: Under the Rules of Court, the province where the estate of the deceased shall be settled (Cuenco v. CA, G.R. No. L-24742, October 26, 1973) Q: Is venue waivable? A: Yes. Wrong venue is a waivable procedural defect, and such waiver may occur by laches where a party had been served notice of the filing of the probate petition for a year and allowed the proceedings to continue for such time before filing a motion to dismiss.
Note: Jurisdiction under Rule 73 does not relate to jurisdiction per se but to venue. Hence institution in the court where the decedent is neither an inhabitant nor had his estate may be waived (Uriarte v. CFI, G.R. Nos. L-21938-39, May 29, 1970).

v. Santiago, L- 1723, May 30, 1949); or by filing another petition for settlement in a proper court of concurrent venue (De Borja v. Tan, 77 Phil 872). XPN: Estoppel by Laches
Note: The rule applies to both testate and intestate proceedings.

3. EXTENT OF JURISDICTION OF PROBATE COURT Q: May probate courts determine issues of ownership in a proceeding for the settlement of estate of decedent? Explain. A: GR: No, because probate courts are courts of limited jurisdiction. XPNS: 1. Provisionally, for the sole purpose of including the property in the inventory, without prejudice to its final determination in a separate action; 2. When all the parties are heirs of the decedent and they agreed to submit the issue of ownership to the probate court, provided that no rights of third persons are prejudiced; 3. If the question is one of collation or advancement; or 4. If the parties consent to the assumption of jurisdiction by the probate court and no rights of third parties are prejudiced. (Agpalo, Handbook on Special Proceedings, pp. 10-12, 2003 ed.) Q: The probate court ordered the inclusion of a parcel of land registered in the name of Richard in the inventory of the properties of the deceased Anna. Richard opposed the inclusion arguing that the probate court cannot determine the issue of the ownership of the parcel of land inasmuch as the same was registered in his name. Is Richard correct? A: Yes. In probate proceedings, if a property covered by Torrens title is involved, the presumptive conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar, possession of the property itself is in the persons named in the title (Luy Lim v. CA, G.R. No. 124715, Jan. 24, 2000).

Q: What constitutes residence? A: It is the personal, actual, physical habitation, his actual residence or place of abode (Fule v. CA, G.R. No. L-40502, Nov. 29, 1976) and not his permanent legal residence or domicile.
Note: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses and costs.

Q: What is the remedy if Venue is improperly laid? A: GR: ORDINARY APPEAL should be filed, not certiorari or mandamus. XPN: CERTIORARI OR MANDAMUS should be filed when want of jurisdiction appear on the record of the case. Q: What is Jurisdiction? A: GR: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts (Sec. 1 of Rule 73.) The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval the Principle of Preferential

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What may the court do in the exercise of its probate jurisdiction? A: It may issue warrants and processes to compel the attendance of witnesses or carry into effect their orders and judgments and all other powers granted them by law. (Sec. 3, Rule 73) Q: May the probate court issue a writ of execution? A: GR: No, because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. XPNS: 1. To satisfy the contributive share of the devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 6, Rule 88); 2. To enforce payment of the expenses of partition (Sec. 3, Rule 90); and 3. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142; De Valera v. Hon. Ofilada, G.R. No. L-27526, Sept. 19, 1974). 4. To satisfy the claim in a summary proceedings of creditors or heirs who appear within two years from distribution. Q: Can a declaration of heirship be made in an independent action? A: 1. If the special proceedings are pending, or if there are no special proceedings filed but there is a need to file one, then the determination of heirship should be raised and settled in said special proceedings. If the special proceeding had been instituted but had been finally closed and terminated, or if a putative heir has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of properties belonging to the estate of the deceased (Portugal and Portugal, Jr. v. PortugalBeltran, G.R. No. 155555, Aug. 16, 2005). Q: Where should the estate be settled if the marriage is dissolved by death of either spouse or both? A: When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. (Sec. 2, Rule 73)
Note: If separate proceedings have been instituted for each estate, both proceedings may be consolidated if they were filed in the same court.

The rule on consolidation in settlement proceedings for husband and wife exclusively applies to them. It does not apply to siblings, parents and child or other relatives no matter how close. (Benigno v. de la Pea, G.R. No. L-38036, Oct. 15, 1932)
Notes: 1. The jurisdiction of a court as well as the concomitant nature of the action is determined by the averments in the complaint and not by the defenses contained in the answer. (Vda. De Manalo v. CA, 349 SCRA 135). The residence of the deceased or the location of his estate is not an element of jurisdiction over the subject matter but merely of venue (Cuenca v. CA 53 SCRA 360, 1973.) Testate proceedings take precedence over intestate proceedings for the same estate. If in the course of the intestate proceedings, it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that state, an administrator had already been appointed (Uriarte v. CFI, 33 SCRA 252, 1970.) Mere discovery of a document purporting to be the last will and testament of decedent after appointment of an administrator does not ipso facto nullify the letters of administration already issued until the will has been proven and allowed (Advincula v. Teodoro, 99 Phil 413).

2.

3.

4.

2.

4. POWERS AND DUTIES OF PROBATE COURT Q: What are the powers and duties of a Probate Court? A: In probate proceedings, the court: 1. Orders the probate of the will of the decedent 2. Grants letters administration

168

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

SPECIAL PROCEDINGS
3. Supervises and controls all acts of administration 4. Hears and approves claims against the estate of the deceased 5. Orders payment of lawful debts 6. Authorizes sale, mortgage or any encumbrance of real estate 7. Orders the payment of taxes and other charges 8. Directs the delivery of the estate to those entitled thereto.
Note: The court acts as a trustee and as such must jealously guard the estate and see to it that it is wisely and economically administered, not dissipated. Allowed only in intestate succession There must be no outstanding debts of the estate at the time of the settlement Resorted at the instance and by agreement of all heirs Allowed in both testate and intestate succession Available even if there are debts, it is the court which will make provision for its payment May be instituted by any interested party even a creditor of the estate without the consent of all the heirs Amount of bond is to be determined by the court

Amount of bond is equal to the value of personal property

Q: What are the powers and duties of a probate court? A: To pass upon the issue regarding: 1. Validity of the will (i.e. formalities required by law) 2. Distribute shares 3. Determine who are the legal heirs 4. Issue warrants and processes to secure attendance of witnesses 5. Determine and rule upon issues relating to settlement of the estate, such as administration, liquidation, and distribution of the estate 6. Determine the following: a. Heirs of the decedent; b. Recognition of natural child; c. Validity of disinheritance effected by testator; d. Status of a woman who claims to be the lawful wife of the decedent ; e. Validity if waiver of hereditary heirs; f. Status of each heir; g. Whatever property in the inventory is conjugal or exclusive property of deceased spouse; or h. Matters incidental or collateral to the settlement and distribution of the estate. B. SUMMARY SETTLEMENT OF ESTATES

Q: Distinguish the procedure in extrajudicial settlement from summary settlement A: A. EXTRAJUDICIAL SETTLEMENT AGREEMENT BETWEEN THE HEIRS
Division of estate made through a public instrument or affidavit of adjudication Filing of the public instrument or affidavit of adjudication with the proper Register of Deeds Publication of notice of the fact of extrajudicial settlement once a week for three consecutive weeks in a newspaper of general circulation

BY

Personal property- file a bond equivalent to its amount. Real property- subject to a lien in favor of the creditors, heirs or other persons for the full period of 2 years from such distribution and such lien cannot be substituted by a bond

1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED


EXTRA JUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS No court intervention The value of the estate is immaterial SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE Requires summary adjudication Gross value of the estate must not exceed P10,000

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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B. SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE
Petition for summary settlement to be filed in the MTC with an allegation that the gross value of the estate, whether he died testate or intestate does not exceed P10,000

Publication of notice once a week for 3 consecutive weeks; court may likewise order that notice be given to persons as the court may direct

Note: While the Rules of Court provide that the decedent must not have left any debts, it is sufficient if any debts he may have left have been paid at the time the extrajudicial settlement is entered into (Guico v. Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a disputable presumption that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent.

Q: What is a bond?
Hearing to be held not less than 1 month nor more than 3 months from the date of last publication of notice

A: It is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims under Section 4, Rule 74.
Note: The amount of bond required under Section 2 is determined by the COURT whereas in Section 1 the amount is EQUAL TO THE VALUE OF THE PERSONAL PROPERTY as established by adjudication.

The court proceeds summarily without the necessity of appointing an executor or administrator; and to make orders as may be necessary The court may also require a bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Section 4

Q: When is a bond required to be filed in extrajudicial settlement of estate? A: When personal property is involved, a bond is required. On the other hand, if it is a real property, it is subject to a lien in favor of a creditor for 2 years from distribution and such lien cannot be substituted by a bond. (Sec. 1, Rule 74) Note: The same provision on the bond and lien also applies in summary settlement of estate. (Sec. 2, Rule 74) Q: Is a public instrument necessary for the validity of the extrajudicial settlement? A: No, the requirement of public instrument is not constitutive of the validity but is merely evidentiary in nature (Hernandez v. Andal, G.R. No. L-273, Mar. 23, 1947). Even a private instrument, oral agreement of partition or compromise agreement entered into without previous authority from the court is valid. However, reformation of the instrument may be compelled.
Note: Public instrument is required in transfer and registration of title to the heirs.

Q: When is extra judicial settlement by agreement between the heirs allowed? (Substantial Requisites) A: When the decedent: 1. 2. Left no will and no debts; and the heirs are all of age; and Of the minors are represented by their judicial or legal representatives duly authorized for the purpose.

Q: What are the requisites before an extrajudicial settlement of estate could be resorted as evidence of its validity? (Procedural Requisites) A: 1. Settlement is made in a public instrument or by affidavit of adjudication in the case of a sole heir;
Note: In case of disagreement of heirs, they may state their oppositions in an ordinary action of partition.

Q: What is the effect of an extra-judicial partition executed without the knowledge and consent of the other co-heirs? A: It shall not prejudice the co-heir who had no knowledge nor consented to the same. He shall have the right to vindicate his inheritance. Such heir or such other person deprived of his lawful participation payable in money may compel the settlement of the estate in courts for the purpose

2. 3.

4.

Filed with the Register of Deeds; Fact of settlement must be published in a newspaper of general circulation once a week for 3 consecutive weeks; and Bond filed equivalent to the value of personal property. (Sec. 1, Rule 74)

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

SPECIAL PROCEDINGS
of satisfying such lawful participation. (Sec. 4, Rule 74) Q: Why is publication of the extrajudicial settlement necessary? A: To notify and bind the whole world of the extrajudicial settlement and give the concerned parties a chance to come forward and challenge the same (Sec. 1, Rule 74). Note: Publication alone does not suffice to bind the excluded heirs to the extrajudicial settlement unless he did not participate in the proceedings. Q: What is the effect if the provisions on notice or participation requirement under Sec. 1, Rule 74 have been strictly complied with? A: It bars distributees or heirs from objecting to an extra-judicial partition after the two-year prescriptive period to question such partition. (Sec. 4, Rule 74) 2. TWO-YEAR PRESCRIPTIVE PERIOD Q: When does the two year period rule apply? A: After the expiration of two years from the extrajudicial partition, distributees or heirs are barred from objecting to an extra- judicial partition. The two year prescriptive period applies only: 1. To persons who have participated or taken part or had notice of the extrajudicial partition; and When all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through their guardians. 3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR Q: What is an Affidavit of Self-Adjudication by sole heir? A: It is an affidavit required by Sec.1, Rule 74 to be executed by the sole heir or a deceased person in adjudicating to himself the entire estate left by the decedent. 4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE Q: What is summary settlement of estate? A: It is a judicial proceeding, without appointment of executor or administrator, and without delay, the competent court summarily proceeds to estimate the value of estate of the decedent; allow his will if any; declare his heirs, devisees, and legatees; distribute his net estate among them, who shall thereupon be entitled to receive and enter into the possession of the parts of the estate so awarded to them, respectively. Q: Summary settlement of estates of small value, when is it allowed? A: Only when gross estate does not exceed P10,000. Amount is jurisdictional. (Sec. 2, Rule 74)
Notes: 1. 2. Amount is jurisdictional; Summary settlement of estate of small value is allowed in both testate and intestate estates; Available even if there are debts as the court will make provisions for the payment thereof. In accordance with B.P. Blg. 129, the jurisdiction is vested to the Municipal Trial Courts. Instituted by any interested party and even by a dredirtor of the estate, without the consent of all the heirs. The date for hearing, shall be set by court not less than 1 month nor more than 3 months from date of publication of last notice and the order of hearing be published once a week for 3 consecutive weeks in a newspaper of general circulation. Notice shall be served upon such interested persons as the court may direct. Bond in an amount fixed by the court (not value of the personal property) conditioned upon payment of just claims under sec. 4.

2.

3.

4.

Note: It is only a bar against the parties who had not taken part in the extrajudicial proceedings, but not against third persons not parties thereto. (Herrera, Remedial Law III-A, 39)

5.

6.

Q: Does the two year period apply for a claim of minor or incapacitated person? A: If on the date of the expiration of the period of two years prescribed, the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one year after such disability is removed. (Sec. 5, Rule 74)

7. 8.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: When can settlement of estates in courts be compelled? A: 1. If there is undue deprivation of lawful participation in the estate; 5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the estate? A:
CLAIM AGAINST THE BOND OR REAL ESTATE GROUNDS: (Section 4, Rule 74) a. If there is undue deprivation of lawful participation in the estate; b. Existence of debts against the estate. Should be brought within 2 years after settlement and distribution of the estate COMPEL THE SETTLEMENT ESTATE IN COURTS ACTION FOR RESCISSION OF Should be brought within 2 years after settlement and distribution of the estate It must be availed of within 5 years from the time the right of action accrues. (Art. 1149, NCC) Also applicable in judicial proceedings GR: It is based on an implied or constructive trust which prescribes in 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith. XPN: If the plaintiff is in possession of the property and did not pass to innocent purchaser for value and good faith, action is imprescriptible. (Marquez v. CA, G.R. No. 125715, Dec. 29, 1998) Also applicable in judicial proceedings. Upon motion of a person who either: a. Has a legal interest in the matter in litigation; b. Has such legal interest in the success of either of the parties, or an interest against both; or c. Is so situated as to be adversely affected by the distribution of property in the custody of the court or of an officer. Note: May be availed of after judgment but before its finality or appeal by the aggrieved party. On grounds of fraud, accident, mistake, and excusable negligence within 60 days after petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered. (Rule 38.) Also applicable in judicial proceedings. On the ground of fraud which should be filed within 4 years from the discovery of fraud.

2. 3.

The existence of debts against the estate; If there is undue deprivation of lawful participation payable in money. (Sec. 4, Rule 74)

ACTION FOR RECONVEYANCE OF REAL PROPERTY

REOPENING BY INTERVENTION IN SUMMARY SETTLEMENT

PETITION FOR RELIEF (SUMMARY SETTLEMENT)

ACTION TO ANNUL A DEED OF EXTRAJUDICIAL SETTLEMENT OR JUDGMENT IN SUMMARY SETTLEMENT ORDINARY ACTION BUT NOT AGAINST THE BOND

If the order of closure has already become final and executory, the heir must file an independent civil action of accion reinvidicatoria to recover his deprived share. Note: It must be brought within 10 years from the time the right of action accrues. [Art. 1144(c)] Also applicable in judicial proceedings. After the lapse of two years an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond.

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

SPECIAL PROCEDINGS
C. PRODUCTION AND PROBATE OF WILL 1. NATURE OF PROBATE PROCEEDING 2. Q: What is probate? A: Probate is the act of proving before a competent court the due execution of a will by a person possessed of testamentary capacity, as well as the approval thereof by said court, (also known as Allowance of Will). Q: Why is probate necessary? A: To settle all questions concerning the capacity of the testator and the proper execution of his will, irrespective of whether its provisions are valid and enforceable. (Fernandez v. Dimagiba, G.R. No. L23638, Oct. 12, 1967) Q: What is the nature of a probate proceeding? A: 1. IN REM- It is binding upon the whole world. 2. MANDATORY- No will shall pass either real or personal property unless it is proved and allowed in the proper court.
Note: However, a will may be sustained on the basis of Article 1080 of the NCC which states that, if the testator should make a partition of his property by an act intervivos or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir. (Mang- Oy v. CA, L-27421, 1986) NOTE: The decree of probate is conclusive with respect to the due execution of the will and it cannot be impugned on any of the grounds authorized by law, except by fraud, in any separate or independent action or proceeding.

anxiety; as in the case of absolute preterition (Nuguid v. Nuguid, G.R. No. L23445, June 23, 1966). Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985). Note: Principle does not apply where the meat of the controversy is not the intrinsic validity of the will.

2. WHO MAY PETITION FOR PROBATE Q: Who may file petition for allowance of will? A: 1. 2. 3. Executor (Sec. 1, Rule 76); Devisee or legatee named in the will (Sec. 1, Rule 76); Person interested in the estate; e.g. heirs
Note: An interested party is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate such as a creditor. (Sumilang v. Ramagosa, G.R. No. L-23135, Dec. 26, 1967)

4. 3. IMPRESCRIPTIBLE- because of the public policy to obey the will of the testator 4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate of the will is mandatory. The presentation and probate of the will is required by public policy. It involves public interest. (Fernandez v. Dimagiba, L- 23638, 1967) Q: Does the probate court look into the intrinsic validity of the will? A: GR: The jurisdiction of probate court is limited to the examination and resolution of the extrinsic validity of a will. XPNS: Principle of practical considerations wherein the court may pass upon the intrinsic validity of the will: 1. If the case where to be remanded for probate of the will, it will result to waste of time, effort, expense, plus added 2. 3. 5.

Testator himself during his lifetime (Sec. 1, Rule 76); or Any creditor as preparatory step for filing of his claim therein.

Q: Who are the people entitled to notice in a probate hearing? A: 1. Designated or known heirs, legatees and devisees of the testator resident in the Philippines at their places of residence, at least 20 days before the hearing, if such places of residence be known. Person named executor, if he not the petitioner. To any person named as co-executor not petitioning, if their places of residence be known. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs. (Sec. 4, Rule 76)

4.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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D. ALLOWANCE OR DISALLOWANCE OF A WILL
At least one witness who knows the handwriting and signature of the testator explicitly declares that the will and signature are in the handwriting of the testator. (Sec. 5, Rule 76) The will shall be allowed if at least three witnesses who know the handwriting of the testator explicitly declare that the will and signature are in the handwriting of the testator. (Sec. 11, Rule 76)

1. CONTENTS OF PETITION FOR ALLOWANCE FOR WILL Q: What are the contents of a petition for allowance of a will? A: 1. Jurisdictional facts: I. death of the testator and II. his residence at the time of his death III. if non- resident, the province where the estate was left 2. The names, ages and residences of the heirs, legatees and devisees of the testator or decedent. 3. The probable value and character of the property of the estate. 4. The name of the persons for whom letters are prayed. 5. The name of the person having custody of the will if it has not been delivered to the court.
NOTE: But no defect in the petition shall render void the allowance of the will or the issuance of letters testamentary or of administration with the will annexed. Holographic will

Note: At the hearing, compliance with publication and notice must first be shown before the introduction of testimony in support of the will.

In the absence of competent witness, and if the court deems it necessary, expert testimony may be resorted to. (Sec. 5, Rule 76) Q: What is the remedy if none of the subscribing witnesses resides in the province where probate is being conducted? A: A motion for taking of deposition of one or more of them. (Sec. 7, Rule 76)
Note: Court may also authorize photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked questions with respect to matters pertaining to the will. (Sec. 7, Rule 76)

Q: What is the effect of the allowance of a will? A: The judgment or decree of the court allowing the will is: Conclusive as to its extrinsic validity; Not subject to collateral attack and it stands as final, if not modified, set aside, or revoked by a direct proceeding, or reversed on appeal by a higher court; and 3. Conclusive on the whole world. (Yuseco v. CA, G.R. Nos. L-40719-21, Dec. 29, 1975) Q: How should a will be proved? A:
Uncontested The court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testifies that the will was executed as is required by law. (Sec. 5, Rule 76) Contested

1. 2.

Q: What are the instances when the court may admit the testimony of witnesses other than the subscribing witnesses? A: 1. 2. The subscribing witnesses are dead or insane; or None of them resides in the Philippines. (Sec. 8, Rule 76)

Q: What matters shall be testified on by the other witnesses? A:

Notarial will

All the subscribing witnesses and the notary public must testify as to due execution and attestation of the will. (Sec. 11, Rule 76)

1. 2.

The sanity of the testator; and Due execution of the will.

Note: The court may admit proof of handwriting of the testator and of the subscribing witnesses, or any of them. (Sec. 8, Rule 76)

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

SPECIAL PROCEDINGS
Q: What proof is necessary if the testator himself files the petition for probate of his holographic will and no contest is filed? A: The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. (Sec. 12, Rule 76) Q: What if the holographic will is contested? A: If the holographic will is contested, the burden of disproving the genuiness and due execution thereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant. (Sec. 12, Rule 76) Q: What is the rule on proof of lost or destroyed will? A: If notarial will, it may be proven by a photostatic or xerox copy of the will coupled with the testimonies of the attesting witnesses. If holographic will, a photostatic copy or exerox copy of the lost will would not suffice. But if there are no other copies available then a photostatic or xerox copy would suffice to serve as a comparison to the standard writings of the testator. No testimonies of witnesses is allowed because the will was made entirely by the testator himself. (Bonilla vs. Aranz, G.R. No. L-58509, Dec. 7, 1982) Q: What are the requisites for allowance of a lost or destroyed will?
A: No will shall be proved as a lost or destroyed will unless:

2.

3. 4.

5.

If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; If it was executed under duress, influence of fear, or threats; If it was procured by undue and improper pressure or influence, on the part of the beneficiary, or of some other person for his benefit; or If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto. (Sec. 9, Rule 76)

Q: What is the Substantial Compliance Rule? A: If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and farud is obviated, said will should be admitted to probate (Art. 809, New Civil Code). 3. REPROBATE; REQUISITES BEFORE WILL PROVED OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECT Q: What is reprobate? A: It is a special proceeding to establish the validity of a will proved in a foreign country. Q: What are the requisites before a will proven outside the Philippines be allowed here? A: 1. 2. 3. The testator was domiciled in a foreign country; The will has been admitted to probate in such country; The foreign court is, under the laws of said foreign country, a probate court with jurisdiction over the proceedings; Proof of compliance with the law on probate procedure in said foreign country; The legal requirements in said foreign country for the valid execution of the will have been complied with; Filing a petition in the Philippines with copy of the will and of its decree of allowance; and Notice and hearing. (PCIB v. Escolin, G.R. No. 76714, June 2, 1994)

1. 2.

3.

Its execution and validity of the same must be established; It must have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge; and Its provisions must be clearly and distinctly proved by at least 2 credible witnesses (Sec. 6)

4.

5.

6.

2. GROUNDS FOR DISALLOWING A WILL Q: What are the grounds for disallowance of will? A: 1. If not executed and attested as required by law;

7.

Note: Under the doctrine of processual presumption, there must be evidence to prove the existence of foreign law, otherwise the court should presume that the law of the foreign country is the same as Philippine laws.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What are the effects of probate? A: 1. The will shall have the same effect as if originally proved and allowed in the Philippines (Sec. 3, Rule 77); Letters testamentary or administration with a will annexed shall extend to all estates of the testator in the Philippines (Sec. 4, Rule 77); and Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to the will, so far as such will, may operate upon it, and the residue, if any, shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country (Sec. 4, Rule 77). LETTERS TESTAMENTARY AND OF ADMINISTRATION 2. 3. Non-resident of the Philippines; and Those who, in the opinion of the court, are unfit to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding or integrity, or conviction of an offense involving moral turpitude (Sec. 1, Rule 78).

2.

Q: What authority is issued to the person who administers the estate? A: 1. Letters testamentary authority issued to an executor named in the will to administer the estate; Letters of administration authority issued by the court to a competent person to administer the estate of the deceased who died intestate; or Letters of administration with a will annexed authority issued by the court to a competent person to administer the estate of the deceased if the executor named in the will refused to accept the office, or is incompetent. 2. ORDER OF PREFERENCE Q: State the order of preference in granting letters of administration. (to whom letters are granted) A: If no executor is named in the will, or the executors are incompetent, refuse the trust, or fail to give the bond, or a person dies intestate, administration shall be granted to: 1. The surviving spouse or next of kin, or both, in the discretion of the court, or to such person as such surviving spouse or next of kin, requests to have appointed, if competent and willing to serve The principal creditors, if competent and willing to serve, if the surviving spouse or next of kin, or the person selected by them be incompetent or unwilling or if the surviving spouse or next of kin neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person Such other person as the court may select if there is no such creditor competent and willing to serve. (Sec. 6)

3.

2.

3. E.

1. WHEN AND TO WHOM THE LETTERS OF ADMINISTRATION GRANTED Q: Who can administer the estate? A: 1. Executor named by the testator in his will for the administration of his property after his death; Administrator appointed by the court in accordance with the Rules or governing statutes to administer and settle the intestate testate; or Administrator with a will annexed appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such.

2.

3.

2.

Q: Who may serve as executor or administrator? A: Any competent person may serve as executor or administrator. There may be several executors named in the will. Letters testamentary may issue to such of them as are competent, accept and give bond. (Sec. 4, Rule 78)
Note: If the named executor does not qualify, then an administrator may be appointed. (Sec. 6, Rule 78)

3.

Q: Who are incompetent to serve as executor or administrator? A: 1. Minor;

NOTE: Order of preference may be disregarded for a valid cause.

176

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

SPECIAL PROCEDINGS
Note: Co-administrators may be appointed for the benefit of the estate and those interested therein (Matute v. CA, G.R. No. 26751, Jan. 31, 1969).

1. 2.

Q: What is the rationale behind the order of preference in appointing an administrator? A: The underlying assumption behind this rule is that those who will reap the benefits of a wise, speedy and economical administration of the estate or on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the higher interest and most influential motive to administer the estate correctly (Gonzales v. Aguinaldo, G.R. No. 74769, Sept. 28, 1990). Q: When may co-administrators be appointed? A: 1. To have the benefit of their judgment and perhaps at all times to have different interests represented; Where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased; Where the estate is large or, from any cause, an intricate and perplexing one to settle; To have all interested persons satisfied and the representatives to work in harmony for the best interest of the estate; or When a person entitled to the administration of an estate desires to have another competent person associated with him in the office. (Gabriel v. CA, G.R. No. 101512, Aug. 7, 1992)

Incompetency of the person for whom letters are prayed therein; or Contestant's own right to the administration (Sec. 4, Rule 79).

Note: Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves (Sec. 6, Rule 79).

Q: Is the order of Appointment of Regular Administrator final? A: No. The order of appointment of a regular administrator is appealable. Where no notice is required by Sec. 3, Rule 79 of the Rules of Court has been given to persons believed to have an interest in the estate of the deceased person; the proceeding for the settelement of the estate is void and should be annulled. The requirement as to notice is essential to the validity of the proceeding in order that no person may be deprived of his right to property without due process of law. (Herrera, Vol. III-A, p. 94, 2005 ed.) 4. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE POWERS Q: What are the rights of the executor or administrator of the deceased partners estate? A: 1. He shall at all times have access to, and may examine and take copies of books and papers relating to the partnership; He can make invoices of the property belonging to the partnership, and the surviving partner or partners on request; and The books, papers, and property in the partnerships hands or control shall be exhibited to such executor or administrator. (Sec. 1, Rule 84)

2.

3.

4.

5.

3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION Q: Who may oppose the issuance of letters testamentary or administration? A: Any person interested in the will may file a written opposition.
Note: He may attach thereto a petition for letters of administration and pray that letters be issued to himself, or to any competent person named in the opposition (Sec. 1, Rule 79).

2.

3.

Note: To exercise these rights, the executor or administrator must file his application with the probate court which must grant the same.

Q: What are the grounds for opposing a petition for administration? A: Any interested person may by filing a written opposition, contest the petition on the ground of the:

Q: What should be done by the executor or administrator to freely exercise his rights and duties? A: He shall submit a written application to the court having jurisdiction of the estate. (Sec. 1, Rule 84)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What are the general administrator or an executor? A: 1. To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner To examine and make invoices of the property belonging to the partnership in case of a deceased partner To maintain in tenantable repairs, houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court To make improvements on the properties under administration with the necessary court approval except for necessary repairs To possess and manage the estate when necessary: i) For the payment of debts; and ii) For the payment of expenses of administration powers of an 6. He cannot profit by the increase or decrease in the value of the property under administration; He cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners. (Herrera, Vol. IIIA, pp. 116-117, 2005 ed.)

7.

2.

5. APPOINTMENT OF SPECIAL ADMINISTRATOR


REGULAR ADMINISTRATOR Order of Appointment may be the subject of an appeal One of the obligations is to pay the debts of the estate Appointed when the deceased died intestate or did not appoint an executor in the will or the will was disallowed SPECIAL ADMINISTRATOR Order of Appointment is interlocutory and hence not appealable Cannot pay the debts of the estate Appointed when there is delay in granting letters testamentary or administration

3.

4.

5.

Q: Is the right of an executor/administrator to the possession and management of property of the deceased absolute? A: No, it can only be exercised so long as it is necessary for the payment of debts and expenses of administration (Ruiz v. CA, G.R. No.118671, Jan. 29, 1996). Q: What are the restrictions on the powers of administrator or executor? A: 1. He cannot acquire by purchase, even at public or judicial action, either in person or mediation of another, the property under administration; He cannot borrow money without authority from the court; He cannot speculate with funds under administration; He cannot lease the property under administration for more than 1 year;
Note: The administrator has the power to enter into lease contracts involving the properties of the estate even without prior judicial authority and approval. (Mananquil v. Villegas, A.M. No. 2430, Aug. 30, 1990)

Q: When are the grounds for the appointment of a special administrator? A: 1. When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will (Sec. 1, Rule 80); or When the executor or administrator is a claimant against the estate he represents (Sec. 6, Rule 86).

2.

Note: Only one special administrator at a time may be appointed, since the appointment is merely temporary.

2. 3. 4.

Q: Why is there a need for appointing a special administrator? A: The principal object is to preserve the estate until it can pass into the hands of persons fully authorized to administer it for the benefit of the creditors and heirs (De Guzman v. Guadiz, G.R. No. L-48585, Mar. 31, 1980). Q: What are the qualifications of a special administrator? A: These are not spelled out in the Rules of Court. Thus, the appointment should be within the sound discretion of the court. The fundamental and legal principles governing the choice of a regular administrator should also be taken into account in

5.

He cannot continue the business of the deceased unless authorized by the court; and

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

SPECIAL PROCEDINGS
the appointment of a special administrator. (Herrera, Vol. III-A, p. 99, 2005 ed.) 2. Q: Does the order of preference in the appointment of regular administrators apply to the appointment of special administrators? A: No, but such order of preference may be followed by the judge in the exercise of sound discretion (Matias v. Gonzales, G.R. No. L- 13391, May 25, 1960). Q: Is the order appointing a special administrator appealable? A: No, it is an interlocutory order. (Esler v. Tad-y, G.R. No. L-20902, Oct. 9, 1923) Q: What are the powers and duties of a special administrator? A: 1. Possess and take charge of the goods, chattels, rights, credits and estate of the deceased; Preserve the same; Commence and maintain suit for the estate; Sell only: a. Perishable property; and b. Other property ordered sold by the court; Pay debts only as may be ordered by the court. (Sec. 2, Rule 80) administrator is appointed with those powers. If a special administrator has been appointed, and thereafter a proceeding to contest a will before it is admitted to probate has been instituted, the court shall enter an order granting to the special administrator the additional powers, duties and obligations of an executor or administrator and requiring such additional bond as the court deems proper.

6. GROUNDS FOR REMOVAL OF ADMINISTRATOR Q: What are the grounds for the removal of an executor or administrator? A: 1. 2. Neglect to render an account and settle the estate according to law; Neglect to perform an order or judgment of the court, or a duty expressly provided by the Rules; Absconds; Becomes insane; or Becomes incapable or unsuitable to discharge the trust (Sec. 2, Rule 82).

2. 3. 4.

3. 4. 5.

5.

Note: These grounds are not exclusive. False misrepresentation by an administrator in securing his appointment is a ground for his removal (Cobarrubias v. Dizon, G.R. No. L-225, Feb. 26, 1946).

Q: When do the powers of special administrator cease? A: After the questions causing the delay are resolved and letters testamentary or administration are granted to executor or regular administrator. (Sec. 1) Q: When can 2 special administrators be appointed? A: 1. If a special administrator is appointed pending determination of a contest of a will instituted before it is admitted to probate, or pending an appeal from an order appointing, suspending or removing an executor or administrator, the special administrator has the same powers, duties and obligations as an executor or administrator, and the letters of administration issued to the special administrator must recite that the special

Q: What are the other grounds for removal of an executor or administrator? A: 1. Death; 2. Resignation; 3. An administrator who disbursed funds of the estate without judicial approval. (Cotia vs. Jimenez, 104 Phil. 960); 4. False representation by an administrator in securing his appointment (Cabarubbias vs. Dizon, 76 Phil. 209); 5. An administrator who holds an interest adverse to that of the estate or by his conduct showing his unfitness to discharge the trust (Garcia vs. Vasquez, 32 SCRA 490); 6. An administrator who has the physical inability and consequent unsuitability to manage the estate (De Borja vs. Tan, 93 Phil. 167).

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Are the grounds for removal of executor or administrator the same for special administrator? A: No. The grounds for the removal of regular administrator do not apply strictly to the special administrator as he may be removed by the court on other grounds upon its discretion. Q: What is the rule on proceedings upon death, resignation or removal of an executor or administrator? A: When an executor or administrator dies, resigns, or is removed the remaning executor or administrator may administer the trust alone, unless the court gransts letters to someone act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person. Q: Does the discovery of a will automatically terminate the letters of administration? A: No, until the will has been proved and allowed pursuant to Section 1, Rule 82. (De Parreno v. Aranzanso, G.R. No. L- 27657, Aug. 30, 1982) Q: What are the powers of a new executor or administrator after the first one resigns or is removed? A: To collect and settle the estate not administered; 2. To prosecute or defend actions commenced by or against the former executor or administrator; and To recover execution on judgments in the name of former executor or administrator. (Sec. 4, Rule 82) F. CLAIMS AGAINST THE ESTATE 1.
Note: The range of period specified in Sec.2 of Rule 86 is intended to give the court the discretion to fix the period for the filing of the claims. The probate court is permitted by the rule to set the period as long as it is within the limitation provided.

Q: What is the duty of the court after granting letters testamentary or of administration? A: The court shall issue a notice requiring all persons having money claims to file them in the office of the clerk of court. (Sec. 1, Rule 86) 1. TIME WHITIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS Q: What is the time within which claims shall be filed? A: It should not be less than six (6) months nor more than twelve (12) months from the day of the first publication of the notice thereof. Such period when fixed by the probate court becomes mandatory. However, at any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the time previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month. (Sec. 2, Rule 86) The period prescribed in the notice to creditors is not exclusive; that money claims against the estate may be allowed at any time before an order of distribution is entered, at the discretion of the court for the cause and upon such terms as are equitable. (Quisumbing vs Guison, 76 Phil 730)

2. STATUTE OF NON-CLAIMS Q: What is the statute of non-claims? A: It is a period fixed by the courts for the filing of claims against the estate for examination and allowance. (Herrera, Vol. III-A, p. 132, 2005 ed.) Q: When should claims be filed? A: GR: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. Such period once fixed by the court is mandatory. Otherwise, the claims are barred forever.
Note: Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the

Q: What is a claim? A: Claim refers to any debt or pecuniary demand against the decedents estate. Q: What is absolute claim? A: It is one which, if contested between living persons, would be the proper subject of immediate legal action and would supply a basis of judgment for a sum certain. Q: What is contingent claim? A: It is a conditional claim, which is subject to the happening of a future uncertain event. (Buan v. Laya, G.R. No. L-7840, Dec. 24, 1957)

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

SPECIAL PROCEDINGS
claims he has against the decedent, and mutual claims may be set off against each other in such action. (Sec. 5, Rule 86)

estate may be commenced against the executor or administrator under Rule 87. Q: What if the effect of claims not filed?

XPN: Belated claims. Q: What is the rule on Belated Claims? A: Belated claims may be filed even beyond the period fixed by the court: 1. On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for just causes, allow such claim to be filed not exceeding 1 month from the order allowing belated claims; or (Sec. 2 , Rule 86) Where the estate filed a claim against the creditor or claimant who failed to present his claim against the estate within the period fixed by the probate court for the settlement of such claims, the creditor will be allowed to set up the same as a counterclaim to the action filed by the estate against him. A: As expressly provided by the rule, all claims not presented within the time herein provided are barred. Q: The trial court admitted to probate the holographic will of Alice and thereafter issued an order for all the creditors to file their respective claims against the estate. Alan filed a contingent claim for agent's commission due him in the event of the sale of certain parcels of land belonging to the estate and reimbursement for expenses incurred. The executrix of the estate moved for the dismissal of said money claim against the estate on the grounds that Alan failed to attach a certification against non-forum shopping. The trial court dismissed the case. Is the trial court correct? A: No. Under Sections 1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of administration, all persons having money claims against the decedent are mandated to file or notify the court and the estate administrator of their respective money claims; otherwise, they would be barred, subject to certain exceptions. A money claim is only an incidental matter in the main action for the settlement of the decedent's estate; more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim. Hence, Alans contingent money claim, not being an initiatory pleading, does not require a certification against non-forum shopping. (Sheker v. Estate of Alice O. Sheker, G.R. No.157912, Dec. 13, 2007) Q: Should taxes due and assessed after the death of the decedent be presented in the form of a claim? A: No. The court in the exercise of its administrative control over the executor or administrator may direct him to pay such taxes. Moreover, heirs even after distribution are liable for such taxes. (Vera v. Fernandez, G.R. No. L-31364, Mar. 30, 1979) 3. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE Q: What should be the action of the executor or administrator if he has a claim against the estate? A: He shall give notice to the court in writing and the court shall thereafter appoint a special administrator (Sec. 8, Rule 86).

2.

Note: Statute of non-claims supersedes the Statute of Limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of non-claims and statute of limitations must concur in order for a creditor to collect.

Q: What claims against the estate of the decedent must be presented in the probate court in the testate or intestate proceedings? A: Only claims which survive such as: 1. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent; 2. All claims for funeral expenses; 3. Expenses for the last sickness of the decedent; or 4. Judgment for money against the decedent. (Sec. 5, Rule 86)
Note: Action on contractual claims such as favorable judgment obtained by the plaintiff in an action for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment may be filed against the estate of the decedent. (Sec. 20, Rule 3)

Action which survives like an action to recover real or personal property or an interest therein from the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What is the procedure in filing claims? A:

Q: Jericho loaned P5 Million from Carina. Said loan was secured by a real estate mortgage over a parcel of land owned by Jericho. Thereafter, Jericho died without satisfying the loan secured by the said mortgage. What are the remedies available to Carina to enforce her mortgage credit? A:

1. Waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim; 2. Foreclose the mortgage judicially and prove any deficiency as an ordinary claim; 3. Rely on the mortgage exclusively, foreclosing the same at any time before it is barred by prescription without the right to claim for any deficiency (Sec. 7, Rule 86).
Note: The above remedies are alternative.

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

SPECIAL PROCEDINGS
4. PAYMENT OF DEBTS Q: Is execution the proper remedy to satisfy an approved claim? A: No, because: 1. 2. Payment approving a claim does not create a lien upon property of the estate Special procedure is for the court to order the sale to satisfy the claim
Note: A writ of execution is not the proper procedure to satisfy debts. The court must order the sale or mortgage of the properties of decedent, the proceeds of which will satisfy the debts and expenses.

5.

6.

The decedent was, in his lifetime, under contract, binding in law, to deed real property to beneficiary (Sec. 8, Rule 89); The decedent during his lifetime held real property in trust for another person (Sec. 9, Rule 89).

Q: How shall the proceeds from sale of personal property be used? A: 1. 2. 3. To pay the debts and expenses of administration; To pay legacies; and To cover expenses for the preservation of the estate. (Sec. 1, Rule 89)

Q: How should the debts of the estate be paid? A: GR: The payment of the debts of the estate must be taken from the following order: 1. Portion or property designated in the will The debts of the testator, expenses of administration, or family expenses, shall be paid according to the provisions of the will. If such are insufficient, the properties not disposed of by will, if any, shall be appropriated for that purpose. Personal property; Real property. (Sec. 2, Rule 88)
Note: If there is still a deficiency, it shall be met by contributions of devisees, legatees, or heirs who have entered into possession of portions of the estate before the debts and expenses have been settled and paid (Secs. 2, 3, and 6, Rule 88).

Q: How should contingent claims be paid? A: If the court is satisfied that a contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or if the estate is insolvent, sufficient estate to pay a portion equal to the dividend of the other creditors. (Sec. 4, Rule 88) Q: What must be satisfied before a contingent claim may be allowed by the court? A: 1. Duly filed within the 2 year period allowed for the creditors to present claims; The claim is valid; and The claim became absolute. (Sec. 5, Rule 88)

2. 3.

2. 3.

XPNS: On application by executor or administrator, with written notice to persons interested, and after hearing, real properties can be charged first even though the personal properties are not exhausted when: 1. The personal property is not sufficient to pay the debts, expenses of administration and legacies (Sec. 3, Rule 88); The sale of such personal property would be detrimental to the participants of the estate (Sec. 3, Rule 88); Sale of personal property may injure the business or other interests of those interested of the estate (Sec. 2, Rule 89); The testator has not made sufficient provision for payment of such debts, expenses or legacies (Sec. 2, Rule 89);

Q: What is the consequence if the contingent claim is not presented within the 2 year period after it becomes absolute? A: The assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same (Sec. 4, Rule 88). However, the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased.
Note: If heirs have taken possession of portions of the estate before the debts have been settled, they shall become liable to contribute for the payment of debts and expenses, and the court may, after hearing, settle

2.

3.

4.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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the amount of their several liabilities, and order how much and in what manner each person shall contribute (Sec. 6, Rule 88).

A: Those claims which can proceed independently of the settlement proceeding such as: 1. Actions to recover real or personal property, or an interest therein, from the estate; Enforcement of a lien; Actions to recover damages for an injury to person or property, real or personal. (Sec. 1, Rule 87)

Q: What is the order of payment if estate is insolvent or assets are insufficient? A: The executor or administrator shall pay the debts according to the concurrence and preference of credits provided by Articles 1059 and 2239-2251 of the NCC (Sec. 7, Rule 88). Q: How should the estate in the Philippines of an insolvent non-resident be disposed of? A: It shall be disposed of that his creditors in and outside the Philippines may receive an equal share, in proportion to their respective credits (Sec. 9, Rule 88). Q: When and how should claims proved outside the Philippines against insolvent residents estate be paid? A: Claims proven outside the Philippines where the executor had knowledge and opportunity to contest its allowance may be added to the list of claims proved against the decedent in the Philippines and the estate will be distributed equally among those creditors (Sec. 10, Rule 88).
Note: The benefits in the above provision shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims.

2. 3.

Q: What action may be brought by the executor or administrator? A: Recovery or protection of the property or rights of the deceased, action for causes which survive. (Sec. 2, Rule 87)
Note: When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done shall be maintained against him by an heir or devisee until there is an order of the court assigning the lands to such heir or devisee or until the time allowed for paying debts has expired. (Sec. 3, Rule 87)

Q: What is the concept of a superseades bond? A: It partakes the form of a security posted by the appealing party (who has lost the case in the lower court) to compensate the opposing party for the legal expenses in case it wins also in the higher (appellate) court. Q: What are the requisites in order that executor/administrator may commence and prosecute an action for the recovery of property, if the decedent fraudulently conveys property to defraud his creditors? A: 1. 2. 3. Application of the creditors; Payment of cost and expenses; and Give security therefore to the executor or administrator. (Sec. 9, Rule 87)

Q: When should the court authorize sale, mortgage or other encumbrance of estate to pay debts and legacies in other countries? A: When it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and expenses, the court here may authorize the executor or administrator to sell, mortgage or encumber the property in the same manner as for the payment of debts and legacies in the Philippines (Sec. 5, Rule 89). G. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

2. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF FRAUDULENTLY CONVEYED BY THE DECEASED Q: What are the requisites before a creditor may bring an action for recovery of property fraudulently conveyed by the deceased? A: 1. There is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration;

1. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS Q: What actions may be brought against the executor or administrator?

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

SPECIAL PROCEDINGS
2. In his lifetime, the deceased had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law, the conveyance would be void as against his creditors; The subject of the attempted conveyance would be liable to attachment in his lifetime; The executor or administrator has shown no desire to file the action or failed to institute the same within a reasonable time; Leave is granted by the court to the creditor to file the action; A bond is filed by the creditor; and The action by the creditor is in the name of the executor or administrator (Sec. 10).

3.

Note: The creditor shall have a lien on the judgment recovered for costs and expenses. The last 3 requisites are unnecessary where the grantee is the executor or administrator himself, in which event, the action should be in the name of all the creditors. (Sec. 10; Herrera, Vol. III-A, p. 175, 2005 ed.)

H. DISTRIBUTION AND PARTITION 1. LIQUIDATION Q: What is liquidation? A: Liquidation is the determination of all assets of the estate and payment of all debts and expenses.

4.

5. 6. 7.

Q: Discuss the process for the distribution of the residue of the estate. A:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the estate is insolvent, the creditor shall not enjoy priority over other claimants. The provision in the will should only establish the claim of the creditor against the estate. He must still file his claim according to Section 9, Rule 86 and must comply with the statute of non-claims.

Q: When is the order for distribution of residue made? A: GR: Order of distribution shall be made after payments of all debts, funeral expenses, expenses for administration, allowance of widow and inheritance tax. (Sec. 1, Rule 90) XPN: If the distributees or any of them gives a bond conditioned for the payment of said obligation, the order of distribution may be made even before the payment of all debts, etc. (par. 2, Sec. 1, Rule 90)
Note: The probate court loses jurisdiction over the settlement proceedings only upon payment of all debts and expenses of the obligor and delivery of the entire estate to all the heirs. (Guilas v. Judge of CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972)

It is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. (Herrera, Remedial Law III-A, p 213) Q: May an heir of the deceased sell his undivided share during the pendency of the estate proceedings without the prior approval of the probate court? A: Yes. An heir has the right to sell his undivided or ideal share of the estate, he being the co-owner with other heirs of the estate. Court approval is necessary only if specific property of the estate is sold. (Heirs of Pedro Escanlar v. CA, G.R. No. 119777, Oct. 23, 1997) Q: Does the finality of the approval of the project of partition by itself alone terminate the probate proceeding? A: No. As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated. (Estate of Ruiz v. CA, G.R. No. 118671, Jan. 29, 1996) 3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE Q: What is the remedy of an heir who is entitled to the residue but was not given his share? A: 1. MOTION TO SET ASIDE THE DISTRIBUTION- If an heir appears after the court approved the project of partition, the heir must file a Motion to set aside the distribution with the court so that the court will not proceed with the distribution of the residue. The probate court shall determine whether such heir has a right to participate in the distribution of the residue. If it is proven that the heir has a right, the court may order the revision of the project of partition for its adjustment. MOTION FOR THE RE- OPENING OF THE SETTLEMENT PROCEEDINGS-If the distribution has already been made, a motion for closure has already been granted, the heir must file a Motion for the re-opening of the settlement proceedings within the 30 day

Q: When should declaration of heirship be made? A: It is only after, and not before, the payment of all debts, funeral expenses, charges of administration, allowances to the widow, and inheritance tax shall have been effected that the court should make the declaration of heirs or of such person as are entitled by law to the residue. It should however be made clear that what the court is enjoined from doing so is the distribution of the residue of the estate before its obligations are first paid, but the court is not enjoined from making the declaration of heirs prior to the satisfaction of these obligations. Q: What should the executor or administrator do if all the claims are paid or settled? A: The executor or administrator shall prepare the project of partition reflecting the residue of the estate and how it is to be distributed. However, this is not mandatory. (Herrera, Vol. III-A, p. 213, 2005 ed.) 2. PROJECT OF PARTITION Q: What is project of partition? A: It is a document prepared by the executor or administrator setting forth the manner in which the estate of the deceased is to be distributed among the heirs. (Solivio v. CA, G.R. No. 83308, Feb. 12, 1990)

2.

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

SPECIAL PROCEDINGS
reglementary period, provided the order of closure has not yet become final and executory. 3. ACCION REINVIDICATORIA- If the order of closure has already become final and executory, (Vda. de Lopez v. Lopez, G.R. No. L-28602, Sept. 29, 1970) CFI of Mindoro, 85 Phil. 228, a writ of execution is not the proper procedure allowed by the Rules of Court for the payment of debts and expenses of administration. The proper procedure is for the court to order the sale of personal estate or the sale or mortgage of real property of the deceased and all debts and expenses of the administration should be paid out of the proceeds of such sale or mortgage. The order for the sale or mortgage should be issued upon motion of the administrator and with the written notice to all the heirs, legatees and devisees residing in the Philippines. And when the sale or mortgage is to be made, the regulations contained in Rule 89, Sec. 7 should be complied with. XPNS: 1. To satisfy the distributive shares of the devisees, legatees and heirs in possession of the decedents assets; 2. To enforce payment of the expenses of partition; and 3. To satisfy the costs when a person is cited for examination in probate proceedings.

Q: When is title to property vested to the heirs? A: It is vested from finality of order of distribution. Q: Is the order that determines distributive share appealable? A: Yes. Otherwise, it becomes final. 4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION Q: What are the instances when the probate court may issue writ of execution? A: GR: A probate court cannot issue a writ of execution. In the case of Aldamiz vs. Judge of I. TRUSTEES

1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR


EXECUTOR/ ADMINISTRATOR Accounts are NOT under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be required by the court Court that has jurisdiction may be MTC or RTC TRUSTEE Accounts must be UNDER OATH and filed ANNUALLY

May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies or for the preservation of property or if sale will be beneficial to heirs, legatees or devisees (Upon application to the court with written notice to the heirs) Order of sale has NO TIME LIMIT Approved by the court to settle estate of the decedent NOT EXEMPTED from filing a bond even if such exemption is provided in the will (ratio: bond is only conditioned upon payment of debts) Services of executors or administrator is terminated UPON PAYMENT OF DEBTS of the estate and DISTRIBUTION of property to the heirs MUST PAY the debts of the estate

Court which has jurisdiction is the RTC if appointed to carry into effect provisions of a will; if trustee dies, resigns or is removed in a contractual trust, RTC has jurisdiction in the appointment of new trustee May sell or encumber property of the estate held in trust if necessary or expedient or upon order of the court

Order of sale has NO TIME LIMIT Appointed to carry into effect the provisions of a will or written instrument (contractual trust) May be EXEMPTED from filing a bond if provided in the will or if beneficiaries requested such exemption Trusteeship is terminated upon TURNING OVER THE PROPERTY to beneficiary after expiration of the trust (period may be provided for in the will or trust contract) NO OBLIGATION TO PAY the debts of the beneficiaries or trustor

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What is a trust? A: A legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property. Q: Who is a trustee? A: A trustee is one who is appointed to carry out the provision of the will or any written instrument executed by the trustor. 2. CONDITIONS OF THE BOND Q: What are the conditions of the bond? A: 1. That the trustee will make and return to the court, at such time as it may order, a true inventory of all the estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge;
Note: When the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory if one has already been filed.

3. REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE Q: What are the requisites for the removal or resignation of a trustee? A: 1. 2. 3. Petition filed by parties beneficially interested; Notice to trustee; and Hearing (Sec. 8, Rule 98).

4. GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE Q: What are the grounds for removal or resignation of a trustee? A: 1. 2. 3. 4. Removal appears essential in the interest of petitioners; Insanity; Incapability of discharging the trust; or Unsuitability (Sec. 8, Rule 98).

Note: A trustee may resign his trust if it appears to the court proper to allow such resignation (Sec. 8, Rule 98).

2.

3.

4.

5.

That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed; That he will render upon oath at least once a year until his trust is fulfilled a true account of the property in his hands and of the management and disposition thereof, and such other accounts as the court may order; and That at the expiration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the persons entitled thereto (Sec. 6, Rule 98).

5. EXTENT OF AUTHORITY OF TRUSTEE Q: What is the extent of authority of a trustee? A: Rule 98, applies only to express trust, one which is created by a will or a written instrument. Q: When is there a testamentary trust? A: If a testator has omitted in will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will. After notice to all persons interested, the proper RTC may appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. Q: When is there a contractual trust? A: When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy after due notice to all persons interested, the proper RTC may appoint a new trustee to act alone or jointly with the others, as the case may be.

Q: Is the trustee required to file a bond? A: GR: Yes. Neglect of trustees to file a bond will be interpreted by the court as resignation or decline to accept the trust. XPN: If requested by the testator or by all persons beneficially interested in the trust, the trustee may be exempted from filing a bond. But the court may cancel such exemption anytime. (Sec. 5, Rule 98)

188

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

SPECIAL PROCEDINGS
Q: Can the possession of the trustee of the property ripen into ownership? A: GR: An action to compel a trustee to convey property registered in his name in trust for the benefit of the cestui qui trust does not prescribe. The trustees possession is not adverse and therefore cannot ripen into title by prescription. XPN: Prescription may arise where there is adverse possession of the property. To constitute adverse possession, the following must be present: 1. That the trustee has performed unequivocal acts amounting to an ouster of the cestui qui trust; That such positive acts of repudiation had been made known to the cestui qui trust; and That the evidence thereon should be clear and conclusive. (Ceniza vs. CA, 181 SCRA 552) J. ESCHEAT Q: What is escheat? A: It is a French or Norman term meaning chance or accident. It is the reversion of property to the State in consequence of want of any individual competent to inherit. 1. WHEN TO FILE Q: What are the three instances of escheat? A: 1. When a person dies intestate leaving no heir but leaving property in the Philippines (Sec. 1, Rule 91); Reversion proceedings where sale of property is made in violation of the Constitutional provision; and Dormant accounts for 10 years (Unclaimed Balance Act of Banking Laws). A: No, once the court acquires jurisdiction to hear the petition for escheat by virtue of the publication of the petition for escheat, this jurisdiction cannot be converted into one for the distribution of the properties of the decedent.
Note: For the distribution of the estate to be instituted, the proper petitions must be presented and the proceedings should comply with the requirements of the Rules of Court. (Municipality of Magallon v. Bezore, G.R. No. L-14157, Oct. 26, 1960)

Q: Can the court convert escheat proceedings into settlement of the estate?

3. REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM Q: What is the remedy of the respondent against the petition for escheat? A: When the petition does not state the facts which entitle the petitioner to the remedy prayed for, or even admitting them hypothetically, the respondent may file a MOTION TO DISMISS, in such case the Motion to dismiss plays the role of a demurrer to evidence (Herrera, Remedial Law III-A, p 227-228) K. GUARDIANSHIP Q: What is guardianship? A: It is a trust relation in which one person acts for another whom the law regards as incapable of managing his own affairs.
Note: Guardianship of minors is now governed by the Rule on Guardianship of Minors (AM No. 03-02-05-SC) which took effect on May 1, 2003. While guardianship of incompetents who are not minors is still governed by the provisions of the Rules of Court on Guardianship. (Rule 92- 97)

2.

3.

2.

Q: What is ancillary guardianship? A: It refers to the guardianship in a state other than that in which guardianship is originally granted. 1. GENERAL POWERS AND DUTIES OF GUARDIANS Q: To what extent does guardianship extend? A: Conflicts regarding ownership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding, the court in guardianship proceeding is concerned solely with the wards care and custody and proper administration of his properties (Villoria

3.

2. REQUISITES FOR FILING OF PETITION Q: What are the requisites for filing a petition? A: 1. 2. 3. A person died intestate; He left no heirs or persons by law entitled to the same; and The deceased left properties in the Philippines. (Sec. 1, Rule 91)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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v. Administrator of Veteran Affairs, L-9620, June 1957) 2. Q: What are the general powers and duties of guardians? A: 1. To have the care and custody of the person of the ward, and/or the management of his estate; Pay the debts of the ward; To settle accounts, collect debts, and appear in actions for the ward; Manage the estate of the ward frugally, and apply the proceeds to the maintenance of the ward; Render verified inventory within 3 months after his appointment and annually thereafter, and upon application of interested persons; Render to court for its approval an accounting of the property for 1 year from his appointment and as often thereafter as may be required, and upon application of interested persons Consent to a partition of real or personal property owned by ward jointly or in common with others. (Secs. 1-8, Rule 96; Sec. 17, A.M. No. 03-02-05-SC) 3. to the possession or knowledge of any other person for him; To faithfully execute the duties of his trust, manage and dispose of the estate according to the rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived there from, and of the management and disposition of the same, at the time designated by the rules and such other times as the court directs; and at the expiration of his trust, settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and To perform all orders required by the court (Sec. 1, Rule 94; Sec.14, A.M. No. 03-02-05-SC).

2. 3. 4.

5.

6.

4.

7.

Q: What is the purpose of the bond? A: It is for the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds (Herrera, Vol. III-A, p. 282, 2005 ed.)
Note: The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian. (Guerrero v. Teran, G.R. No. L4898, Mar. 19, 1909)

Q: What is the order of liability of the wards property? A: 1. Personal estate and income of real estate 2. Real estate Q: What are the requisites to authorize the guardian to join in the partition proceedings after hearing? A: 1. 2. 3. Hearing Notice to relatives of the ward; and Careful investigation as to the necessity and propriety of the proposed action (Section 5)

Q: Does the requirement of posting a bond extend to parents who are the legal guardians of their minor children? Explain. A: GR: No, if the market value or annual income of the child is P 50,000 or below. XPN: If the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians (Sec. 16, A.M. No. 03-02-05SC).

2. CONDITIONS OF THE BOND OF THE GUARDIAN Q: What are the conditions of the bond of the guardian? A: 1. To make and return to the court, within 3 months, a true and complete inventory of all the estate of his ward which shall come to his possession or knowledge or

190

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

SPECIAL PROCEDINGS
3. RULE ON GUARDIANSHIP OVER MINOR Q: Who may petition for appointment of guardian for resident? A: 1. Any relative; 2. Other person on behalf of the minor; 3. Minor himself is 14 years of age; or 4. Secretary of Social Welfare and Development AND by the Secretary of Health in case of insane minor who needs to be hospitalized. (Section 2, AM-03-02-05-SC) Q: Is court appointment necessary to enable the father and the mother to exercise joint legal guardianship over the person and property of minor? A: No. The father and the mother shall jointly exercise legal guardianship over the person and property of their minor without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on Guardianship (Section 1, AM -03-02-05-SC) Q: What would the court do if an issue arises as to who has the better right or title to the properties conveyed in the guardianship proceeding? A: GR: The issue should be threshed out in a separate ordinary action as it is beyond the jurisdiction of the guardianship court. XPN: When the wards right or title to the property is clear and undisputable, the guardianship court may issue an order directing its delivery or return. Q: What are the grounds for the appointment of a guardian over the person or property, or both, of a minor? A: 1. 2. 3. Death, continued absence, or incapacity of his parents; Suspension, deprivation or termination of parental authority; Remarriage of surviving parent, if the latter is found unsuitable to exercise parental authority; or When the best interests of the minor so require (Sec. 4, A.M. No. 03-02-05-SC). A: 1. 2. 3. 4. 5. Moral character; Physical, mental, and psychological condition; Financial status; Relationship of trust with the minor; Availability to exercise the powers and duties of a guardian for the full period of the guardianship; Lack of conflict of interest with the minor; and Ability to manage the property of the minor (Sec. 5, A.M. No. 03-02-05-SC).

6. 7.

Note: The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. (Sec.9, A.M. No. 03-02-05-SC).

Q: Who may be appointed as guardian of a minor? A: In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing, as far as practicable, the following order of preference: 1. Surviving grandparent and, in case several grandparents survive, the court shall select any of them taking into account all relevant considerations; 2. Oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified; 3. Actual custodian of the minor over 21 years of age, unless unfit or disqualified; 4. Any other person, who in the sound discretion of the court would serve the best interests of the minor (Sec. 6, A.M. No. 03-02-05-SC). Q: What are the grounds for opposition to petition of guardianship of minors? A: 1. 2. Majority of the alleged minor; or Unsuitability of the person for whom letters are prayed for (Sec. 10, A.M. No. 03-02-05-SC).

Q: How may a petition for guardianship of minors or incompetents be opposed? A: Any interested person may contest the petition by filing a written opposition and pray that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec. 4, Rule 9).

4.

Q: What are the factors to be considered for the appointment of guardian of minors?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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L. ADOPTION Q: What is adoption? A: It is a juridical act, a proceeding in rem, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. Q: What is the State policy on adoption? A: It is the policy of the State to ensure that every child remains under the care of his or her parent/s and be provided with love, care, understanding and security towards the full and harmonious development of his personality. Q: What is a Child Legally Available for Adoption? A: A Child Legally Available for Adoption refers to a child in whose favor a certification was issued by the DSWD that he/she is legally available for adoption after the fact of abandonment or neglect has been proven through the submission of pertinent documents, or one who was voluntarily committed by his/her parent(s) or legal guardian. (Sec. 2(5), R.A. 9523). Q: What is the requirement in order that the child may be declared legally available for adoption? A: There must be a certification which shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature. The certification, shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption and in an inter-country adoption proceeding (Sec. 8, Ibid.). Q: Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them? A: Indeed, publication of the scheduled hearing for the petition for adoption is necessary for the validity of a decree of adoption but not for the purpose merely of taking a deposition. In taking a deposition, no substantial rights are affected since depositions may or may not be presented or may even be objected to when formally offered as evidence at the trial of the main case later on. the philosophy behind adoption statutes is to promote the welfare of the child and every reasonable intendment should be sustained to promote that objective. (Republic v. Elepano, G.R. No. 92542, Oct. 15, 1991).
Note: The necessary consequence of the failure to implead the civil registrar as an indispensable party and to give notice by publication of the petition for correction of entry was to render the proceeding of the trial court, so far as the correction of entry was concerned, null and void for lack of jurisdiction both as to party and as to the subject matter. (Republic v. CA, G.R. No. 103695, Mar. 15, 1996).

A: No. Adoption cannot be had without the written consent of a natural parent who has allegedly abandoned them. Abandonment cannot be merely presumed, it must be duly proven. Moreover, there should be proof of emotional abandonment. (Cang v. CA, GR No. 105308, Sept. 25, 1998). Q: Is publication of the hearing for adoption necessary for the adoption to be valid?

Q: What is the effect of adoption created under the law of a foreign country? A: It is entitled to registration in the corresponding civil register of the Philippines. It is to be understood, however, that the effects of such adoption shall be governed by laws of the Philippines. (Marcaida v. Aglubat, G.R. No. L-24006, Nov. 25, 1967)

1. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION DOMESTIC Family Court where adopter resides INTER-COUNTRY Inter-Country Adoption Board (Petition may also be filed with Family Court where adoptee resides; FC to endorse petition to ICAB) A foreigner must meet the following requirements in order to be qualified to adopt in the Philippines under the Inter-Country Adoption Act: a) GR: at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time

Jurisdiction

Who May adopt

1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for

192

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

SPECIAL PROCEDINGS
his children in keeping with the means of the family. The requirement of a 16-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptees parent; 2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in his country may be waived for the following: (i) A former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; (ii) One who seeks to adopt the legitimate child of his Filipino spouse; (iii) One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse. (3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: (i) Iif one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or (ii) If one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or (iii) If the spouses are legally separated from each other. In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses. Within the Philippines (6 month period discretionary upon the court to shorten period or exempt parties from trial custody) of application; XPN: if the adopter is the parent by nature of the child to be adopted or the spouse of such parent, he/she is not required to meet the above age requirement; b) If married, his/her spouse must jointly file for the adoption; c) With capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; d) Not convicted of a crime involving moral turpitude; e) Eligible to adopt under his/her national law; f) In a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; g) Agrees to uphold the basic rights of the child as embodied under Philippine family laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; h) Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and i) Possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws.

Supervised Custody

Trial

Within the country of the adopter (Mandatory; all expenses borne by adopter)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Petition adoption for May include 1. Prayer for change of name 2. Rectification of simulated birth 3. Declaration that child is abandoned, dependent or neglected child or foundling 1. Any child legally declared available for adoption 2. Legitimate or illegitimate child of a spouse 3. Person of legal age N/A

Who may adopted

be

Child legally available for adoption

Supporting Documents

Publication

Where to application

file

3 successive weeks in a newspaper of general circulation in the province or city where the court is situated Family Court which has jurisdiction

1. 2. 3. 4. 5. N/A

Income Tax Returns Police Clearance Character Reference Family Picture Birth Certificate of adopter

May be made through foreign placement agency which will then submit application to the ICAB

2. DOMESTIC ADOPTION a. EFFECTS OF ADOPTION Q: What are the effects of adoption? A: 1. All legal ties between the biological parents and the adoptee shall be severed and the same shall then be vested on the adopter/s, except where the biological parent is the spouse of the adopter; The adoptee shall be considered the legitimate child of the adopter/s for all intents and purposes and shall be entitled to all the rights and obligations provided by law to legitimate children born to them without discrimination of any kind; and In legal and intestate succession, the adopter/s and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his biological parent/s had left a will, the law on testamentary succession shall govern. (Secs. 16-18, R.A. 8552)

Q: What is the effect of the petition for adoption in relation to use of surnames? A: Pursuant to Art. 189 of the Family Code which states that the adopted child shall acquire the reciprocal rights and obligations arising from the relationship of a parent and child, including the right of the adopted to use the surname of the adopter, the adoptee has both the right and obligation to use the surname of the adopter, and that upon reaching the age of majority, he may file a petition for a change of surname, as the use by the adoptee of the surname of the adopter is more an incident rather than the object of adoption proceedings. (Republic v. CA, G.R. No. 97906, May 21, 1992)
Note: This ruling may imply that what may be included in a petition for adoption is only the first or given name of the adoptee and not the surname, for he has the right and obligation, at least initially to use the surname of the adopter. (Agpalo, Handbook on Special Proceedings, p. 193, 2003 ed.) While the right of a natural parent to name the child is recognized, guaranteed and protected under the law, the so-called right of an adoptive parent to re-name an adopted child by virtue or as a consequence of adoption, even for the most noble intentions and moving supplications, is unheard of in law and consequently cannot be favorably considered. To repeat, the change of the surname of the adoptee as a result of the adoption and to follow that of the adopter does not lawfully extend to or include the proper or given name. (Republic vs. Hernandez, G.R. No. 117209, Feb. 9, 1996).

2.

3.

Note: The decree of adoption shall order the Civil Registrar where the adoption was registered to issue a certificate of birth which shall not bear that it is a new or amended certificate and shall state among others, the following: registry number, registration date, name of child, sex, date of birth, place of birth, name and citizenship of adoptive mother and father, and the date and place of their marriage, when applicable. [Sec. 16, 3(b)]

194

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

SPECIAL PROCEDINGS
b. INSTANCES WHEN ADOPTION MAY BE RESCINDED Q: What are the grounds for rescission of adoption? A: Upon the petition of the adoptee, with the assistance of the DSWD if a minor or though over 18 is incapacitated, on any of the following grounds committed by the adopter/s: 1. Repeated physical and verbal maltreatment by the adopter/s despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Sexual assault or violence; or 4. Abandonment and failure to comply with parental obligations (Sec. 19, Ibid.).
Note: Only the adoptee can rescind the decree of adoption. However, the adopter is not left without any remedy as he may deny to an adopted child his legitime and by will, may freely exclude him from having a share in the disposable portion of his estate. The new law had already abrogated or repealed the right of an adopter under the Civil and Family Codes to rescind a decree of adoption (Lahom v. Sibulo, G.R. No. 1439889, July 14, 2003).

permanently residing abroad where the petition is filed, the supervised trial custody is taken, and the decree of adoption is issued outside of the Philippines. [Sec. 3(a)] a. WHEN ALLOWED Q: When may inter-country adoption be allowed? A: It shall only be allowed when all the possibilities for domestic adoption of the child have been exhausted and that inter-country adoption is in the best interest of the child. (Sec. 27a) It is allowed when the adopter is an alien or a Filipino citizen permanently residing abroad. Moreover, his qualifications include: 1. At least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent; If married, his/her spouse must jointly file for adoption; Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws and has undergone the appropriate counseling from an accredited counselor in his/her country; Has not been convicted of a crime involving moral turpitude; Is eligible to adopt under his/her national law; Is in a position to provide proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; Agrees to uphold the basic rights of the child as embodied under the Philippine laws, the U.N. Convention of the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; Comes from another country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and Possesses all the qualifications and none of the disqualifications provided herein and other applicable laws. (Sec. 9, R.A. 8043).

2. 3.

c. EFFECTS OF RESCISSION OF ADOPTION Q: What are the effects of rescission of adoption? A: 1. The parental authority of the adoptee's biological parent/s, if known, or the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated; The reciprocal rights and obligations of the adopter/s and the adoptee to each other shall be extinguished; The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his or her original birth certificate; The successional rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission; and The vested rights acquired prior to judicial rescission shall be respected (Sec. 23, Ibid.). 4. 5. 6.

2.

3.

7.

4.

8.

5.

3. INTER-COUNTRY ADOPTION (R.A. 8043) Q: What is inter-country adoption? A: It refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen

9.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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b. FUNCTIONS OF THE RTC Q: What is the function of the RTC in inter-country adoption? A: The Court, after finding that the petition is sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the ICAB for appropriate action. (Sec. 32, Rule on Adoption). The application for adoption shall be filed with the RTC having jurisdiction over the child, or the InterCountry Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents. c. BEST INTEREST OF THE MINOR STANDARD Q: What is the Best Interest Standard? A: It refers to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor. (Sec. 14) M. WRIT OF HABEAS CORPUS Q: What is writ of habeas corpus? A: It is a writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place with the day and the cause of his caption and detention to do, submit to and receive whatsoever, the court or judge awarding the writ shall consider in that behalf.
Note: It is regarded as palladium of liberty, a prerogative writ which does not issue as a matter of right but in the sound discretion of the court or judge. of liberty must be actual and effective, not merely nominal or moral. (Ilusorio v. Bildner, G.R. Nos.13578990, May 16, 2000)

Q: What is the nature of the petition? A: It is an inquisition by the government at the suggestion and instance of an individual, most probably, but still in the name and capacity of the sovereign is a proceeding in rem. It is also instituted for the purpose of fixing the status of a person and that there can be no judgment entered against anybody since there is no real plaintiff and defendant. (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981)
Note: In habeas corpus cases, the judgment in favor of the applicant cannot contain a provision for damages.

1. CONTENTS OF THE PETITION Q: What should a verified petition for a writ of habeas corpus contain? A: 1. That the person in whose behalf the application is made is imprisoned or restrained of his liberty; The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; The place where he is so imprisoned or restrained, if known; A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear. (Sec. 3, Rule 102) 2. CONTENTS OF THE RETURN Q: What are the contents of the return? A: When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably: 1. Whether he has or has not the party in his custody or power, or under restraint; If he has the party in his custody or power, or under restraint, the authority

2.

3. 4.

Q: To what instances may habeas corpus extend? A: 1. Cases of illegal confinement or detention by which a person is deprived of his liberty; and Cases by which the rightful custody of the person is withheld from the person entitled thereto. (Sec. 1, Rule 102)

2.

Note: To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action. The illegal restraint

2.

196

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

SPECIAL PROCEDINGS
and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. (Sec. 10, Rule 102) process, render the judgment, or make the order. (Sec. 4, Rule 102). 6. If the person is charged or convicted of an offense in the Philippines. (Sec. 4, Rule 102). 7. If the person is suffering imprisonment under lawful judgment. (Sec. 4, Rule 102). 8. In case of three-day retention of a suspect for three days without charge, pursuant to Sec. 18 of the Human Security Act. 9. When person is serving final sentence imposed by court. 10. For asserting or vindicating a denial of right to bail. 11. For correcting errors in appreciation of facts or of law.
Note: Issuance of a writ of habeas corpus may not lie in order to revive a settled issue of the validity of the writ of preliminary injunction issued in an agrarian case allegedly on the ground of the existence of a tenancy relationship between the parties arising from their arrest for having assaulted persons in authority. (Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996). Loss of the records of the case after petitioner, by his own admission, was already convicted by the trial court of the offense charged will bar the issuance of a writ of habeas corpus. The loss must have occurred prior to the filing of the information against him. (Feria v. CA, G.R. No. 122954, Feb. 15, 2000). It has been noted that the ORDER contains a provision enjoining the prosecution of the Accused in the Criminal Case. That is error. If the Accused was illegally detained because he was arrested without a preliminary examination, what should have been done was to set aside the warrant of arrest and order the discharge of the Accused, but without enjoining the Municipal Judge from conducting a preliminary examination and afterwards properly issuing a warrant of arrest. Habeas Corpus proceedings are not meant to determine criminal responsibility. (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981). In case of an illegal arrest, the petition for a writ of habeas corpus will still not prosper if the detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of an order denying bail. (Velasco v. CA, G.R. No. 118644, July 7, 1995). Habeas Corpus may be had to give retroactive effect to a previous ruling of the Supreme Court favorable to the accused when the accused has already served the full term for a crime which the Court has declared nonexistent. (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30, 1971). However, it will not lie if the penalty of imprisonment imposed by the court is longer than that allowed by law. Such error of judgment may be corrected by appeal or by the

3.

4.

3. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION Q: What is the difference between a preliminary citation and a peremptory writ? A: 1. Preliminary citation is issued when a government officer has the person in his custody, the illegality of which is not patent, to show cause why the writ of habeas corpus should issue. Peremptory writ is issued when the cause of the detention appears to be patently illegal and the non-compliance therewith is punishable. (Lee Yick Hon v. Collector of Customs, G.R. No. 16779, Mar. 30, 1921). 4. WHEN NOT PROPER/APPLICABLE Q: When is habeas corpus not applicable? A: 1. 2. When detained under a lawful cause. In case of invasion or rebellion or when public safety requires it, under Art. III, Sec. 15, 1987 Constitution. When in case of invasion or rebellion or when public safety requires it, for a period not exceeding 60 days, under Art. 7, Sec. 18, 1987 Constitution. If the jurisdiction of the court to try the person detained appears after the writ is allowed. (Sec. 4, Rule 102). If the person is in custody of an officer under process issued by a court or by virtue of a judgment or order of a court of record which has jurisdiction to issue the

2.

3.

4.

5.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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President. (Pomeroy v. Director of Prisons, G.R. No. L14284, Feb. 24, 1960). The writ of habeas corpus cannot be issued in cases in which the Bureau of Immigration has duly ordered the deportation of undocumented aliens, specifically those found guilty of illegally entering the Philippines with the use of tampered and previously cancelled passports. (Tung Chin Hui v. Rodriguez, G.R. No. 141938, April 2, 2001).

effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be released. 6. DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. A: Refer to page 205. 7. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (AM No. 03-04-04-SC) Q: Who may file a petition for custody of minor? A: Any person may file a verified petition for the rightful custody of a minor. The party against whom it may be filed shall be designated as the respondent. (Sec. 2, AM No. 03-04-04-SC). Q: Where should a petition for custody of minor be filed? A: Family courts in the province or city where the petitioner resides or where the minor may be found. (Sec. 3, AM No. 03-04-04-SC) Q: Whether Family Courts have concurrent jurisdiction with the Supreme Court and the Court of Appeals in petitions where the custody of minors is at issue? A: Yes. The Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. The provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue. (Thornton v. Thornton, G.R. No. 154598, Aug. 16, 2004). Q: What are the contents of the verified petition? A: 1. 2. The personal circumstances of the petitioner and of the respondent. The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent. The material operative facts constituting deprivation of custody.

Q: May a wife secure a writ of habeas corpus to compel her husband to live with her in the conjugal home? A: No. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right. That is a matter beyond judicial authority and is best left to the man and womans free choice. (Ilusorio v. Bildner, G.R. No. 139789, May 12, 2000).

5. WHEN WRIT DISALLOWED/DISCHARGED Q: In what instances shall a writ be disallowed or discharged? A: 1. In cases of supervening events such as issuance of a process and filing of an information (Velasco v. CA, G.R. No. 118844, July 7, 1995); In cases of improper arrest or lack of preliminary investigation (Paredes v. Sandiganbayan, G.R. No. 89989, Jan. 28, 1991); and In cases of invalid arrest due to deportation cases cured by filing of deportation proceedings (Santos v. Commissioner of Immigration, G.R. No.L25694, Nov. 29, 1976).

2.

3.

Note: In all petitions for habeas corpus, the court must inquire into every phase and aspect of petitioners detention- from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition and only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been satisfied. (Bernarte v. CA, G.R. No. 107741, Nov. 18, 1996)

When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall order his discharge from confinement, but such discharge shall not be

3.

198

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

SPECIAL PROCEDINGS
4. 5. Such other matters which are relevant to the custody of the minor. Certificate of Non-Forum Shopping signed personally by the petitioner. (Sec. 4, AM No. 03-04-04-SC) emotional violence which endangers the safety and best interests of the minor; The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent; The health, safety and welfare of the minor; Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent; The nature and frequency of contact with both parents; Habitual use of alcohol, dangerous drugs or regulated substances; Marital misconduct; The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit. (Sec. 14, AM No. 03-04-04-SC)

2.

3. Q: When is a child not allowed to be separated from the mother? A: Under Article 213 (2) of the Family Code, no child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. Q: When will the court take into consideration the choice of the child? A: The child, who is over 7 years of age, may choose which parent he prefers to live with, unless the parent so chosen is unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. (Art. 213, Family Code)
Note: If both parents are unfit, the court may designate other persons or an institution to take charge of the child, such as the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person.

4.

5. 6. 7. 8.

9.

Q: What should be considered in awarding the custody of minor? A: The court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. (Sec. 14, AM No. 03-0404-SC). Q: What is the Best Interest Standard? A: It refers to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor. (Sec. 14, AM No. 03-04-04-SC) Q: What are the other factors that the court may consider in awarding custody? A: 1. Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or

Q: Would a decision rendering judgment on the issue of custody of a child in a nullity of marriage case constitute as res judicata on a pending habeas corpus case on the same matter? A: Yes. By filing the case for declaration of nullity of marriage petitioner automatically submitted the issue of the custody of the child as an incident thereof. Section 21 of the "Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable Marriages" directs the court taking jurisdiction over a petition for declaration of nullity of marriage to resolve the custody of common children, by mere motion of either party, it could only mean that the filing of a new action is not necessary for the court to consider the issue of custody of a minor. (Yu v. Yu, G.R. No. 164915, March 10, 2006). Q: What are the stages in the pre-trial? A: 1. 2. First stage the parties may agree on the custody of the minor. Second stage the trial court will direct the parties to secure the services of a mediator if the parties do not agree on the custody of the minor. (Sec. 12, AM No. 03-04-04-SC)

Note: If the second stage does not produce an amicable settlement, the court will proceed with the pre-trial conference. Pre-trial is mandatory. (Sec. 12, AM No. 03-04-04-SC)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: What is the order of preference in awarding provisional custody? A: As far as practicable, the order of preference shall be observed: 1. Both parents jointly; 2. Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit; 3. The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified; 4. The eldest brother or sister over twentyone years of age, unless he or she is unfit or disqualified; 5. The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or 6. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor. Q: May the court award temporary visitation rights in the provisional custody order? A: Yes, the court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified. Q: What should the court award after the hearing? A: 1. 2. Care, custody and control of each child as will be for its best interest. Court may order either or both parents to support or help support the child, irrespective of who may be its custodian. The fact that the father has recognized the child may be a ground for ordering him to give support, but not for giving him custody of the child. Court may permit the parent who is deprived of care and custody to visit the child or have temporary custody thereof in an order that is just and reasonable. (Sec. 18, AM No. 03-04-04-SC)

A: No, the court should conduct thorough trial on all matters relevant to the welfare and interests of the child. (Laxamana v. Laxamana, G.R. No. 144763, Sept. 3, 2002) Q: Can the minor child be brought out of the country without leave from court while the petition is pending? A: The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending. The court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the minor from the Philippines without the permission of the court. (Sec. 16, AM No. 03-04-04SC) N. WRIT OF AMPARO (AM No. 07-9-12-SC) Q: What is writ of amparo? A: It is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Sec. 1)
Note: The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. (Deliberations of the Committee on the Revision of the Rules of Court, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept. 20, 2008)

Q: What are extralegal killings? A: Killings committed without due process of law, legal safeguards or judicial proceedings. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) These include the illegal taking of life regardless of the motive, summary and arbitrary executions, salvaging even of suspected criminals, and threats to take the life of persons who are openly critical of erring government officials and the like.

3.

Q: May the court award the custody of the minors based merely on psychiatric report and agreement of the parties?

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

SPECIAL PROCEDINGS
Q: What are enforced disappearances? A: An arrest, detention or abduction of a person by a government official or organized groups or private individual acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) 1. COVERAGE Q: What is the scope of the Writ of amparo? A: It covers extralegal killings and enforced disappearances or threats thereof. It is available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. 2. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. A: Refer to page 205. 3. DIFFERENCES BETWEEN WRIT OF AMPARO AND SEARCH WARRANT Q: What is the difference between a Writ of Amparo from a Search Warrant? A: In the October 7, 2008 decision of the Supreme Court in the case of The Secretary of National Defense vs. Manalo, the Court said that the production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things 3. under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz: Section 1. Motion for production or inspection order. Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control. A search warrant is a court order issued by a judge or magistrate judge that authorizes the law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found. A writ of amparo is a form of constitutional relief. 4. WHO MAY FILE Q: Who may file the petition? A: Any aggrieved party may file the petition. It may also be filed by any qualified person or entity in the following order: 1. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.

2.

NOTE: The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. (Sec. 2).

5. CONTENTS OF RETURN Q: What is the content of the verified return? A: Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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1. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: a. to verify the identity of the aggrieved party; b. to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; c. to identify witnesses and obtain statements from them concerning the death or disappearance; d. to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; e. to identify and apprehend the person or persons involved in the death or disappearance; and f. to bring the suspected offenders before a competent court. Other matters relevant to the investigation, its resolution and the prosecution of the case. A: The omnibus waiver rules states that all defenses not raised in the return are deemed waived. (Sec. 10). 8. PROCEDURE FOR HEARING Q: What is the nature of the hearing? A: The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. (Sec. 12). Q: How long should the hearing last? A: The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. (Sec. 13) 9. INSTITUTION OF SEPARATE ACTION Q: May a separate action be filed after filing a petition for a writ of amparo? A: Yes. It does not preclude the filing of separate criminal, civil or administrative actions. (Sec. 21) 10. EFFECT OF FILING A CRIMINAL ACTION Q: What is the effect if a prior criminal action has been filed? A: No petition for a writ of amparo shall be filed. The reliefs under the writ shall be available by motion in the criminal case. (Sec. 22) The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. 11. CONSOLIDATION Q: What happens if criminal action is filed subsequent to a petition for writ of amparo? A: The petition for the writ shall be consolidated with criminal action. (Sec. 23) Q: What happens if a criminal action and a separate civil action are filed subsequent to a petition for writ of amparo? A: The petition for writ of amparo shall be consolidated with the criminal action.
Note: After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

2.

3.

4.

5.

Note: A general denial of the allegations in the petition shall not be allowed.

6. EFFECTS OF FAILURE TO FILE A RETURN Q: What happens when the respondent fails to file a return? A: The court, justice or judge shall proceed to hear the petition ex parte. (Sec. 9) 7. OMNIBUS WAIVER RULE Q: What is the Omnibus Waiver Rule?

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

SPECIAL PROCEDINGS
12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT Q: What are interim reliefs available? A:
1. 2. 3. 4. PETITIONER Temporary protection order; Inspection order; Production order; Witness protection order. (Sec. 14) HOW INITIATED Upon motion or motu proprio RESPONDENT 1. 2. Inspection order; Production order. (Sec. 15)

Temporary Protection Order

Inspection Order

Upon verified motion and after due hearing

Production Order

Upon verified motion and after due hearing

Witness Protection Order

Upon Motion or Motu Proprio

THE COURT SHALL Order the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. Order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.

13. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO Q: What is the quantum of evidence required in a petition for a writ of amparo? A: The parties shall establish their claims by substantial evidence. (Sec. 17) The respondent who is a private individual or entity must prove that ordinary diligence as required by the applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been

regularly performed to evade responsibility or liability.


Note: No writ of amparo may be issued unless there is a clear allegation of the supposed factual and legal basis of the right sought to be protected. A threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. (Canlas v. Napico Homeowners Association, G.R. No. 182795, June 5, 2008).

Q: Raymond and Reynaldo Manalo escaped from captivity and surfaced of the armed forces. But while the two admit that they are no longer in

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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detention and are physically free, they assert, that they are not free in every sense of the word as their movements continue to be restricted for fear that the people they have named in their judicial affidavits and testified against are still at large and have not held accountable. The Manalo brothers claim that they are under the threat of being once again abducted, kept captive or even killed, which constitute a direct violation of their right to security of person. They filed a petition for writ of amparo. Should the court granted the petition? A: Yes, the Manalo brothers right to security as freedom from threat is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military. In blatant violation of guarantees to life, liberty and security, these rights are snuffed out from victims of extralegal killings and enforced disappearances. The writ of amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) O. WRIT OF HABEAS DATA (AM No. 08-1-16-SC) 1. SCOPE OF WRIT Q: What is the scope of the writ? A: The writ covers instances wherein a persons right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. 2. AVAILABILITY OF WRIT Q: What is writ of habeas data? 4. A: It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. It is a procedure designed to safeguard individual freedom from abuse in the information age. (Sec. 1) Information or data written, tends to threaten violation of constitutional right to life, liberty or property, and may be ordered destroyed by the court. 3. DISTINGUISH FROM HABEAS CORPUS AND WRIT OF AMPARO Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. A: Refer to page 205. 4. WHO MAY FILE Q: Who may file the petition? A: Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: 1. Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or In default thereof, any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity. (Sec. 2) 5. CONTENTS OF PETITION Q: What are the contents of the verified petition? A: 1. 2. The personal circumstances of the petitioner and the respondent The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party The actions and recourses taken by the petitioner to secure the data or information The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of. Such other relevant reliefs as are just and equitable. (Sec. 6)

2.

3.

5.

6.

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

SPECIAL PROCEDINGS
6. CONTENTS OF RETURN Q: What should the respondent allege in his verified return? A: The respondent, within 5 working days from the service of the writ, unless reasonably extended by the Court, shall allege: 1. The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; In case of respondent in charge, in possession or in control of the data or information subject of the petition: a. A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; b. The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and c. The currency and accuracy of the data or information held; and Other allegations relevant to the resolution of the proceeding. 2. A: 1. When a subsequent criminal action is filed, the Petition for the writ of Habeas Data shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action.

Note: After consolidation, the procedure under the Rule shall continue to govern the disposition of the reliefs in the petition. (Sec. 21)

2.

9. EFFECT OF FILING A CRIMINAL ACTION Q: What is the effect of an institution of a criminal action? A: No separate petition for the writ shall be filed. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case. (Sec. 22). 10. INSTITUTION OF SEPARATE ACTION Q: Does the filing of a petition for the writ of habeas data prohibit the filing of separate criminal, civil or administrative actions? A: The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. (Sec. 20). 11. QUANTUM OF PROOF IN APPLICATION FOR WRIT OF HABEAS DATA Q: What is the quantum of evidence required in a petition for a writ of habeas data? A: The court shall render judgment within (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. (Sec. 16.).

3.

Note: A general denial of the allegations in the petition shall not be allowed.

7. INSTANCES WHEN PETITION BE HEARD IN CHAMBERS Q: What are the instances when a petition for a writ of habeas data may be heard in chambers? A: It may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or State secrets, or when the data or security and that it cannot be divulged to the public due to its nature or privileged character. (Sec. 12) 8. CONSOLIDATION Q: What happens when a criminal and/or civil action is filed after the filing of the petition for writ of habeas data?

Q: What are the differences between the writs? A:


HABEAS CORPUS You have the body AMPARO To protect HABEAS DATA Literal interpretation You have the data KALIKASAN It is a Filipino word which means nature in English

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Governing rule A.M. No. 08-1-16-SC Description Remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

Rule 102 Writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

A.M. No. 07-9-12-SC Remedy available to any person whose right to life, liberty, and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

A.M. No. 09-6-8-SC


Special remedy available to a natural or juridical person, entity authorized by law, peoples organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

Coverage Involves the right to liberty of and rightful custody by the aggrieved party. Involves the right to life, liberty, and security of the aggrieved party and covers extralegal killings and enforced disappearances.
There is an actual or threatened violation of the aggrieved partys right.

Involves the right to privacy in life, liberty, and security of the aggrieved party and covers extralegal killings and enforced disappearances. Rights violated

Constitutional right to a balanced and healthful ecology.

There is an actual violation of the aggrieved partys right.

There is an actual or threatened violation of the aggrieved partys right. Where to file RTC where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner; or with SC, CA or SB when the action concerns public data files or government offices.

There is an actual or threatened violation of ones right to a healthful and balanced ecology involving environmental damage.

RTC or any judge thereof, CA or any member thereof in instances authorized by law; or SC or any member thereof.

RTC of the place where the threat, act or omission was committed or any of its elements occurred; SB or any justice thereof; CA or any justice thereof; SC or any justice thereof.

In SC or any stations of the CA.

Habeas Corpus

1.

Party for whose relief it is intended; or Any person on his behalf

2.

Habeas Data Who may file a petition In the following order: 1. Any aggrieved party; 1. Any member of the 2. However, in cases of extralegal immediate family killings and enforced 2. Any ascendant, disappearances: descendant, or a. Any member of the collateral relative of immediate family the aggrieved party b. Any ascendant, th within the 4 civil descendant, or collateral degree of relative of the aggrieved consanguinity or party within the 4th civil affinity degree of consanguinity 3. Any concerned citizen, or affinity organization,

Amparo

Kalikasan A natural or juridical person, entity authorized by law, peoples organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency.

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

SPECIAL PROCEDINGS
association institution or

May or may not be an officer.

Respondent Public official or employee or a private individual or entity engaged Public official or employee in the gathering, collecting or storing or a private individual or of data or information regarding the entity. person, family, home and correspondence of the aggrieved party. Enforceability of the writ

Public official or employee, private individual or entity.

If granted by SC or CA: enforceable anywhere In the Philippines; If granted by RTC: enforceable only within the judicial district

Enforceable anywhere in the Philippines regardless of who issued the same

Enforceable anywhere in the Philippines

Docket fees Payment is required Note: Rule on indigent petitioner applies. Served upon the person to whom it is directed, and if not found or has not the prisoner in his custody, to the other person having or exercising such custody Officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found Petitioner is exempted from payment Payment is required. Note: Rule on indigent petitioner applies. Service of writ Petitioner is exempted from payment

Served upon the respondent personally; or substituted service

Served upon the respondent personally; or substituted service

Served upon the respondent personally; or substituted service.

Person who makes the return

Respondent

Respondent

Respondent

On the day specified in the writ

When to file a return The respondent shall file a verified Within 5 working days written return together with after service of the writ, supporting affidavits within 5 the respondent shall file a working days from service of the verified written return writ, which period may be together with supporting reasonably extended by the Court affidavits. for justifiable reasons. Habeas Data Return If issued by RTC: returnable If issued by RTC: returnable before such court; before such court; If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred; If issued by SC or any of its justices: returnable before such court, or before SB, If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored; If issued by SC or any of its Amparo

Within nonextendible period of 10 days after the service of writ.

Habeas Corpus

Kalikasan

If granted by the SC or CA: returnable before the court or any member or before RTC or any judge thereof; If granted by RTC: returnable before such court

If issued by SC, returnable before such court or CA.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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justices: returnable before such court, or before SB, CA, or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored General denial Not prohibited. Not allowed. Not allowed. Not allowed. Liability of the person to whom the writ is directed if he refuses to make a return Forfeit to the aggrieved party the sum of Imprisonment or fine for Imprisonment or fine for Indirect contempt. P1000, and may also be committing contempt. committing contempt. punished for contempt. Hearing The hearing including the preliminary conference shall Summary hearing shall be Summary hearing shall be Date and time of not extend beyond sixty (60) conducted not later than 7 conducted not later than 10 hearing is specified in days and shall be given the days from the date of working days from the date the writ. same priority as petitions for issuance of the writ. of issuance of the writ. the writs of habeas corpus, amparo and habeas data. Period of appeal Within 48 hours from notice of the judgment or final order appealed from. 5 working days from the date of notice of the adverse judgment. 5 working days from the date of notice of the judgment or final order. Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration. Kalikasan 1. 2. 3. 4. 5. 6. 7. 8. Motion to dismiss; Motion for extension of time to file return; Motion for postponement; Motion for a bill of particulars; Counterclaim or crossclaim; Third-party complaint; Reply; and Motion to declare respondent in default. CA, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred

Habeas Corpus 1. 2.

Amparo

Habeas Data Prohibited pleadings

None

Motion to dismiss; Motion for extension of time to file opposition, affidavit, position paper and other pleadings; 3. Dilatory motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross - claim; 6. Third - party complaint; 7. Reply; 8. Motion to declare respondent in default; 9. Intervention; 10. Memorandum; 11. Motion for reconsideration of interlocutory orders or interim relief orders; and 12. Petition for certiorari, mandamus or prohibition against any interlocutory order.

Note: In writ of amparo, one rare instance where the SB, notwithstanding its status as a special court, is vested with jurisdiction co-equal with SC, CA and RTC. Take note that CTA, albeit acting as a special court being in the same rank of CA and SB, is not vested with jurisdiction to issue writ of amparo.

P. CHANGE OF NAME 1. DIFFERENCES UNDER RULE 103, R.A. 9048 AND RULE 108 Discuss the differences among Rule 103 (Change of Name), R.A. 9048 (Administrative Correction of Clerical or Typographical Error/Change of first name or nickname) and Rule 108 (Cancellation or Correction of Clerical or Typographical Error).

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

SPECIAL PROCEDINGS
A:
Rule 103 Change of first name or surname. R.A. 9048 Scope Change of first name or nickname/ correction of clerical errors of entries in the Civil Registry. Nature Judicial; hearing is necessary Summary if it involves clerical errors Adversarial if it involves substantial errors. Rule 108 Correction of or substantial errors of entries in the Civil Registry/ cancellation of entries.

Judicial; hearing is necessary.

Administrative; hearing is not necessary.

Verified petition. RTC of the province where the petitioner resides at least 3 months. CA under Rule 41

Filed by the person desiring to change his name.

Initiated by Sworn affidavit. Verified petition. Where to file 1. Local Civil Registry office where the record RTC where the corresponding civil is kept; registry is located. 2. Consul general. Where to appeal , in case of adverse decision Civil Registrar General under Sec. 7 or CA CA under Rule 41 under Rule 43 Who may file Petition is filed by the person of legal age who must have a direct and personal interest in the correction: 1. Owner of the record; Any person interested in the act, 2. Owners spouse, children, parents, event, decree or order concerning brothers, sisters, grandparents, guardian; the civil status of persons. or 3. Anyone authorized by law or owner of the record. Who must be notified
Interested parties/Solicitor General need not be notified. Publication Order for hearing in case of change of first name/nickname shall be published once a week for 2 consecutive weeks. Grounds Civil registrar as respondent; Solicitor General/ Interested parties. Order for hearing shall be published once a week for 3 consecutive weeks.

Solicitor General/ Interested parties. Order for hearing shall be published once a week for 3 consecutive weeks. 1. Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage; 3. Consequence of a change of status; 4. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; 5. The change will avoid confusion; or 6. When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name should

1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce. 2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that by that first name or nickname in the community: or 3. The change will avoid confusion.

N/A

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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prejudice public interest. (Republic v. CA, G.R. No. 88202, Dec. 14, 1998). Entries subject to correction 1. Correction of clerical or typographical errors in the civil registry 2. change of first name or nickname in the civil registry

1. Correction of clerical or typographical errors in any entry in civil registry documents, except corrections involving the change in sex, age, nationality and status of a person; and 2. Change of a person's first name or nickname in his or her civil registry.

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Births; Marriages; Deaths; Legal separations; Judgments of annulments of marriage; Judgments declaring marriages void from the beginning; Legitimations; Adoptions; Acknowledgments of natural children; Naturalization; Election, loss or recovery of citizenship; Civil interdiction; Judicial determination of filiation; and Change of name. (Sec. 2)

NOTE: Clerical/typographical error refer to an obvious mistake committed in clerical work, either in writing, copying, transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or place of birth and the like, and can be corrected or changed only by reference to other existing record or records. [Sec. 2(3) of RA 9048]

2. GROUNDS FOR CHANGE OF NAME Q: What are the grounds for change of name under Rule 103? A:

nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary. (Republic v. Bautista, 155 SCRA 1, Oct. 26, 1987).

Q. ABSENTEES 1. PURPOSE OF THE RULE

1. 2. 3. 4.

5. 6.

Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage; Consequence of a change of status; A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; The change will avoid confusion; or When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name should prejudice public interest. (Republic v. CA, G.R. No. 88202, Dec. 14, 1998).

Q: What is the purpose of this Rule? A: It is to appoint an administrator over the properties of the absentee. This is proper only where the absentee has properties to be administered. When a person disappears from his domicile his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the RTC of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary.
Note: If the absentee left no properties, such petition is not necessary. (Reyes v. Alejandro, G.R. No. L-46187, Jan. 16, 1986)

Note: Under Rule 108, change of name may either be summary or adversary in nature. If the correction sought to be made in the civil registrar is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or

210

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

SPECIAL PROCEEDINGS
2. WHO MAY FILE A PETITION; WHEN TO FILE Q: Who absence trustee? A: 1. 2. 3. 4. may file a petition for declaration of and appointment of administrator or
Note: Rule 108, when all the procedural requirements thereunder are followed, is the appropriate adversary proceeding to effect substantial correction and changes in the entries of civil register (Lee v. CA, G.R. No. L-118387, Oct. 11, 2001).

Spouse present; Heirs instituted in the will; Relatives who will succeed by intestacy; Those who have over the property of the absentee some right subordinated to the condition of his death. (Sec. 2, Rule 107)

Q: What are the requisites of adversarial proceedings? A: 1. Proper petition is filed where the Civil Registrar and all parties interested are impleaded; The order of hearing must be published once a week for three consecutive weeks; Notice must be given to the Civil Registrar and all parties affected thereby; The civil registrar and any person interested, may within 15 days from notice or from the last date of publication, files his opposition thereto; and Full blown trial. (Republic v. Valencia, supra.)

Q: When should a petition for declaration of absence and appointment of administrator or trustee be filed? A: 1. After 2 years: a. From his disappearance and without any news about the absentee; or b. of the last news about the absentee. After 5 years If he left an administrator of his property. (Sec. 2, Rule 107)

2. 3. 4.

2.

5.

R. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Q: Who may file a petition for cancellation or correction of entries? A: Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the RTC of the province where the corresponding civil registry is located (Sec. 1). Q: What is the nature of proceedings in Rule 108? A: It is summary if the entries in the civil register sought to be corrected are clerical or innocuous in nature. However, where such entries sought to be corrected or changed are substantial, the proceedings are adversarial in nature. (Republic v. Valencia, G.R. No. L-32181, Mar. 5, 1986) Q: What is meant by appropriate adversarial proceeding? A: One which has opposing parties; contested as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. (Republic v. Valencia, Ibid.)

1. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO RA 9048 Q: What are the entries subject to cancellation or correction under Rule 108? A: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Births; Marriages; Deaths; Legal separations; Judgments of annulments of marriage; Judgments declaring marriages void from the beginning; Legitimations; Adoptions; Acknowledgments of natural children; Naturalization; Election, loss or recovery of citizenship; Civil interdiction; Judicial determination of filiation; and Change of name. (Sec. 2)

Q: May the trial court issued an order declaring the nullity of marriage under Rule 108 and change the status from married to single? A: No, it is proper only in ordinary adversarial proceedings. (Lim v. Republic, G.R. No. 8932, May 31, 1957)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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Q: Within what period may a petition for correction or cancellation of entries be filed? A: The law did not fix a period within which the petition for correction under Rule 108 in relation to Art. 412 of Civil Code may be filed. Accordingly, such petition may be filed within 5 years from time the petitioner discovered the error or mistake in the civil registry, and not from the date the birth certificate was registered in the civil registry. (Lee v. CA, supra.) Q: Celine files a petition for cancellation of the birth certificate of her daughter Jeanie on the ground of falsified material entries therein made by Celines husband as the informant. The RTC sets the case for hearing and directs the publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing. The RTC granted the petition. Jeanie filed a petition for annulment of judgment before the CA, saying that she was not notified of the petition and hence, the decision was issued in violation of due process. Celine opposed saying that the publication of the court order was sufficient compliance with due process. Rule. A: The petition for annulment of judgment before the CA should be granted. Jurisdiction of the court over a petition for cancellation of a birth certificate requires reasonable notice to all interested parties and also publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. In this case, publication of the order is insufficient because Jeanie, a directly concerned party, was not given reasonable notice, hence, denied due process. The lower court, therefore, did not acquire jurisdiction. (Ceruila v. Delantar, G.R. No. 140305, Dec. 9, 2005). Alternative Answer: It should not be granted. The publication of an order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. A petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole as a party in the case and vests the court with jurisdiction to hear and decide it (Republic v. Kho, G.R. No. 170340, June 29, 2007; Alba v. CA, G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No. 120587, Jan. 20, 2004). (2007 Bar Question) Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another woman living in China. Her birth certificate indicates that Helen is the legitimate child of Tony and Eliza and that she is a Chinese citizen. Helen wants her birth certificate corrected by changing her filiation from "legitimate" to "illegitimate" and her citizenship from Chinese" to "Filipino" because her parents were not married. What petition should Helen file and what procedural requirements must be observed? Explain. A: A petition has to be filed in a proceeding under Rule 108 of the Rules of Court. A petition to change the record of birth by changing the filiation from legitimate to illegitimate and petitioners citizenship from Chinese to Filipino does not involve a simple summary correction which could otherwise be done under the authority of R.A. 9048. Procedural requirements include: (a) filing a verified petition; (b) naming as parties all persons who have or claim any interest which would be affected; (c) issuance of an order fixing the time and place of hearing; (d) giving reasonable notice to the parties named in the petition; and (e) publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. (2005 Bar Question) S. APPEALS IN SPECIAL PROCEEDINGS 1. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN Q: What are the orders or judgments from which appeal may be taken? A: An interested person may appeal when such order or judgment: 1. 2. Allows or disallows a will; Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; Settles the account of an executor, administrator, trustee or guardian; Constitutes, in the proceedings relating to the settlement of the estate of a deceased person, or the administration of

3.

4. 5.

212

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

SPECIAL PROCEEDINGS
a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, except orders granting or denying a motion for new trial or for reconsideration (Sec. 1, Rule 109). A: 1. Rule 40 (Appeal from MTC to RTC) By filing a notice of appeal, record on appeal and payment of appeal fees on questions of law or fact or both; Rule 41 (Appeal from the RTC to CA in exercise of its original jurisdiction) By ordinary appeal by filing a notice of appeal, record on appeal and payment of appeal fees on questions of law or fact or both; Rule 42 (Petition for review from the RTC to the CA in exercise of its appellate jurisdiction) By filing a notice of appeal, record on appeal and payment of appeal fees on questions of law or fact or both; Rule 45 (Appeal by certiorari to the SC) By filing of verified petition for review on certiorari and payment of fees which shall raise questions of law only XPN: Any party may raise questions of fact in their appeal in cases of writ of amparo, habeas data and kalikasan. Rule 65 (Petition for certiorari) By filing of verified petition for certiorari on the ground that the court acted without or in excess of jurisdiction or with grave abuse of discretion. 4. RULE ON ADVANCE DISTRIBUTION Q: When can an advance distribution be made despite a pending controversy in the settlement of an estate? A: Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules. (Sec. 2)

6.

2.

Note: A stranger having neither material nor direct interest in a testate or intestate estate has no right to appeal from any order issued therein. (Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928)

3.

2. WHEN TO APPEAL Q: When should the appeal in special proceedings be filed? A:


Special Proceedings Habeas Corpus Writ of Amparo Writ of Habeas Data Writ of Kalikasan PERIOD FOR APPEAL 30 days (Record on Appeal required) 48 hours from service of judgment 5 working days from date of notice of judgment 5 working days from date of notice of judgment 15 days from notice of judgment or denial of motion for reconsideration

4.

5.

Q: What are the orders that are not appealable? A: 1. Order directing the administrator to take action to recover an amount due to the estate. Order made in administration proceedings relating to the inclusion or exclusion of items of property in the inventory of executor or administrator. Order appointing a special administrator. Order granting or denying a motion for new trial or for reconsideration. 3. MODES OF APPEAL Q: What are the modes of appeal, how perfected and their grounds?

2.

3. 4.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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CRIMINAL PROCEDURE A. GENERAL MATTERS 4. Q: What is criminal procedure? A: It is the method prescribed by law for the apprehension and prosecution of persons accused of any criminal offense, and for their punishment, in case of conviction (Herrera, Vol. IV, p. 1, 2007 ed.). Q: Distinguish procedure. A:
Criminal Law Substantive It declares what acts are punishable It defines crimes, treats of their nature and provides for their punishment Criminal Procedure Remedial It provides how the act is to be punished It provides for the method by which a person accused of a crime is arrested, tried or punished.

3.

criminal

law

from

criminal

1. DISTINGUISH JURISDICTION OVER SUBJECT MATTER FROM JURISDICTION OVER PERSON OF THE ACCUSED Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person of the accused. A:
Jurisdiction Over the Subject Matter Derived from the law. It can never be acquired solely by consent of the accused. Objection that the court has no jurisdiction over the subject matter may be made at any stage of the proceeding, and the right to make such objection is never waived. Jurisdiction Over the Person of the Accused May be acquired by consent of the accused (by voluntary appearance) or by waiver of objections. If he fails to make his objection on time, he will be deemed to have waived it.

Determined by the nature of the offense and/ or penalty attached thereto and not what may be meted out after trial; Determined by the law in force at the time of the institution of the criminal action and not at the time of its commission. ONCE VESTED IT CANNOT BE WITHDRAWN BY: a. Subsequent valid amendment of the information (People v. Chipeco GR No. 1968, March 31, 1964) or; b. Subsequent statutory amendment of the rules of jurisdiction UNLESS the amendatory law expressly provides otherwise or is construed that it is intended to operate to actions pending before its amendment, in which case the court where the action is pending is ousted of jurisdiction and the pending action will have to be transferred to the court having jurisdiction by virtue of the amendatory law (Binay v. Sandiganbayan GR No. 120011, October 1, 1999)

2. REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION Q: What is criminal jurisdiction? A: It is the authority to hear and try a particular offense and impose the punishment for it (People v. Mariano, GR. No. L-40527, June 30, 1976).
Note: Jurisdiction is determined by the law in force at the time of the commencement of the action

Q: What are the requisites for the valid exercise of criminal jurisdiction? A: 1. Jurisdiction over the subject matter the power to hear and determine cases of general class to which the proceeding in question belong. The offense, by virtue of the imposable penalty or its nature, is one which the court is by law authorized to take cognizance of. Jurisdiction over the territory The offense must have been committed or any of its essential ingredients took place within the territorial jurisdiction of the court. It cannot be waived and where the place of the commission was not specifically charged, the place may be shown by evidence.

Q: What determines jurisdiction of the court in criminal cases? A: 1. 2. The geographical limits of its territory; Determined by the allegations in the complaint or information not by the results of proof or by the trials courts appreciation of the evidence presented;

2.

214

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

CRIMINAL PROCEDURE
3. Jurisdiction over the person of the accused The person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. A: It is lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable of an offense forming part of the complex crime. It must be prosecuted integrally and must not be divided into component offenses which may be made subject of multiple information brought in different courts (Cuyos v. Garcia, G.R. No. L-46934, Apr. 15, 1988). Q: Which court has jurisdiction over continuing crimes? A: Continuing offenses are consummated in one place, yet by the nature of the offense, the violation of the law is deemed continuing (e.g.estafa and libel). As such, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. But the court which first acquires jurisdiction excludes the other courts. Q: Which court has jurisdiction over crimes punishable by destierro? A: Where the imposable penalty is destierro, the case falls within the exc