Beruflich Dokumente
Kultur Dokumente
5.
6.
Rescission
Foreclosure always with the RTC
o Extrajudicial foreclosure is not judicial. It is initiated by filing a complaint
before the Clerk of Court. After payment of appropriate fees, the action
is set for public sale.
The rules is that jurisdiction over the subject matter is conferred upon the courts exclusively
by law, and as the lack of it affects the very authority of the court to take cognizance of the
case, the objection may be raised at any stage of the proceedings. However, a party may be
barred by laches from invoking this plea for the first time on appeal for the purpose of annulling
everything done in the case with the active participation of said party invoking the plea. A party
can not invoke the courts jurisdiction and then deny it to escape a penalty.
2
1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the
payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subjectmatter or nature of the action. Where the filing of the initiatory pleading is not accompanied by
payment of the docket fee, the court may allow payment of the fee within a reasonable time
but in no case beyond the applicable prescriptive or reglementary period;
2. The same rule applies to permissive counterclaims, third-party claims and similar pleadings,
which shall not be considered filed until and unless the filing fee prescribed therefor is paid.
The court may allow payment of said fee within a reasonable time but also in no case beyond
its applicable prescriptive or reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate
pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a
claim not specified in the pleading, or if specified the same has been left for determination by
the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be
the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and
assess and collect the additional fee.
3
Effective September 21, 2004 under Sec. 7, Rule 141, as amended by A.M. No. 04-2-04-SC,
docket fees are now required to be paid in compulsory counterclaim or cross-claims.
Appeals
Decision of the HLURB appealable to the Office of the President
7
Decision of the NLRC appealable to the CA via Rule 65 (St. Martin Funeral case)
Decision of the Ombudsman (Nemencio case)
o For admin cases : To the CA via Rule 43
o For GADALEJ: To the SC via Rule 65
Enforcement of action v. Ordinary action
Foreign judgment in rem v. in personam
Procedurally, enforcement has no rehash of facts
The failure to state the rate of interest demanded was not fatal not only because it is the
Courts which ultimately fix the same, but also because Rule 141, Section 5(a) speaks of the
sum claimed, exclusive of interest. This clearly implies that the specification of the interest
rate is not that indispensable.
5
If the amount of docket fees paid is insufficient considering the amount of the claim, the clerk
of court of the lower court involved or his duly authorized deputy has the responsibility of
making a deficiency assessment. The party filing the case will be required to pay the deficiency,
but jurisdiction is not automatically lost.
6
All complaints, petitions, answers and other similar pleadings should specify the amount of
damages being prayed for not only in the body of the pleading but also in the prayer, and said
damages shall be considered in the assessment of the filing fees in any case. Any pleading that
fails to comply with this requirement shall not be accepted nor admitted, or shall otherwise be
expunged from the record. The Court acquires jurisdiction over any case only upon the
payment of the prescribed docket fee. An amendment of the complaint or similar pleading will
not thereby vest jurisdiction in the Court, much less the payment of the docket fee based on
the amounts sought in the amended pleading.
7
All references in the amended Section 9 of BP 129 to supposed appeals from the NLRC to the
Supreme Court are interpreted and declared to mean and refer to petitions for certiorari under
Rule 65. Consequently, all such petitions should henceforth be initially filed in the CA.
GRACE XAVIERE E. ESCOSIA
1 COA even if there are incidents (Ex. Attorneys fees, exemplary damages,
etc.)
o How many COA? Breach of contract and moral damages, exemplary
damages, attorneys fees, costs of suit. Only 1 COA.
o How many COA? Promissory note (PN) 1, for 25K, MTC Jurisdiction. PN2, for
500K, RTC jurisdiction. PN3, for 350K, MTC jurisdiction. There are 3 COAs.
o Joinder of action in the alternative you dont know who is the proximate
cause. (Ex. Transport of goods and contract/quasi-delict)
o Is it possible to have alternative cause of action with only one defendant?
8
Yes. (international express travel v. CA)
o Example: Sir sued Ventura (owes 1K to Sir), Gregorio (borrowed car), Ortiz
(arrangement of 1M), Lantion (contractor). All breached the contract. Cannot
be sued in one action.
o There is no requirement that COA arise from the same transaction and series
of transaction.
How do you initiate a civil action:
1. File complaint
2. Pay docket fees
Joinder of parties
Requisites:
1. Same action/series of transaction
2. Multiple parties
3. Same facts
Joinder may vary on single/multiple parties
o Single : Rule 3, Sec. 6 does not apply
o Multiple : Rule 3, Sec. 6 applies
Joinder of actions
Cannot join SCA with OCA
Requisites:
1. Single/multiple
2. SCA
3. Venue/jurisdiction
8
Any person acting or purporting to act on behalf of a corporation which has no valid existence
assumes such privileges and obligations and becomes personally liable for contracts entered
into or for other acts performed as such agent. As President of the corporation, he is presumed
to have known about the corporate existence or non-existence of the corporation. He should
be held liable for the unpaid obligations of the unincorporated corporation.
GRACE XAVIERE E. ESCOSIA
Counterclaims
RTC skys the limit
MTC must be within the jurisdiction of the court; otherwise, waive the balance
Misjoinder
Not a ground for dismissal
Proceed with separately court not bound to proceed with it
Rule 3 (Parties)
Parties:
1. Natural person
o Married sued jointly. (Remember EXCEPTIONS)
o Minor or incapacitated must be assisted (Sec. 5)
Guardian ad litem appointed by the court for the purpose of
receiving summons
o Every person who has the capacity can be a party. Capacity means of age
of majority.
o Supervening incapacity (Sec. 18) case should not be dismissed; proceed
against him but assisted by a legal guardian
9
There is a unity in the problem presented and a common question of law and fact involved
between the prayer of annulment of the judgment reconstituting TCT and that questioning the
denial of the motion to dismiss the complaint for the annulment of titles. The joinder of the two
causes of action is mandated by the need to avoid multiplicity of suits and to promote an
efficient administration of justice. There should nevertheless be some unity in the problem
presented and a common question of law and fact involved, subject always to the restriction
thereon regarding jurisdiction, venue and joinder of parties. Unlimited joinder is not
authorized.
2.
Juridical person
o Capacity given by law duly incorporated in the SEC
Summons:
1. Natural person
o Served in person, wherever found
o (1) Personal service; (2) Substituted service
o Manotoc v. CA
o Can be imprisoned if ignore summons
2. Juridical person
o Corporation registered with the SEC (for domestic)
o Domestic Rule 14, Sec. 11 (REMEMBER)
o Foreign Rule 14 (Authorized agent or officer in the Phils.)
3. Unincorporated association (non-juridical entity) (Rule 3, Sec. 15)
o No matter how famous the name, cannot institute action using common
name; must sue individually
o But can be a defendant (if they misled the public)
o Serve on one or person-in-charge (Rule 14, Sec. 8)
4. Entities authorized by law
o Summons depend on type of entity
o Ex. Estate of deceased, political parties, archdiocese, registered labor
union
Real party in interest v. Locus Standi
Real party in interest for private suits; applies to both plaintiff and defendant
Locus Standi (Legal standing) directed to an act of the government where
person suffered an injury; not used in private suits, only in public suits
Indispensable party v. Necessary party
Indispensable for final determination of the case
Necessary (1) not an indispensable party; (2) ought to be joined for complete
determination of the case
In contracts, the real parties in interest are the parties to the agreement.
Although not signatory to the agreement, but has an interest on the subject
matter of the contract, can still be an indispensable party.
GR: Plaintiff/defendant should be an indispensable party. EX: assignee, or if
theres a stipulation pour autrui
Ex. In action to recovery of title, owner (necessary) and possessor (indispensable)
Ex. In action for recovery of title, owner (indispensable) and possessor
(necessary)
GRACE XAVIERE E. ESCOSIA
2.
3.
The complaint for recovery of possession of real property is an action which survives the
death of a party. Such being the case, the rule on substitution of a deceased party is clearly
applicable. Non-compliance with the rule on substitution of a deceased party renders the
proceedings and judgment of the trial court infirm because the court acquired no jurisdiction
over the persons of the legal representatives or of the heirs on whom the trial and the
judgment would be binding. The proceedings and judgment of the trial court are void only as to
the heirs who did not participate in the trial. Formal substitution of heirs is not necessary when
the heirs themselves voluntarily appeared, shared in the case and presented evidence in
defense of deceased defendant.
11
Recapitulating the rules on indigent litigants, therefore, if the applicant for exemption meets
the salary and property requirements under Section 19 of 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 Section 21 of Rule 3 and use its sound discretion in
determining the merits of the prayer for exemption.
GRACE XAVIERE E. ESCOSIA
If you fall within the definition of Rule 141 : Indigent (no need to convince
court except through a document)
Wage does not exceed double the monthly minimum wage
Real property with fair market value does not exceed 300K
o If in excess of Rule 141 : Rule 3 applies (indigency test); Court will ascertain if
income is enough after notice and hearing (judicial discretion)
No need to pay filing fees lien on a judgment
Free from payment of docket fees and transfer of stenographic notes
If discover not an indigent:
1. Require party to pay
2. If refuse, order execution (Rule 39)
3. If failed to pay and ignore execution, dismiss the case (Rule 17, Sec. 3)
Pauper economically deficient (no income/way below decent living)
You can be an employed indigent with property.
Notice of lis pendens lie only to right/interest over a real property
Ex. Development agreement into a memorial park. F resides in QC. Memorial park
(juridical entity) resides in Pasig. Contract was completed in Rizal. The complaint
is to rescind contract. Since its a personal action, venue is either QC or Pasig.
Court is the RTC (incapable of pecuniary estimation)
Where do you file for extrajudicial foreclosure? Not a real action; not a judicial
action; you file with the clerk of court; falls under Act 3135
Where do you file for judicial foreclosure? Action in rem; Rule 68; venue where
property is located
Ex. Nullity of marriage. Where? (1) Residence, (2) Conjugal home
Venue is waiveable.
Remember Rule 9, Sec. 1 (Waiver & Objections). Improper venue can only be
invoked by the defendant.
Ex. If defendant failed to file a motion to dismiss or answer for improper venue,
12
the court cannot motu proprio dismiss the case. (Dacoycoy v. IAC)
Rule 5 (Preliminary Conference & Summary Procedure)
Rule 4 (Venue)
Kind of action:
1. Personal
o Involves obligations (privity of contract)
o Residence at the option of the principal plaintiff
o Ileen Marcos Araneta case (2009) if there a number of
plaintiffs/defendants, look at the principal residence at the option of the
plaintiff
2. Real
o Involves real property
o Affects title or possession of property
GR: Apply Rule 4
EX:
1. Agreement words of exclusivity; otherwise, considered only in addition to
prescribed venue under the law
o Can stipulation apply to a real action? YES.
2. Specific rule/law
o Examples: Quo warranto, perpetuation of testimony (Rule 24), specpro,
writ of habeas corpus for custody of minor, ejectment
The fact that you can institute an action does not necessarily confer jurisdiction
to court.
Can MTC handle cases falling under the ordinary procedure? YES.
Summary Procedure
Default is not an option
If no answer, render judgment.
Memorize prohibited pleadings.
Small claims
Who can assist? Generally, BAR flunkers
Pinga v. Heirs of German
Can they present evidence during the hearing? No, court only reviews the
affidavits.
There must be a dispute resolution.
Prohibited pleadings different from summary procedure. In motion to dismiss,
the exception is only lack of jurisdiction.
Decisions are final and unappealable. Remedy is Rule 65.
12
Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot
be truly said to have been improperly laid, as for all practical intents and purposes, the venue,
though technically wrong, may be acceptable to the parties for whose convenience the rules on
venue had been devised. The trial court cannot pre-empt the defendant's prerogative to object
to the improper laying of the venue by motu proprio dismissing the case.
GRACE XAVIERE E. ESCOSIA
3.
4.
Answer in 10 days
Found in the answer; no need for leave of court
If theres more than one party in one side and theres already
jurisdiction over the person.
Ex. Sir sued Gregorio. Gregorio sued Ele.
Third-party complaint
o Need leave of court
o Purpose: For contribution, indemnity, subrogation (MEMORIZE)
o Answer in 15 days
o Ex. Sir sued Gregorio. Gregorio impleaded Ele who is not a party to the
case.
Reply
o Not mandatory; optional
o By original complainant/plaintiff
o File within 10 days
o Dispute or controvert new matters
o Effect of failure to file : issues are deemed controverted (issues are
joined)
Controverted not judicially admitted; deemed disputed
o New matter something complainant was not aware at the time of
filing; must arise from the complaint (Ex. Prescription, statute of frauds)
3.
After 1997 Rules, SC more on dismissing cases that dont comply with
the Rules.
o Minor legal guardian sign for him
o Husband and wife both sign unless common interest
o Co-owner not all, one person may sign
o Multiple parties all must sign except common interest
Certification Against Non-Forum Shopping (CNFS)
o Signed by (1) party, (2) lawyer, (3) representative, (4) authorized officer
by the corporation through a board resolution, or (5) in-house counsel
In-house counsel duly authorized in a board resolution + personal
knowledge; employed by the company and is included in the payroll
Retained counsel not employed but contract of service for a
month-to-month or project basis
o Memorize Rule 7, Sec. 5
o Allegations: (1) issue, (2) status of the case, (3) inform court of pending
action within 5 days
o If non-juridical entity, all must sign.
o In practice, judges believe that all initiatory pleadings should be verified
o Effect of absence of CNFS: (1) dismissed without prejudice, (2) cannot
cure by amendment but can be refilled
o Effect of noncompliance/false: (1) indirect contempt, (2)
administrative/criminal case against you
o Effect of willful/deliberate: (1) direct contempt, (2) administrative
sanctions, (3) summary dismissal
PRAYER
WHEREFORE, premises considered, it is respectfully prayed (summarize
what you want)
Date of pleading, Place.
Signature of Counsel
PTR
IBP
Roll of Attorneys Number
MCLE
Docket No.
15
13
15
If plaintiff.
If defendant. Only defendant is served with summons.
17
All complaints, petitions, answers and other similar pleadings should specify the amount of
damages being prayed for not only in the body of the pleading but also in the prayer, and said
damages shall be considered in the assessment of the filing fees in any case. Any pleading that
fails to comply with this requirement shall not bib accepted nor admitted, or shall otherwise be
expunged from the record. The Court acquires jurisdiction over any case only upon the
payment of the prescribed docket fee. An amendment of the complaint or similar pleading will
not thereby vest jurisdiction in the Court, much less the payment of the docket fee based on
the amounts sought in the amended pleading.
16
COMPLAINT
13
1.
14
Number depends on the date of filing and payment of docket fees; it does not indicate the
nature of the action.
14
Title of the pleading.
If theres no date, it does not affect the validity of the pleading since it is
corrected by the stamp.
o
o
o
Rule 8
Sec. 1 : Brief, concise, ultimate facts, devoid of evidentiary matter
Under Rule 128, Fact + Evidence = Truth
If the basis of the complaint is an actionable document, must attach the
document. How?
1. Annex
2. Reproduce text in the pleading
Condition precedent must be generally averred. (Ex. Conciliation process, pursuits
among members of the family, exhaustion of administrative remedies)
Capacity:
1. Natural legal age
2. Juridical license to do business
Mistake/Fraud allege with particularity (time, place, specific acts)
Malice allege generally (you cannot state particulars)
All issues passed upon by the court are disputable; no need to allege jurisdiction
of court if theres already judgment
Effect of failure to deny under oath : Deemed admitted
EXCEPT: (1) not a party to the instrument, (2) compliance with order is refused
Usury must be specifically denied under oath.
Strike out a pleading:
1. Redundant
2. Scandalous not a fact in issue
3. Immaterial
Example of strike out: the court ordered to file a deposition versus the court
wanted counsel to remind
Rule 9 (Default)
1.
2.
3.
(1) General order of default in rem like land registration cases; forever
barred; cannot oppose
(2) Failure to attend pre-trial (as in default) absence of defendant
Proof of failure to answer show return
Order of default v. Judgment of default
Order no answer within the reglementary period
Judgment order declaring default and later judgment by the court
Remedies:
For Order of Default
(1) Motion to set aside an order of default
Under oath
Ground is FAME (must be extrinsic fraud)
Extrinsic fraud outside of the pleadings which prevented party
from participating in the proceedings
Intrinsic fraud cited in the pleadings
Meritorious defense (not necessarily answer)
Saguid v. CA failure to appear in pre-trial, remedy is to file
18
MR/set aside on the ground of FAME
Example of mistake : wrong date, cut and paste, secretary
placed pleading in another envelope
GR: Negligence of counsel is negligence of client. EX: If gross.
For Judgment of Default
(1) Appeal or MNT
Not MR because it presupposes presentation of evidence; MNT
presupposes no opportunity to present evidence
File within the reglementary period (15 days)
(2) Petition for relief
Theres already entry of judgment.
File within 6 months from entry and 60 days from knowledge of
judgment
(3) Petition for certiorari for GADLAEJ
(4) Annulment
All other remedies cannot be availed of
Judgment is final and executory
18
Even before the 1997 Rules of Civil Procedure took effect on July 1, 1997, the filing of a pretrial brief was required under Circular No. 1-89 which became effective on February 1, 1989.
Pursuant to the said circular, "[f]ailure to file pre-trial briefs may be given the same effect as the
failure to appear at the pre-trial," that is, the party may be declared non-suited or considered
as in default.
GRACE XAVIERE E. ESCOSIA
10
Kinds of amendment:
1. Parties agree and there is no objection even after judgment
2. If there is an objection, its left to the sound discretion of the court.
Can you amend even if theres no application? Yes. (1) Formal amendment, (2)
Rule 12, Bill of particulars, (3) Motion to dismiss
Court cannot amend to conform evidence without an application
If jurisdiction is already acquired over the defendant, amend with new cause of
action, no need to issue new summons.
Supplement
Not a responsive pleading
Supplemental memo or comment? NO
It involves transactions, occurrences, events occurring after the filing of the
pleading.
GR: All pleadings, EX: SC (interim rules)
Civil
1.
2.
3.
4.
Criminal
1. Reference: Plea (Rule 110, Sec 14)
2. Before plea only as to form/substance
3. After plea with leave of court, any form as long as not prejudicial to the
rights of the accused
o TEST: original defense of accused will not change and is not prejudicial
(ex. Relationship, penalty)
Supplement v. Amendment
Supplement facts not yet in existence at the time of filing
Amendment there was only an omission; facts sought to be introduced already
in existence
Rule 12 (Bill of Particulars)
11
Rule 13 (Service)
MODES OF SERVICE
Personal service
Service to suitable person
residence/office
Completeness and actual
Registered mail
Actual or first notice after 5 days
Ordinary mail
Expiration of 10 days
MODES OF FILING
Personal service
Registered mail
Registry receipt and return card
in
PROOF OF SERVICE
Written admission
Official return of service refers to
service of the court
Affidavit
PROOF OF FILING
Record
Received copy
Registry receipt
Affidavit
19
In view of the Republic's failure to obey this Court's directive and the Sandiganbayan's order
to file the proper bill of particulars which would completely amplify the charges against Virata,
this Court deems it just and proper to order the dismissal of the expanded Second Amended
Complaint, in so far as the charges against Virata are concerned. This action is justified by
Section 3, Rule 17 of the Rules of Court.
Return card
Rule 14 (Summons)
20
The pendency of a simple collection suit arising from the alleged nonpayment of construction
services, materials, unrealized income and damages does not justify the annotation of a notice
of lis pendens on the title to a property where construction has been done.
GRACE XAVIERE E. ESCOSIA
12
21
The lower court acquired jurisdiction over the nonresident husband by means of the said
service of summons. As the wife had authority to sue, and had actually sued in behalf of her
nonresident husband, so she was also empowered to represent him in suits filed against him,
particularly in a case which is a consequence of the action brought by her in his behalf.
22
A foreign corporation without a license is not ipso facto incapacitated from bringing an action
in Philippine courts. A license is necessary only if a foreign corporation is transacting or
doing business in the country. To constitute doing business, the activity to be undertaken in
the Philippines is one that is for profit-making.
GRACE XAVIERE E. ESCOSIA
13
Notice to enable the other party to be heard and to present evidence is not a mere
technicality or a trivial matter in any administrative or judicial proceedings. The service of
summons is a vital and indispensable ingredient of due process.
24
Delivery to the Department of Foreign Affairs was sufficient compliance with the rule. After
all, this is exactly what the trial court required and considered as sufficient to effect service of
summons under the third mode of extraterritorial service pursuant to Section 15 of Rule 14.
25
In practical terms, we perceive that in suits in personam the more circuitous procedure
delineated in Sections 17 and 18 is resorted to by a plaintiff if defendant's dwelling house or
residence or place of business in this country is not known; or, if known, service upon him
cannot be had thereat upon the terms of Section 8. Here, since personal service is impossible,
resort to substituted service becomes a necessity. A comparison between the service in Section
8 and that in Sections 17 and 18 is beside the point. They both provide for substituted service.
Anyway, as Goodrich observed: "[I]f a substitute is to be made where an actual personal service
is impossible, 'the best is none too good'.
1.
2.
3.
4.
5.
6.
Definition
o Not a pleading but seeks relief
o Ex. Motion for early resolution, motion for extension
o All motions abide by Rule 15
o Motion to dismiss does not partake the nature of an answer.
Every motion should have a notice of hearing.
o Directed to all parties concerned
o In practice, include the clerk of court because its the clerk of court who
schedules the hearing (in custody of the calendar)
o Absence : Treated as a mere scrap of paper
3-day notice rule
o Filed and served to other part at least 3 days before the hearing
10-day rule
o Hearing must be scheduled not later than 10 days after filing of the motion
o Must still observe the 3-day rule
Omnibus motion rule
o Include all grounds available EXCEPT Rule 9, Sec. 1
Motion day
o Always on a Friday (mandatory!)
o Only the judge can apply it liberally
Rule 16 (Motion to Dismiss)
1.
Grounds (REMEMBER)
o No jurisdiction over the subject matter conferred by law (RA 7691)
o No jurisdiction over the defendant proper service of summons or voluntary
appearance
o Improper venue Rule 4 or special rule/stipulation
o No legal capacity
Corp : registered with the SEC
Indiv : age of majority
Attorney : authority specified in the SPA
o Failure to state a cause of action specific allegations of breach; doesnt go
to the truthfulness or falsity of allegation
GRACE XAVIERE E. ESCOSIA
14
2.
3.
4.
Litis pendentia 2 cases both pending involving the same facts, issue, relief
Res judicata and prescription statute sets a limit to institute an action
Paid, waived, abandoned or extinguished
Condition precedent waiveable; ex. Barangay conciliation, earnest efforts,
26
exhaustion of local remedies (Banares v. Balising)
o Statute of frauds
Dismissal but cant refile
o Prescription
o Res judicata
o Statute of frauds
o Paid, waived or abandoned
Period to file : before filing an answer
How to count same with BOP, interruption (Rule 22)
If grant petition for certiorari, can court dismiss the case outright?
28
Dismiss/Remand (Lu Ym v. Nabua)
29
Assumes that issues have already been joined (since an answer has already been
filed)
Procedure:
1. File Answer
2. Within 5 days, move ex-parte for pre-trial
o If fail to move, Clerk of Court will issue notice of pre-trial
26
The non-referral of a case for barangay conciliation when so required under the law is not
jurisdictional in nature and may therefore be deemed waived if not raised seasonably in a
motion to dismiss.
27
Although this Court did not issue any restraining order against the Intermediate Appellate
Court to prevent it from taking any action with regard to its resolutions respectively granting
respondents' motion to expunge from the records the petitioner's motion to discuss and
denying the latter's motion to reconsider such, order, upon learning of the petition, the
appellate court should have refrained from ruling thereon because its jurisdiction was
necessarily limited upon the filing of a petition for certiorari with this Court questioning the
propriety of the issuance of the above-mentioned resolutions. Due respect for the Supreme
Court and practical and ethical considerations should have prompted the appellate court to
wait for the final determination of the petition before taking cognizance of the case and trying
to render moot exactly what was before this court.
28
While it was error for the appellate court to rule that the trial court did not commit grave
abuse of discretion in denying petitioners motion to dismiss, it does not necessarily follow that
the motion to dismiss should have been granted. The instant petition raises significant factual
questions as regards petitioners claim that the Amended Complaint should have been
dismissed which are properly addressed to the trial court. Moreover, it cannot be gainsaid that
the trial court should be given the opportunity to correct itself by evaluating the evidence,
applying the law and making an appropriate ruling. A remand of the case to the trial court for
further proceedings is, therefore, in order.
29
The dismissal of a complaint due to fault of the plaintiff is without prejudice to the right of
the defendant to prosecute any pending counterclaims of whatever nature in the same or
separate action. We confirm that BA Finance and all previous rulings of the Court that are
inconsistent with this present holding are now abandoned.
GRACE XAVIERE E. ESCOSIA
15
JDR before a JDR judge who acts as mediator, conciliator and independent
evaluator; there must be a new raffle UNLESS parties consent in writing to
continue with the JDR judge
After issuance of summons, it is the duty of a judge to issue Order requiring
parties to avail of discovery.
Rule 19 (Intervention)
1.
2.
Concept
o Not delay proceedings of original parties
o Prosecuted on the same/separate action
When you can intervene (Sec. 2)
o Republic v. Gingoyon when can you intervene? Before rendition of
30
judgment in the trial court
o After judgment? GR: No. EX: If indispensable party.
31
Nordic Asia v. CA
There is no intervention in the appellate court. But subject to the sound
discretion of the court.
Rule 21 (Subpoena)
Kinds:
1.
30
We now turn to the three (3) motions for intervention all of which were filed after the
promulgation of the Courts Decision. All three (3) motions must be denied. Under Section 2,
Rule 19 of the 1997 Rules of Civil Procedure the motion to intervene may be filed at any time
before rendition of judgment by the court. Since this case originated from an original action
filed before this Court, the appropriate time to file the motions-in-intervention in this case if
ever was before and not after resolution of this case. To allow intervention at this juncture
would be highly irregular. It is extremely improbable that the movants were unaware of the
pendency of the present case before the Court, and indeed none of them allege such lack of
knowledge.
31
The requirements for intervention are: [a] legal interest in the matter in litigation; and [b]
consideration must be given as to whether the adjudication of the rights of the original parties
may be delayed or prejudiced, or whether the intervenor's rights may be protected in a
3
separate proceeding or not. Petitioners failed to meet both requirements. Legal interest, which
entitles a person to intervene, must be in the matter in litigation and of such direct and
immediate character that the intervenor will either gain or lose by direct legal operation and
effect of the judgment. Petitioners, being co-creditors, are not the parties liable for the claims
of the manning agent and crewmen. Also, petitioners' remedies as unpaid mortgagees remain
preserved as the collection case will not preclude the foreclosure of the vessel.
GRACE XAVIERE E. ESCOSIA
16
Scope : Any matter, not privileged, relevant, direct relation to the fact in issue
Not privileged not disqualified to be a witness
Rules to Consider:
1. When file
o With leave of court acquire jurisdiction but before answer is filed
o Without leave of court after answer is filed
o GR: Before answer, you file a notice. EX: deposition (file a motion)
2. Before whom taken
3.
While a court had the authority to entertain a discovery request, it is not required to provide
judicial assistance thereto. This reality was recognized by the trial court when it ordered
respondent to have the questioned depositions authenticated by the Philippine consulate.
Indeed, refusing the allowance of the depositions in issue would be going directly against the
purpose of taking the depositions in the first place, that is, the disclosure of facts which are
relevant to the proceedings in court. Moreover, the authentication made by the consul was a
ratification of the authority of the notary public who took the questioned depositions. The
deposition was, in effect, obtained through a commission, and no longer through letters
rogatory.
33
A deposition not signed does not preclude its use during the trial. A deponents signature to
the deposition is not in all events indispensable since the presence of signature goes primarily
to the form of deposition. The requirement that the deposition must be examined and signed
by the witness is only to ensure that the deponent is afforded the opportunity to correct any
errors contained therein and to ensure its accuracy. In any event, the admissibility of the
deposition does not preclude the determination of its probative value at the appropriate time.
The admissibility of evidence should not be equated with weight of evidence.
GRACE XAVIERE E. ESCOSIA
17
Rule 24
Perpetuation of testimony
If there is no pending case, you cannot take deposition. Must file a case in order
to file for taking of deposition.
Venue:
o Before Action : Where expected adverse party resides
o Pending Appeal : Where judgment is rendered
34
Deposition may be made after the trial court has acquired jurisdiction over any defendant or
over property that is the subject of the action; or, without such leave, after an answer has been
served. Deposition may also be taken during trial under Rule 23 Section 4. When a deposition
does not conform to the essential requirements of law and may reasonably cause material
injury to the adverse party, its taking should not be allowed.
35
It matters not that that opportunity for cross-examination was afforded during the taking of
the deposition; for normally, the opportunity for cross-examination must be accorded a party at
the time that the testimonial evidence is actually presented against him during the trial or
hearing. However, depositions may be used without the deponent being actually called to the
witness stand by the proponent, under certain conditions and for certain limited purposes.
Contents of a petition
Pending appeal v. Before action
o For pending appeal : Petition for certiorari is not an appeal and is allowed as
long as the principal action is alive.
Rule 25
Rule 23 v. Rule 25
o Rule 23: can take depo of anyone (party or witness); no fixed time; direct,
cross, redirect, recross; answer only in the presence of deposition officer
o Rule 25 : directed only to the parties; 15 days to answer
o Mode of application and Use are the same
Effect of failure to serve: Cannot be compelled to testify
o Can call adverse party as witness (Rule 132)
o Not considered as a hostile witness
Rule 26
Directed to the adverse party
Fail to respond : Implied admission
Documents must be attached
Admit only due execution and genuineness
Edades case
Who will suffer cost? Party who refused but advanced by party applying
Rule 27
Production of documents v. Subpoena
o Production may be a preparatory act for the presentation of secondary
evidence.
There must be notice to produce
Do not assume it is a mode of discovery
If directed to produce a specific evidence, be careful.
Compelled to be presented in court? NO. Only a mode of discovering evidence.
Fishing expedition is not a defense.
Rule 28
1. Subject Matter Very limited application
2. When apply? Only for special cases involving mental and physical condition
3. Consequences waiver of doctor-patient privilege
o Privilege applies only when (1) blacken reputation, (2) only civil case
o To avoid, do not ask for discovery.
o Can ask for a copy of previous/subsequent examinations
GRACE XAVIERE E. ESCOSIA
18
3. Agreement
Can an adoption case be delegated? NO.
Rule 29
Rule 31 (Consolidation)
Consequences of refusal to answer:
1. May be placed in contempt
2. Can be arrested
A commissioner can hear any matter, can issue subpoena if within order of
reference, can resolve objections.
Trial by commissioner resorted to in cases like expropriation (mandatory) and
partition (only when parties do not agree).
Report of commissioner is not a judgment; it only serves to aid the court.
Who shoulders payment? GR: losing party. EX: apportionment
Rule 33 (Demurrer to Evidence)
When
Leave
Remedy
CIVIL CASE
After prosecution has completed its
case (Formal offer of evidence)
No leave of court, but can file for
leave
If granted, appeal
If denied, continue case then
appeal from judgment OR file MR
CRIMINAL CASE
After prosecution rests its case
With leave of court (Can still
present evidence if demurrer is
denied)
Without leave of court (Waive right
to present evidence if demurrer is
denied)
Cannot
appeal/petition
for
certiorari until final judgment
36
When two or more cases involve the same parties and affect closely related subject matters,
they must be consolidated and jointly tried, in order to serve the best interests of the parties
and to settle expeditiously the issues involved. Consolidation, when appropriate, also
contributes to the declogging of court dockets.
GRACE XAVIERE E. ESCOSIA
19
37
If demurrer is granted and the accused is acquitted by the court, the accused has the right to
adduce evidence on the civil aspect of the case unless the court also declares that the act or
omission from which the civil liability may arise did not exist. This is because when the accused
files a demurrer to evidence, he has not yet adduced evidence both on the criminal and civil
aspects of the case. The only evidence on record is the evidence for the prosecution. What the
trial court should do is issue an order or partial judgment granting the demurrer to evidence
and acquitting the accused, and set the case for continuation of trial for the accused to adduce
evidence on the civil aspect of the case and for the private complainant to adduce evidence by
way of rebuttal. Thereafter, the court shall render judgment on the civil aspect of the case
38
Since Cabador filed his motion to dismiss before he could object to the prosecutions formal
offer, before the trial court could act on the offer, and before the prosecution could rest its
case, it could not be said that he had intended his motion to dismiss to serve as a demurrer to
evidence. Since Cabador filed a motion to dismiss on the ground of violation of his right to
speedy trial, not a demurrer to evidence, he cannot be declared to have waived his right to
present evidence in his defense.
39
If a demurrer to evidence is granted but on appeal the order of dismissal is reversed, the
movant shall be deemed to have waived the right to present evidence. The movant who
presents a demurrer to the plaintiffs evidence retains the right to present their own evidence,
if the trial court disagrees with them; if the trial court agrees with them, but on appeal, the
appellate court disagrees with both of them and reverses the dismissal order, the defendants
lose the right to present their own evidence. The appellate court shall, in addition, resolve the
case and render judgment on the merits, inasmuch as a demurrer aims to discourage prolonged
litigations.
40
When an accused files a demurrer to evidence without express leave of court, he is deemed
to have waived his right to present his own evidence.
41
Applying the requisites of a judgment on the pleadings vis--vis a summary judgment, the
judgment rendered by the RTC was not a judgment on the pleadings, but a summary judgment.
GRACE XAVIERE E. ESCOSIA
20
42
Rule 37 (MR/MNT)
Rule 36 (Judgment)
Although the Answer apparently raised issues, both the RTC and the Court of Appeals after
considering the parties pleadings, petitioners admissions and the documents attached to the
Complaint, found that the issues are not factual ones requiring trial, nor were they genuine
issues.
42
The existence or appearance of ostensible issues in the pleadings, on the one hand, and their
sham or fictitious character, on the other, are what distinguish a proper case for summary
judgment from one for a judgment on the pleadings. In a proper case for judgment on the
pleadings, there is no ostensible issue at all because of the failure of the defending partys
answer to raise an issue. On the other hand, in the case a of a summary judgment, issues
apparently exist i.e. facts are asserted in the complaint regarding which there is as yet no
admission, disavowal or qualification; or specific denials or affirmative defenses are in truth set
out in the answer but the issues thus arising from the pleadings are sham, fictitious or not
genuine, as shown by affidavits, depositions, or admissions
43
The filing of memoranda is not a part of the trial nor is the memorandum itself an essential,
much less indispensable pleading before a case may be submitted for decision. As it is merely
intended to aid the court in the rendition of the decision in accordance with law and evidence which even in its absence the court can do on the basis of the judges personal notes and the
records of the case - non-submission thereof has invariably been considered a waiver of the
privilege.
44
To standardize the appeal periods provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days
within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the
order dismissing a motion for a new trial or motion for reconsideration. Henceforth, this fresh
period rule shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the
Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court
of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme Court.
GRACE XAVIERE E. ESCOSIA
21
A proceeding for the probate of a will is one in rem. Even though the petitioner-heirs were
not mentioned in the petition for probate, they eventually became parties thereto as a
consequence of the publication of the notice of hearing. As parties to the probate proceedings,
they could have still filed a petition for relief from judgment after the denial of their motion to
reopen. For failure to make use without sufficient justification of the remedies available to
them, petitioner-heirs could no longer resort to a petition for annulment of judgment.
Moreover, the non-inclusion of their names in the petition and the alleged failure to personally
notify them of the proceedings do not constitute extrinsic fraud.
A "final" judgment or order is one that finally disposes of a case, leaving nothing more for the
court to do in respect thereto such as an adjudication on the merits which, on the basis of
the evidence presented at the trial, declares categorically what the rights and obligations of the
parties are and which party is in the right, or a judgment or order that dismisses an action on
the ground of res judicata or prescription, for instance.12 It is to be distinguished from an order
that is "interlocutory", or one that does not finally dispose of the case, such as an order denying
a motion to dismiss under Rule 16 of the Rules of Court, or granting a motion for extension of
time to file a pleading. As such, only final judgments or orders (as opposed to interlocutory
orders) are appealable. Now, a "final" judgment or order in the sense just described becomes
"final and executory" upon expiration of the period to appeal therefrom where no appeal has
been duly perfected or, an appeal therefrom having been taken, the judgment of the appellate
court in turn has become final. It is called a "final and executory" judgment because execution
at such point issues as a matter of right.
GRACE XAVIERE E. ESCOSIA
22
EX: (1) support pendente lite; (2) indigent (person is ordered to pay upon
discovery by the court that he is not an indigent)
Matters to be heard:
1. Execution pending appeal
2. Orders for protection
3. Indigent
4. Compromise
Can an MR stay/suspend the application for injunction etc? Once there is a
judgment, it is immediately executory. Theoretically, there is still jurisdiction. No
clear answer.
Mina v. Vianzon demolition issued by the court of origin (MTC). Exception:
47
discretionary execution (because of failure to pay monthly rentals).
48
Who has to make reports? Sheriff (Patawaran v. Nepomuceno)
Is a motion for execution indispensable? YES.
o What if executory in nature? YES.
o Cagayan de Oro v. CA lawful levy is necessary before sale is effected.
Can the court direct on its own the issuance of a writ of execution? NO.
Revival of judgment
o Sec. 6. by independent action after lapse of 5 years from entry of judgment
o When can you file motion for execution? 5 years from entry of judgment (life
of the writ)
o 10 years prescriptive period for judgment; not original action; always 10
years regardless of cause of action
Death after judgment by the judgment obligor
o Executed by executor or administrator
o If sum of money case? No execution. File against the estate.
o If died after levy? Proceed with the case.
o Preference is given to person with levy.
Sec. 8 only provides for form
49
47
In the execution of the judgment in ejectment cases, the issuance of a demolition order is
within the jurisdiction of the Municipal Trial Court which rendered the decision. The Regional
Trial Court that affirms the decision of the Municipal Trial Court cannot order execution of its
judgment. The exception is when the Regional Trial Court grants execution pending appeal.
48
The submission of the return and periodic reports is not an empty requirement. It serves to
update the court as to the status of the execution and to give it an idea as to why the judgment
was not satisfied. It also provides insights for the court as to how efficient court processes are
after judgment has been promulgated. Sheriffs, as public officers are repositories of public trust
and are under obligation to perform the duties of their office honestly, faithfully and to the best
of their ability. They are bound to use reasonable skill and diligence in the performance of their
official duties particularly where the rights of individuals may be jeopardized by their neglect.
23
Sale proper:
o No minimum requirement of persons/participants
o Public means open to the public
o 9am-2pm : office of the clerk of court; usually outside hall of justice
24
Enforcement
1. Domestic judgment
o Par. (a) conclusive to title, condition, status, relationship, probate, estate;
presumptive as to death (probate/estate) because will can be probated
during the lifetime of the testator
o Pars. (b) and (c) (b) is res judicata, (c) is conclusiveness of judgment or
preclusion of issue
50
Barreto v. CA Aspects of conclusiveness of judgment: (1) bar
prosecution of same action, same claim; (2) bar relitigation of particular
fact/issue in another action for same parties under different claim/cause
of action (a particular fact already resolved by the court)
Example: T sued P, who is a contractor of a development project. There
was a contract and P failed to comply with the provisions. T contests the
contents and validity of the contract. Ruling of court: valid contract.
Later on, T sued P and B, who is in charge of windows, and R and M, in
charge of wiring. T wants payment or comply with contract. Can T still
sue P? YES. Can the court determine validity of the contract? NO, validity
was already resolved.
2. Foreign judgment
o Conclusive as to specific title of things; Presumptive against person (Roehr v.
51
Rodriguez)
50
The Rule 39, Sec. 47 (b)(c) embodies the fundamental principles of res judicata, finality of
judgment and estoppel by judgment, which means that once a judgment has become final and
executory, the issues therein litigated upon are laid to rest. The doctrine of res judicata is of
two aspects. The first aspect is the effect of a judgment as a bar to the prosecution of a second
action upon the same claim, damand or cause of action. The second aspect precludes the
relitigation of a particular fact or issue in another action between the same parties or their
successors in interest, on a different claim or cause of action.
51
Before our courts can give the effect of res judicata to a foreign judgment [of divorce] x x x, it
must be shown that the parties opposed to the judgment had been given ample opportunity to
o
o
Rule 42
MTC RTC CA
MTC RTC (MR then
appeal EXCEPT in
summary procedure)
Small claims decision
is final and executor
UNLESS GADALEJ.
In
intra-corporate:
RTC CA via Rule 43
Contents:
1. Full names
2. Material dates
3. Matters
do so on grounds allowed under Rule 39, Section 48, 1997 Rules of Civil Procedure. It is
essential that there should be an opportunity to challenge the foreign judgment, in order for
the court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of
Court clearly provide that with respect to actions in personam, as distinguished from actions in
rem, a foreign judgment |merely constitutes prima facie evidence of the justness of the claim
of a party and, as such, is subject to proof to the contrary.
GRACE XAVIERE E. ESCOSIA
25
4. Duplicate original
of judgment
5. CNFS
6. Verification
7. Copies of the
pleadings
8. Affidavit
of
service
9. Copy furnish the
petition
Entertain only if
doctrinal change or
affect rights of parties
- Receipt
of
decision
- Filing of MR/MNT
- Denial
of
MR/MNT
5. Parties,
issues,
grounds
6. Explanation if not
done
through
personal service
(affidavit
of
service)
Perfection of appeal
Made within the reglementary period
Ex. Plaintiff received the decision on Feb 1, filed appeal on Feb 8. Defendant
received the decision on Feb 3, filed appeal on Feb 7. Court still retained
jurisdiction on Feb 7.
Rule 41, Sec. 9 lose jurisdiction only after expiration of period to appeal (only if
court still has possession of records)
If both parties appealed, court also loses jurisdiction over the case.
Rule 43
QJA CA
Can be extended
upon payment of
docket fees within the
reglementary period
Can you ask for a
second
extension?
GR:
No.
EX:
compelling reasons
Memorize
requirements:
1. Verified
2. CNFS
3. Certified
true
copy of judgment
4. Affidavit
of
material dates
RULE 65
Special civil action
60 days
Cannot extend (as of Dec 2007)
GADALEJ + no appeal/speedy remedy
Rules 45-55 (Procedure in the CA)
26
Rule 46
Rule 47
Annulment is not an appeal; it is an original action.
Can u seek annulment of MTC decision? YES, file in the RTC.
Can u seek annulment of CA decision? NO.
Only provision used in two ways:
1. Lack of jurisdiction over subject matter and defendant
2. Extrinsic evidence
Filed before RTC, CA
Consider nature of the case
Only a remedy in a civil case, not a criminal case
Rule 48
Equivalent to pre-trial in CA
Whether original or appealed case
Effect if appellant is absent? Appeal is dismissed (Rule 50)
They can stipulate on facts grant of MNT (newly discovered evidence) or in an
original action filed before CA
Rule 49
Only original cases are argued
Not appealed cases UNLESS CA feels theres a need (reasonable discretion)
Do you hear motions? NO, unless court says otherwise
Rule 50
Dismissal of appeal:
1. Filed outside reglementary period
2. Pay docket fees outside reglementary period (even if appeal is filed on time)
3. Failed to file appellants brief
4.
Rule 51
Decided by divisions of 3
o SC decisions decided by divisions of 5
o The rest can be juggled except the ponente
o There should be a unanimous decision.
o If there is a dissent, create a special division of 5. Created by presiding justice
CA will never render a decision en banc EXCEPT admin cases
Become final and executory after lapse of reglementary period
o Entry of judgment is the same
o In real practice, youll receive the entry 1-2 months after decision. This is to
allow the other party to avail of other remedies.
Rules 52-53
MR
Same grounds: contrary to law,
misappreciation of evidence, excessive
damages
RTC: Resolve within 30 days
CA: Resolve within 90 days
MNT
RTC: FAME + newly discovered evidence
CA: newly discovered evidence
RTC: File within reglementary period
CA: From time appeal is perfected and as
long as CA has jurisdiction
Rule 54
Initially, raffled and assigned to a division for collation Collegial body (3 justices)
Unanimous vote (decision)
Rule 56 (Procedure in the SC)
27
If its an original action, do you file a petition for review on certiorari? NO.
No prescribed form in an action against members of the BAR. (Ex.. letter of
communication). Refer to IBP for investigation.
Procedure:
o Original cases consider Rules 46 (ALWAYS), 48, 49, 51, 52
o Appealed cases consider Rule 45 (ALWAYS), 48, 51, 52
MNT is not a remedy in the SC. Although SC has the power to entertain it in its
discretion.
Provisional Remedies
GR: Provisional remedy is only an ancillary action.
EX: Under ADR law, there can be a principal action of the provisional remedy if in aid
of an arbitration case.
Rule 57
52
Manguila v. CA (cited Davao Light & Power v. CA) when jurisdiction over the
defendant should be acquired.
Initiated in 2 ways:
1. Ex parte (together with initiatory pleading) no notice to other party
2. Application while the action is pending
o File a motion (comply with Rule 15)
o Must be with notice and hearing
Grant of writ of execution Stages:
1. Issue order granting application may be without notice to party
2. Order issuing writ no summons yet
3. Writ is implemented need jurisdiction over the party
52
It goes without saying that whatever be the acts done by the Court prior to the acquisition of
jurisdiction over the person of defendant x x x issuance of summons, order of attachment and
writ of attachment x x x these do not and cannot bind and affect the defendant until and
unless jurisdiction over his person is eventually obtained by the court, either by service on him
of summons or other coercive process or his voluntary submission to the courts authority.
Hence, when the sheriff or other proper officer commences implementation of the writ of
attachment, it is essential that he serve on the defendant not only a copy of the applicants
affidavit and attachment bond, and of the order of attachment, as explicitly required by Section
5 of Rule 57, but also the summons addressed to said defendant as well as a copy of the
complaint.
28
7.
53
To merit an award of actual damages arising from a wrongful attachment, the attachment
defendant must prove, with the best evidence obtainable, the fact of loss or injury suffered and
the amount thereof. Such loss or injury must be of the kind which is not only capable of proof
but must actually be proved with a reasonable degree of certainty. As to its amount, the same
must be measurable based on specific facts, and not on guesswork or speculation. In particular,
if the claim for actual damages covers unrealized profits, the amount of unrealized profits must
be established and supported by independent evidence of the mean income of the business
undertaking interrupted by the illegal seizure.
Basis of court in actual damages prove the following: (1) best evidence
fact of lost and injury suffered ; not capable of proof but proved with
reasonable degree of certainty; (2) amount thereof
o Can actual damages cover unrealized profits? YES, but supported by
independent evidence of the income of the business undertaking
o How do you prove moral and exemplary damages? Wrongful attachment was
with malice or bad faith.
o Can you recover attorneys fees? GR: Not award if theres no award of moral
or exemplary damages. EX: incurred expenses for the lift of a morally issued
attachment.
54
Metro Inc. v. Lara Gift & Decors (2009) (cited Liberty Insurance v. CA) what is
fraud? Debtor intended to defraud the creditor in incurring the debt. Intent is a
condition of the mind. Fraud must relate to the execution of the agreement. It
must induced the other party into giving their consent. Preconceived plan not to
pay. Involves a question of fact.
55
D. M. Wenceslao v. Readycon when you post the counterbond, does it mean
you waive claim for damages? NO.
Rural Bank of Sta. Barbara v. Manila Mission (2009) motion to release treated
56
as a third party claim
54
To sustain an attachment on this ground, it must be shown that the debtor in contracting the
debt or incurring the obligation intended to defraud the creditor. The fraud must relate to the
execution of the agreement and must have been the reason which induced the other party into
giving consent which he would not have otherwise given. To constitute a ground for
attachment in Section 1(d), Rule 57 of the Rules of Court, fraud should be committed upon
contracting the obligation sued upon. A debt is fraudulently contracted if at the time of
contracting it the debtor has a preconceived plan or intention not to pay, as it is in this case.
The applicant for a writ of preliminary attachment must sufficiently show the factual
circumstances of the alleged fraud because fraudulent intent cannot be inferred from the
debtors mere non-payment of the debt or failure to comply with his obligation.
55
Posting of a counter-bond is not tantamount to a waiver of the right to damages arising from
a wrongful attachment. Whether the attachment was discharged by either of the two (2) ways
indicated in the law, i.e., by filing a counterbond or by showing that the order of attachment
was improperly or irregularly issued, the liability of the surety on the attachment bond subsists
because the final reckoning is when "the Court shall finally adjudge that the attaching creditor
was not entitled" to the issuance of the attachment writ in the first place. The attachment
debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by
simply availing himself of one way of discharging the attachment writ, instead of the other.
Moreover, the filing of a counterbond is a speedier way of discharging the attachment writ
maliciously sought out by the attaching party creditor instead of the other way, which in most
instances like in the present case, would require presentation of evidence in a fullblown trial on
the merits and cannot easily be settled in a pending incident of the case.
GRACE XAVIERE E. ESCOSIA
29
Third party claim who has a better right or interest over the property; execution
will be suspended
Applicants bond answers for any damages that defendant may suffer as a
result of the attachment
For the process to continue, the burden is on the applicant to post another bond
to cover damages of the third party complainant.
Third party claim
o In execution, vindicate right only in a separate action. In attachment,
vindicate right in same or separate action.
o In execution, judgment is final and executory. In attachment, case just
started.
o Third party claim is served by the sheriff.
o Third party claim can be treated as an intervention.
Which would prevail: previous yet unregistered sale or subsequent duly
annotated? Valdevieso v. Damalerio levy on attachment duly registered takes
57
precedence over prior unregistered sale.
56
The filing by respondent of the Motion to Release Property from Attachment was made on
the advice of the Sheriff upon whom respondent served its Affidavit of Title and Ownership.
Respondent should not be faulted for merely heeding the Sheriffs advice. Apparently, the
Sheriff, instead of acting upon the third-party claim of respondent on his own, would rather
have some direction from the RTC. Indeed, the Sheriff is an officer of the RTC and may be
directed by the said court to allow the third-party claim of respondent. Therefore, the filing of
the Motion in question can be deemed as a mere continuation of the third-party claim of
respondent, in the form of its Affidavit of Title and Ownership, served upon the Sheriff, in
accord with the first paragraph of Section 14, Rule 57 of the Rules of Court. We may also
consider the Motion to Release Property from Attachment, filed by respondent before the RTC,
as a Motion for Intervention in Civil Case No. D-10583, pursuant to the second paragraph of
Section 14, Rule 56, in relation to Rule 19 of the Rules of Court.
57
The settled rule is that levy on attachment, duly registered, takes preference over a prior
unregistered sale. This result is a necessary consequence of the fact that the property involved
was duly covered by the Torrens system which works under the fundamental principle that
registration is the operative act which gives validity to the transfer or creates a lien upon the
land. The preference created by the levy on attachment is not diminished even by the
subsequent registration of the prior sale. This is so because an attachment is a proceeding in
rem. It is against the particular property, enforceable against the whole world. The attaching
creditor acquires a specific lien on the attached property which nothing can subsequently
destroy except the very dissolution of the attachment or levy itself. Such a proceeding, in effect,
means that the property attached is an indebted thing and a virtual condemnation of it to pay
the owners debt. The lien continues until the debt is paid, or sale is had under execution issued
on the judgment, or until the judgment is satisfied, or the attachment discharged or vacated in
some manner provided by law.
Rule 58
Amended in Dec 2007 includes Rule 41, 58, 65; amended Sec. 5, Rule 58
Bacolod City Water District v. Labayen distinction between original action and
60
provisional remedy of injunction
58
Under Sec 13 Rule 57, when the attachment is challenged for having been illegally or
improperly issued, there must be a hearing, with the burden of proof to sustain the writ being
on the attaching creditor. That hearing embraces not only the right to present evidence but also
a reasonable opportunity to know the claims of the opposing parties and meet them. It means
a fair and open hearing. Written opposition filed is not equivalent to a hearing. The absence of
a hearing before the RTC bars the discharge of the writ of preliminary attachment for the
simple reason that the discharge or dissolution of said writ, whether under Sec. 12 or Sec. 13 of
Rule 57 of the Rules of Court, as amended, shall be granted only after due notice and hearing.
59
Under the Rules, there are 2 ways to secure the discharge of an attachment. First, the party
whose property has been attached or a person appearing on his behalf may post a security.
Second, said party may show that the order of attachment was improperly or irregularly issued.
60
The main action for injunction is distinct from the provisional or ancillary remedy of
preliminary injunction which cannot exist except only as part or an incident of an independent
GRACE XAVIERE E. ESCOSIA
30
action or proceeding. As a matter of course, in an action for injunction, the auxiliary remedy of
preliminary injunction, whether prohibitory or mandatory, may issue. Under the law, the main
action for injunction seeks a judgment embodying a final injunction which is distinct from, and
should not be confused with, the provisional remedy of preliminary injunction, the sole object
of which is to preserve the status quo until the merits can be heard. A preliminary injunction is
granted at any stage of an action or proceeding prior to the judgment or final order. It persists
until it is dissolved or until the termination of the action without the court issuing a final
injunction.
61
A main action for injunction seeks a judgment embodying a final injunction which is distinct
from, and should not be confused with, the provisional remedy of preliminary injunction, the
sole object of which is to preserve the status quo until the merits can be heard. The latter
persists until it is dissolved or until the termination of the action without the court issuing a
final injunction.
62
To be entitled to an injunctive writ, the petitioner has the burden to establish the following
requisites: (1) a right in esse or a clear and unmistakable right to be protected; (2) a violation of
that right; (3) that there is an urgent and permanent act and urgent necessity for the writ to
prevent serious damage.
63
A writ of preliminary injunction is generally based solely on initial and incomplete
evidence. The evidence submitted during the hearing on an application for a writ of
preliminary injunction is not conclusive or complete for only a sampling is needed to give the
trial court an idea of the justification for the preliminary injunction pending the decision of the
case on the merits. As such, the findings of fact and opinion of a court when issuing the writ of
preliminary injunction are interlocutory in nature and made even before the trial on the merits
is commenced or terminated. There are vital facts that have yet to be presented during the
trial which may not be obtained or presented during the hearing on the application for the
injunctive writ. The trial court needs to conduct substantial proceedings in order to put the
main controversy to rest. It does not necessarily proceed that when a writ of preliminary
injunction is issued, a final injunction will follow.
64
In applications for preliminary injunction, the dual requirement of prior notice and hearing
before injunction may issue has been relaxed to the point that not all petitions for preliminary
injunction need undergo a trial-type hearing, it being doctrinal that a formal or trial-type
hearing is not, at all times and in all instances, essential to due process.
65
The injunction bond insures with all practicable certainty that the defendant may sustain no
ultimate loss in the event that the injunction could finally be dissolved. The party against whom
the injunction is directed has a right of recourse against either the applicant or his surety or
against both. Attorneys fees, litigation costs, and costs of delay can be recovered from the
injunction bond as long as it can be shown that said expenses were sustained by the party
seeking recovery by reason of the writ of preliminary injunction, which was later on determined
as not to have been validly issued and that the party who applied for the said writ was not
entitled thereto.
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3.
66
Malice or lack of good faith is not an element of recovery on the bond. The dissolution of the
injunction, even if the injunction was obtained in good faith, amounts to a determination that
the injunction was wrongfully obtained and a right of action on the injunction bond
immediately accrues. Thus, for the purpose of recovery upon the injunction bond, the
dissolution of the injunction because of petitioners main cause of action provides the
actionable wrong for the purpose of recovery upon the bond.
67
A preliminary injunction or TRO may be granted only when, among others, the applicant,
unless exempted by the court, files with the court where the action or proceeding is pending, a
bond executed to the party or person enjoined, in an amount to be fixed by the court, to the
effect that the applicant will pay such party or person all damages which he may sustain by
reason of the injunction or TRO if the court should finally decide that the applicant was not
entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be
issued. It has been ruled that the posting of a bond is a condition sine qua non in order that the
writ of preliminary injunction may issue.
68
In several cases the Court denied the application for a Writ of Preliminary Injunction that
would enjoin an extrajudicial foreclosure of a mortgage, and declared that foreclosure is proper
when the debtors are in default of the payment of their obligation. Where the parties
stipulated in their credit agreements, mortgage contracts and promissory notes that the
mortgagee is authorized to foreclose the mortgaged properties in case of default by the
mortgagors, the mortgagee has a clear right to foreclosure in case of default, making the
issuance of a Writ of Preliminary Injunction improper. However, the doctrine in these cases is
not applicable to the case at bar where the identity of the creditor-mortgagor is highly
disputable. This Court emphasizes that the determination of who is the creditor-mortgagee is
only for purposes of determining the propriety of issuing a writ of preliminary injunction, based
on the evidence presented before the hearing for the issuance of a preliminary injunction. It
will not bar the RTC from making its own determination as to who is the true creditormortgagee after trial and presentation of evidence on the main case. To establish the essential
requisites for a preliminary injunction, the evidence submitted by the plaintiff need not be
conclusive and complete. The plaintiffs are only required to show that they have an ostensible
right to the final relief prayed for in their complaint.
69
Findings of the trial court granting or denying a petition for a writ of preliminary injunction
based on the evidence on record are merely provisional until after the trial on the merits of the
case shall have been concluded.
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Discharge of injunction:
1. Insufficiency of bond is ground to deny, not dissolve
2. Post counterbond
o Right of applicant can be protected against whom injunction was issued
o Counterbond + Sufficient cause (damage suffered is greater)
Rule 59
Receivership to preserve property from being wasted or dissipated (rule 39, sec.
41)
Only provisional remedy you can apply for even after judgment has become final
and executory. (See Rule 39, Sec. 41)
Citibank v. CA requirement of oath and bond before receiver is placed on duty
Grounds (MEMORIZE Sec. 1):
1. Property in danger of being removed or destroyed
2. Mortgage agreement and there is a stipulation, or property used as security
for the mortgage is insufficient
3. After judgment
4. Any other purposes court may find convenient
Kinds of bond:
1. Bond of applicant
2. Bond of receiver (to faithfully comply with his duties)
How to dissolve:
1. No cause for continuation
2. Counterbond
Rule 60
Replevin not an action; principal action is for recovery of possession
Can only be issued against the particular property described in the application
MEMORIZE: Contents of affidavit
1. Registered owner or lawful possessor
o Ex. Contract for lease between rental company and bank for the
purchase of 50 cars. Issued in the name of the bank then lease to rental
company. After full payment, straight deed of sale for rental company. If
anything happened to cars when no full payment has been made, rental
company can sue as lawful possessor.
2. Not subject of levy, distraint, attachment, etc.
3. Unlawful deprivation
o If deprivation is lawful (ex. Assessment, levy, custodia legis), cannot be
subject of replevin.
4. Market value of the property
Rule 61
Important provisions: Secs. 4,5,6,7
Only provisional remedy that does not require a bond.
Theres no damages in support. Only reimbursement.
Though an interlocutory order, can be a basis of a writ of execution
If refuse to comply, court could issue a writ of execution.
For as long the case is pending, avail remedy in the same action. If there is
already a judgment, recover in a separate action. (Sec. 7)
Sec.6 (offspring in a criminal case)
o DNA Evidence : If results say you are not the father, it is conclusive. If results
below 99.9% say you are the father, it is merely corroborative. If results
99.9% and above say you are the father, it is merely disputable.
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A believed he was the father of B. He paid for Bs support. Later on, A learned
that he is not the father. What is his remedy? If the action is still pending, he
can apply for reimbursement in the same action. If not, he must apply for
reimbursement in a separate action.
Special Civil Actions
Primary application of rules. In case of inadequate provisions (like Rule 62), use
rules for ordinary procedure.
If filing of a counterclaim is allowed in the SCA, then there can also be execution.
Rule 62
There is no pending case. (Ex. 2 warehouse receipts reach warehouse man. Sue
both oppositors)
Who can file:
1. Person who has an interest not in conflict with claiming parties
2. Person who has no interest on the subject matter
Ex. Insurance policy is claimed by 2 ladies both claiming to be the legal spouse of
the decedent.
Who will pay filing fees? Applicant will advance. This will become a lien on the
judgment award.
Areza v. Diaz can there be a counterclaim in an action for interpleader? YES.
Rule 63
70
Rule 64
1. It is a petition for certiorari title
2. Period: within 30 days. Not extendible.
o Can it be interrupted? YES, by MR/MNT allowed in the agency where the
action originated.
3. Limited application: Only decisions of COMELEC and COA
4. Can only be filed in the SC
Not an appeal; Still a mode of review
70
SCs original jurisdiction to issue a writ of certiorari is not exclusive, but is concurrent with the
RTC and CA. A direct invocation of the SCs original jurisdiction to issue these writs should be
allowed only when there are special and important reasons therefor.
71
: A justiciable controversy refers to an existing case or controversy that is appropriate or ripe
for judicial determination, not one that is conjectural or merely anticipatory. Sheer speculation
does not give rise to an actionable right
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Rule 65
No appeal/speedy remedy + GADALEJ
TAKE NOTE:
1. Certiorari is used in quasi-judicial and judicial acts. Does not include
ministerial acts.
2. Prohibition for judicial, quasi-judicial, ministerial act
o Injunction can apply in any case.
o Ultimate relief: To prohibit/stop from enforcing act
3. Mandamus could work against a ministerial act
o There should be a law that enjoins the act.
o Ex. Cannot compel the prosecutor to file an information or the labor
arbiter to conduct a hearing.
o Can you compel a person to comply with a private contract? NO. File
action for specific performance, not mandamus.
Can you extend filing for petition for certiorari? The Code is silent. Old Code
provides extension of 15 days, but this was removed in the 1997 Rules. In Sirs
opinion, no extension may be granted.
Rule 66
Instituted by:
1. Government (Sec. 1)
2. Aggrieved party in his own name (Sec. 5)
Grounds:
1. Person usurps public office
2. Act deemed forfeited office
3. Association without juridical entity
How to initiate:
1. SolGen directed by President
2. SolGen is convinced by sufficiency of complaint
3. Upon the relation of another person (relator)
o Seek permission from the court first
Special rule on venue: Place where respondent resides
Rule 67
There must be no breach.
Original jurisdiction: RTC, regardless of amount.
Taking must be for a public purpose.
Rule 68
Act 3135 (Extrajudicial foreclosure)
Judicial foreclosure:
o Complaint (outstanding obligation and security is due and remains unpaid)
Need decision from the court
Extrajudicial foreclosure:
o Petition for extrajudicial foreclosure before the clerk of court headed by an
executive judge. As long as there is notice and hearing, there would be a
public auction. Its faster and less hassle so its the ideal mode.
REMEMBER:
1. Decision in court
o Failure to pay amount specified = foreclosure
o Redemption : equity of redemption (not less than 90 days but not more
than 120 days)
o If not provision of law that provides for a period, apply equity of
redemption.
72
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.
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3.
4.
Rule 69
Only judicial partition.
Compare with Rule 84 (Extrajudicial partition)
Only existing co-ownership by reason of any kind (contract, law, etc)
Stages:
1. Determination of co-ownership
2. Partition
There must be no breach.
Once answer is filed, set for pre-trial.
No need for commissioners if parties already agree.
Ex. Not implead a co-owner. (Sec. 13) paramount rights cannot be prejudiced;
Co-owner can claim his right through a petition for relief from judgment; If heir,
publication is effective notice; If not an heir, file an annulment of judgment.
Rule 70
Summary Procedure
Can MTC pass upon issue of ownership? YES if incident to possession.
Exclusive jurisdiction is with the MTC.
Instituted in a period not exceeding 1 year.
o This is not a prescriptive period.
o After 1 year accion publiciana/interdictal (not reinvindicatoria)
Requirements on allegations:
1. Unlawful detainer : demand is important (Sec. 2)
o Pay AND vacate; comply AND vacate
o Defective demand letter will cause dismissal of the case
2. Forcible entry
o (1) prior physical possession; (2) Force, intimidation, stealth, strategy,
threats
o No need for demand letter
Appeal
o Ordinary appeal to MTC that render decision (notice of appeal)
o MR before appeal? NO. (REMEMBER THIS)
o Can you stay execution? NO, decision is immediately executory. File appeal
within reglementary period, and execution is stayed in abeyance.
o Supersedeas bond bond to cover unpaid rentals from failure to pay till final
judgment
o If defendant can no longer pay? Not defeat appeal. Compelled to surrender
possession of the property.
o Benedicto case able to obtain injunction in CA, stays decision
TAKE NOTE: Prohibited pleadings
Preliminary/mandatory injunction can be issued in the MTC within 5 days from
filling of the complaint (REMEMBER, not 10 days)
o Can still apply in the RTC; 10 days from perfection of appeal
Rule 71
Contempt disrespect, disobedience to order of court
Penalty is imprisonment to fine
Direct contempt in the presence or so near a court/judge.
o Summary (no notice or hearing)
o Ex. not wearing tie, dont want to swear under oath, not answer
Indirect contempt violation of writ, order, process of court
o Grounds (Sec. 3)
o How do you initiate (Sec. 4)
(1) Verified petition filed and docketed separately + CNFS
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