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REMEDIAL LAW REVIEW Past exams Civil Procedure Prof. Antonio R. Bautista II.

JURISDICTION
Introductory/general concepts

Q. Up to what stage of a civil action may the issue of jurisdiction be raised? (5%) [1997 Midterms IIIa] A. In case of jurisdiction over the subject matter, the question may be invoked at any stage of the proceedings (even on appeal), but the issue of jurisdiction over the person of the defendant must be raised either in the motion to dismiss or by way of an affirmative defense in the answer. (Amigo v CA, 253 SCRA 382). Q: P sues D in RTC-Manila to recover P100,000.00 and a parcel of land located in Manila. P is a Manila resident while D is a resident of Quezon City. D moves to dismiss on the ground of lack of jurisdiction. What ruling? (5%) A: Motion denied. The claim for P100,000.00 may be properly joined with the claim for recovery of real property, and RTC has jurisdiction over such money claim since it has jurisdiction over the claim for recovery of real property. (Rule 2, Sec. 5[c]) Q: Suppose you are the counsel for D who is sued in the MTC for unlawful detainer and on a P50,000.00 promissory note (not related to the lease subject of the action), what would be your proper and effective procedural recourse? (5%) A: I will move for severance of one cause of action because of misjoinder of the two causes of action, one - to wit, the unlawful detainer action - being a special civil action. (Rule 2, Secs. 5 [b] and 6) Q: Last February 1990, T died in Quezon City, his place of residence, leaving a will. May the RTC of Bulacan take cognizance of the petition for the probate of his will even if he left no property in Bulacan? (5%) A: Yes, deceased's residence or location of his estate is not an element of jurisdiction of the probate court but is merely one of venue. So, RTC-Bulacan may take cognizance of the petition for probate if there is no objection to the venue. Jurisdiction (subject matter) of the different levels of courts in civil cases Q. P, a Manila resident, filed a collection action against C and D in RTC Manila, alleging a total claim of P230,000 (P180.,000 for principal and P50,000 for attorney's fees) against C based on a promissory note and a claim of P100,000 against D based on the unpaid purchase price of goods delivered. Both C and D moved to dismiss for lack of jurisdiction. Rule on both motions to dismiss. (1996 Midterm Exam VII) A. Both motions to dismiss granted. Jurisdiction pertains to the MTC because the total amount (exclusive of attorney's fees) of each cause of action is below the jurisdictional minimum of P200,000 for RTC jurisdiction. Joinder of the 2 causes of action against C and D is improper because there is a misjoinder of parties, the two pleaded causes of action not arising out of the same transaction or series of transaction and there being no question of law or fact common to C and D, and joinder of causes of action is subject to the rule on joinder of parties. (See Flores v. Mallare-Phillipps, 144 SCRA 377 [2nd. Div., 1988])

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Q. A, a Manila resident, bought a color TV set at the price of P15,000.00 on 24 monthly installments from B Co., a Manila-based appliance company. The transaction was covered by a conditional sale contract. A defaulted in his monthly installment payments after having paid 5 such installments. In what court may B Co. bring the action to recover the TV set? (1993 Midterm Exam VIb) A. No answer Q. P corporation filed an action against D in the RTC to collect certain amounts of money amounting to P 2 million on its claim that D, while president of P corporation and by using his position as such president and through fraud and misrepresentation, misappropriated and diverted to his personal use these corporate funds. D moved to dismiss the complaint on the ground that it falls within the jurisdiction of the Securities and Exchange Commission (SEC). Rule on the motion to dismiss. (5%) [1995 Finals VIIIa] A. Motion to dismiss granted. The complaint alleges acts committed by a corporate officer against the corporation, which amounts to fraud and misrepresentation and thus detrimental to the interest of the public. Therefore, what was otherwise an ordinary action for a sum of money has been converted to an inter-corporate controversy which calls for the adjudicative powers of the SEC under Sec 5 (a) of PD 902-A. (Alleje v CA, 240 SCRA 495). *** note amendment to PD 902-A in the Securities Regulation Code of 2000 transferring adjudicative powers of the SEC over certain cases to the regular courts. Q. P, a senior Vice-President of a corporation, was dismissed for lack of confidence. Aggrieved, P sued the company for illegal dismissal with prayer for back wages, reinstatement, damages and other benefits before the Labor Arbiter. The company moved to dismiss on the ground that the Labor Arbiter has no jurisdiction on the over the action. Rule on the motion. (5%) [1997 Midterms VIa] A. Motion granted. Jurisdiction properly pertains to the Securities and Exchange Commission because the dismissal of a corporate officer is a corporate act and/or an intra-corporate controversy. (Estrada v NLRC, GR No. 106722, 04 October 1996) *** note amendment to PD 902-A in the Securities Regulation Code of 2000 transferring adjudicative powers of the SEC over certain cases to the regular courts. Q. What is the legal effect of the non-payment of the docket fees in full? (5%) A. The court does not acquire jurisdiction over the subject matter in the case. Therefore, the entire proceeding undertaken in the case are null and void. [Hodges v. CA185 SCRA 281 (1990)] Q: P sues D in RTC-Manila to recover P100,000.00 and a parcel of land located in Manila. P is a Manila resident while D is a resident of Quezon City. D moves to dismiss on the ground of lack of jurisdiction. What ruling? (5%) A: Motion denied. The claim for P100,000.00 may be properly joined with the claim for recovery of real property, and RTC has jurisdiction over such money claim since it has jurisdiction over the claim for recovery of real property. (Rule 2, Sec. 5[c])

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Q. Action by P against D in the RTC for a sum of money was sought to be dismissed by D on the ground of prescription. The motion to dismiss was denied and D brought a special civil action for certiorari in the CA against the order of denial of his motion to dismiss. The CA dismissed the petition. Then, D filed his answer, after which trial was held and judgment rendered against D. On appeal from this judgment to the CA, D filed a motion to dismiss the complaint on the ground of lack of jurisdiction, alleging htat P had not paid the appropriate docketing fees in the trial court. Rule on the motion to dismiss. A. Motion to dismiss denied. Although the payment of the proper docket fees is a jurisdictional requirement, the TC may allow the plaintiff in an action to pay these fees within a reasonable time before the expiry of the applicable prescriptive or reglementary period. But if the plaintiff fails to comply with this requirement, defendant should timely rise the issue of jurisdiction or else he would be considered in estoppel. Here, D filed an answer and participated in the proceedings before the TC. It was only after judgment was rendered against him that he raised the issue of jurisdiction. While the lack of jurisdiction ... may be raised at any stage of an action, the party raising such question may be estopped if he has actively taken part in the very proceedings which he questions and he only objects to the court's jurisdiction because the judgment or decision subsequently rendered is adverse to him. (National Steel Corp. v CA)

III.

VENUE

Q: Last February 1990, T died in Quezon City, his place of residence, leaving a will. May the RTC of Bulacan take cognizance of the petition for the probate of his will even if he left no property in Bulacan? (5%) A: Yes, deceased's residence or location of his estate is not an element of jurisdiction of the probate court but is merely one of venue. So, RTC-Bulacan may take cognizance of the petition for probate if there is no objection to the venue.

IV. PARTIES
Party in Interest Q. A, owner of an improved city lot, leased the same to B. While B is in possession, he was dispossessed by C. B, therefore, filed an action against C to recover possession. C contested upon the ground that B, not being the owner of the land, is not the real party in interest. Is C's contention correct? (5%) A. If the action filed is for forcible entry wherein the issue is only possession de facto, B, as the lessee, has a right of action against C to recover the same. B is a party in interest in the sense that he has a present substantial interest in the land, the possession of which he had been deprived. Capacity to sue and be sued Q. X Company, a corporation incorporated under the laws of Michigan, USA, entered into a "representative agreement" with Y Company, a domestic corporation, for the sale in the Philippines of X Company's electronics products in consideration for a stipulated

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commission. After the agreement was in force for a year, X Company terminated it and then brought an action in the RTC-Makati to enjoin Y Company from dealing in similar products as those of X's. Y Company moved to dismiss the action on the ground that X Company, being a foreign corporation not licensed to do business in the Philippines, has no capacity to sue. Rule on the motion to dismiss. (10%) [1997 Midterms I] A. X Company may well be said to be doing business in the Philippines because of the extensiveness and regularity of the sales of its products in this country whereby it made Y Company its mere agent in pursuit of its business. However, Y Company is estopped to challenge the personality of X after it has acknowledged the same by entering into a contract with it. This result is dictated by fair play. A person contracting with a foreign corporation cannot take advantage of the latter's non-compliance with the licensing requirement where such person has received the benefits of the contract. (Communication Materials and Design Inc v CA, GR 102223, 22 August 1996) Joinder of parties Q. D purchased a car from P, a car dealer, on installments and secured the purchase price balance (covered by a promissory note) with a chattel mortgage on the car. While the purchase price was not yet fully paid and the mortgage on the car still existing, D sold the car to E. With D having defaulted on the payments, P, seeking to foreclose the chattel mortgage, sued out a writ of replevin against D and E, but since D could no longer be served with summons, P moved to drop D as defendant. Rule on P's motion to drop D. (10%) [1996 Midterms III] A. The motion to drop D as defendant cannot be granted without dismissing the complaint because D is an indispensable party. The replevin suit is anchored on P's alleged right to possess the car and which right in turn is founded on the alleged default of D. If the case against D is dismissed, there would be no remaining cause of action against E. P's right to possess the car is conditioned on D's actual default and this default cannot be established in D's absence. (Servicewide Specialists Inc. v CA, GR No. 103301, 08 December 1995.) Substitution of parties Q. Plaintiff filed a petition for mandamus to compel the then municipal mayor to issue to him the municipal license and permit to resume operations of his cockpit. Pending the action, the mayor was dismissed from office. After trial, the court issued the writ of mandamus and adjudged defendant mayor liable for damages. In due course, the sheriff levied execution of the judgment for damages on defendant mayor's properties. Is the levy valid? (10%) [1997 Midterms IV] A. The levy is void because the judgment is void and without any legal effect. The judgment is void because there was no substitution, pursuant to Rule 18, Section 3, of defendant mayor and the filing of a supplemental pleading showing that defendant mayor's successor had adopted or continued the defendant mayor's policy to deny the cockpit license. (Galvez v CA, GR 119193, 29 March 1996.) New/additional parties: impleader Q. What is the effective recourse of the defendant where the plaintiff did not implead an indispensable party? (1993 Midterm Exam IIb)

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A. Defendant should move for an order directing the plaintiff to amend its complaint by impleading the indispensable party. Upon plaintiff's failure or refusal to obey this order, the action should be dismissed. (Rule 17, Sec. 3; National Development Co. v. Court of Appeals, 211 SCRA 422 [1992]). Q. Action by P against D in the RTC for a sum of money wherein D impleaded X as a thirdparty defendant on the claim that X is liable to plaintiff by way of subrogation to D's liability. Judgment was rendered ordering D to pay P and X to indemnify D for this payment. X timely appealed the judgment to the CA, but did not appeal and so P sued out a writ of execution against him after the lapse of the 15-day period for D to appeal. Is the writ of execution valid? (5%) [1999 Midterm X] A. Yes. The third-party complaint is independent of and distinct from the complaint, but is allowed in the original and principal case to avoid circuitry of action and unnecessary proliferation of lawsuits and to dispose expeditiously in one litigation the entire subject matter arising from one particular set of facts. An appeal by any party from such judgment does not inure to the benefit of the other party who has not appealed nor can it be deemed to be an appeal of such other party from the judgment against him. (Firestone Tire & Rubber Co. of the Phils. vs. Tempongko, 27SCRA 418 [1969]) New/additional parties: intervention Q. P sues your client D, to recover possession of a parcel of land. D tells you that his wife acquired this parcel of land from its former owner, X. Is there a way by which D may cause X to be impleaded? (1996 Midterm Exam Ia) A. Yes. D should have his wife intervene in the case and once admitted as intervenor, the wife should move to be allowed to a file a third-party complaint against X. D himself cannot file this third-party complaint against X because he has no privity with X. (Morada v. Caluag, 5 SCRA 1128 [1962]) Q P sued A, B, C and D to recover from each of them different pieces of jewelry which were allegedly delivered to each of them as a commission agent of the plaintiff. The jewelries were delivered on different dates. If you were counsel for all the defendants, what would be your proper recourse? A. I would ask that all but one defendant be dropped from the complaint because the defendants are mis-joined. The plaintiff's claim against each of the defendants did not arise from the same transaction or series of transactions. (Rule 3, sec 6). Each claim therefore is a separate cause of action. (Gacula v Martinez, 88 Phil 142) Q. What is defendant's recourse against a complaint which fails to include an indispensable party? A. He should move for an order directing the plaintiff to amend his complaint to include the indispensable party, and if plaintiff fails or refuses to obey this order, or the indispensable party cannot be sued, then defendant should move to dismiss the complaint under Rule 17, sec 3. (See Corez v Avila, 101 Phgil 205 [1957])

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REMEDIAL LAW REVIEW Past exams Civil Procedure Prof. Antonio R. Bautista

V. SUMMONS
Q: Action in RTC- Manila against d to collect a sum of money. D is a Filipino now permanently residing in the United States but comes to the Philippines during the Christmas holidays. How may the summons in this action be served on him? (5%) A: Only personally, when he is in the Philippines even temporarily only. Extraterritorial service is not permissible since the action is inpersonam (Rule 14, 15) and D is not a Philippine Resident (Id. Sec. 16) Q: Action in RTC- Manila against d to collect a sum of money. D is a Filipino now permanently residing in the United States but comes to the Philippines during the Christmas holidays. How may the summons in this action be served on him? (5%) A: Only personally, when he is in the Philippines even temporarily only. Extraterritorial service is not permissible since the action is inpersonam (Rule 14, 15) and D is not a Philippine Resident (Id. Sec. 16) Service of summons Q. D borrowed US $10,000 from the Guam Branch of a Philippine bank and executed therefore in Agana, Guam a promissory note. Upon D's default on the note, may the Philippine bank sue him in then Philippines to collect on this note? (1996 Midterm Exam IVb) A. Yes. D's suability before our courts depends on the latter's ability to acquire jurisdiction over his person or his property. In this case, the bank may file a simple collection case before a Philippine court and have the summons served on D should he be found in the Philippines; but here the filing of the suit should be timed to coincide with the time that D is expected in this country, also the complaint may be dismissed for non-prosecutions if the summons is not served seasonably enough. But the better alternative would be to have the plaintiff file an application for preliminary attachment on the real property of D in the Philippines, because in such case, D's non-residence will be a sufficient and independent ground for the issuance of an attachment (Rule 57, Sec. 1[f]) and the court may then acquire jurisdiction over his person by service of summons by publication (Rule 14, Sec. 17).

VI. PLEADINGS
ANSWER Q. An action on a promissory note by P against D Company, copy of the note being attached to the complaint as an annex. D Company answered by denying liability and

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alleging that the person who signed the note had no authority to do so, but this answer was not verified. May D Company prove its defense? (5%) A. No. By failing to make a verified denial of the genuineness and due execution of the note, D Company had admitted that the party whose signature appears thereon had indeed signed the note and that he had authority to sign it. [Imperial Textile Mills Inc. v. CA; 183 SCRA 584 (1990)] Q. May the trial court extend the period for filing an answer after this period had already expired? (5%) A. Yes, indirectly. See R11S7(2), now R11S11.

Q: Suppose that a complaint is dismissed for failure to attach thereto a sworn certification against forum-shopping, can the omission be cured by an amendment of the complaint? (5%) A: No. (rule 7, Sec. 5, 2nd par.) Q: When is a cross-claim permissive? (5%) A: Perhaps never. (See Rule 6, sec. 8; Rule 9, Sec. 2) Q: P sues D for P300,000.00 in RTC-Manila. Before D could answer, P amends his complaint to allege an alternative cause of action for specific performance. D moves to dismiss the complaint. Ruling? (10%) A: Motion granted. P can amend the complaint once as a matter of right at any time before answer. The fact that the original complaint did not plead a cause of action within the RTC's jurisdiction is of no moment. While the amendment has the effect of curing this defect, this is okay because no leave of court is sought so that there is no conceptual contradiction as no affirmative action is sought from the court. But while an action for specific performance is within the RTC's jurisdiction since it is not capable of pecuniary estimation, the alternative cause of action for P3000,000.00 puts such an estimate and brings the case within the MTC's jurisdiction because of the amount involved. (See Cruz v. Tan, 87 Phil. 627 [1950]) The complaint Q. May P properly and correctly file a complaint in the RTC against D to recover P1 Million based on a promissory note and another P1 Million based on tortious interference with contract, and for foreclosure of a real estate mortgage to secure a loan of P5 Million? (5%) [1999 Midterm XII] A. While causes of action may be joined against a common opposing party whether of the same nature or character or whether they arise out of the same contract or relation or whether they are for sums of money, yet none of the causes of action must be a special civil action or action governed by special rules otherwise there would be a misjoinder of causes of action. Here, the cause of action for mortgage foreclosure is misjoined because it is a special civil action. (Rule 2, Sec. 5) Q. Can the court award the plaintiff damages prayed for in his complaint to be in an "amount as will be proved at the trial"? (10%) [1996 Midterms II]

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A. Generally, no. It is required for purposes of computation of the docketing fees payable, that the complaint specify the amount of damages being prayed for not only in its body but also in its prayer. The court does not acquire jurisdiction over an unspecified claim for damages, except in respect to damages arising after the filing of the complaint or similar pleading the amount of which damages need not be specified but to which the additional filing fee shall be a lien on the judgment. (Original Dev't. & Const. Corp. v CA, 202 SCRA 753). The answer Q. May lack of jurisdiction over the person be pleaded as an affirmative defense and a preliminary hearing had thereon? (10%) [1996 Midterms VIII] A. Yes. Any ground for dismissal under Rule 16, except improper venue, may be pleaded as an affirmative defense and a preliminary hearing had thereon. A defendant is allowed to put up his own defenses alternatively or even hypothetically. Defenses and objections not pleaded either in a motion to dismiss or an answer, except for the failure to state a cause of action, are deemed waived. Therefore, the defendant is enjoined to set up, along with his objections to the court's jurisdiction over his person, all other possible defenses. (La Naval Drug Corp. v CA, 236 SCRA 78). Counterclaim and cross-claim Q. L sued C to annul a deed of sale of a lot and for L to be declared the owner thereof. Judgment went to C, and this judgment became final. Thereafter, C filed an action against L, A and B for damages for the use and occupancy of the same lot, A and B being L's transferees of the house built on the lot, this house having been transferred by L to A and B even before the filing of the annulment action. L, A and B moved to dismiss C's complaint on the ground that it is barred by the judgment in the first action. Resolve the motion to dismiss. (1994 Midterm Exam IX) A. Motion to dismiss granted. The scone motion is barred by the "compulsory counterclaim rule" (Rule (, Section 4) because the complaint for damages is necessarily connected with the transaction subject matter of the first action. Had the same been annulled in the first action then C would have no right to collect rents from the occupants of the lot and house, while if the court sustained the validity of the same (as it did) then C would have had such right. The addition of A and B as additional defendants does not detract form the res judicata effect of the judgment in the first case because these parties should have been impleaded by C on his compulsory counterclaim in the first auction. See Carpena v. Manalo, 1 SCAR 1060 (1981) and my annotation in 3 PHILAJUR 588 at 601-602 (1978). Q. In an action in the RTC by the lessee against the lessor to fix a period for his lease, may the RTC entertain the defendant lessor's counterclaim for the ejectment of plaintiff lessee on the ground of the expiry of the stipulated term in the lease contract? (5%) [1999 Midterm XI] A. No, this is not a compulsory counterclaim because it is not within the jurisdiction of the RTC as to its nature. (Rule 6, Sec. 7)

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Q. Action on a fire policy against an insurance company which issued it. The defendant insurer filed a third-party complaint against a re-insurer which set up in his answer the defense alleged by the defendant insurer that the loss was caused by the willful act of connivance of the plaintiff insured. May the third-party defendant re-insurer counterclaim against the plaintiff? [1999 UP Barops III] A. Yes, provided that the counterclaim be in respect to the plaintiff's claim against the third-party plaintiff. (Rule 6, sec. 13)

Q. The MTC dismissed, on defendant's motion, a complaint for unlawful detainer grounded on termination of a month-to-month lease, for lack of jurisdiction over the subject matter due to lack of prior demand to vacate, and awarded in favor of the defendant the amount of P 5,000.00 as attorney's fees. Is this MTC decision vulnerable to attack on certiorari? (10%) [1996 Midterms VII] A. Yes. Since the MTC had no jurisdiction over the principal action for unlawful detainer, then it had no jurisdiction over the compulsory counterclaim for attorney's fees either. Defendant's claim for attorney's fees is in the nature of a compulsory counterclaim, and a compulsory counterclaim cannot remain pending for independent adjudication by the court. A compulsory counterclaim is merely auxiliary to the proceeding in the original suit and derives its jurisdictional support from this original suit. Besides, it was defendant himself who caused the dismissal of his counterclaim by moving for the dismissal of the complaint. (Dalisay v Marasigan, GR No. 115088, 20 June 1996. Amended and supplemental pleadings Q. A sued B in RTC-Manila for breach of contract. B filed a motion to dismiss on the ground that the complaint fails to state a cause of action. Before the motion to dismiss was resolved, A filed an amended complaint. The RTC did not admit amended complaint, ruling that A failed to obtain leave of court. A's motion for reconsideration was denied; so, he filed a petition for certiorari in the Court of Appeals. B moves to dismiss the petition contending that the CA has no jurisdiction to issue certiorari, since only a question of law is involved. Is the RTC judge correct? Does the CA have jurisdiction to issue certiorari? Decide. (1993 Midterm Exam V) A. No answer Q. Husband filed a complaint in the RTC against his wife praying for custody of their children and that their support be determined, the complaint alleging that defendant-wife attempted to kill plaintiff-husband by kicking him twice on his genital. After answer, plaintiff was allowed by the trial court to amend his complaint by alleging that defendant attempted to kill him by placing poison on his food and praying for legal separation. Was the amendment properly allowed? (10%) [1996 Midterms IV] A. There was no evidence that the amendment was made with intent to delay the action or that the cause of action was substantially altered. While the reliefs sought are different, as the original complaint prays for custody and support while the amended complaint prays for legal separation, what determines the nature and character of an action is not the prayer but the essential basic allegations of fact as set forth in the complaint. There is no substantial alteration of the cause of action because defendant is not required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint. Even granting that the causes of

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action under the original and amended complains are different, still the amended complaint should be admitted because such causes of action, as legal separation, custody and support arose from the marital relationship between the parties, and a party is allowed to state in one pleading as many causes of action as may arise out of the same relation between the parties. (Anastacio v Anastacio, 92 OG 2746.) Formal requirement of pleadings Q. May a complaint which had been dismissed for failure to attach a certification against forum shopping be re-filed? (5%) [2000 Finals III] A. Yes, unless the dismissal order states that it is with prejudice. (Rule 7, Sec 5, 2nd par) Detail in pleading Q. P company, a foreign insurance company, sued in the RTC-Manila and alleged that it is duly authorized to do business in the Philippines, but defendant in his answer denied this allegation as to P's capacity to sue for lack of knowledge or information. What is the effect of defendant's denial? [1999 UP Barops X] A. None. The denial is ineffective for being a general denial and therefore is inadequate to attack p's capacity to sue. (Rule 8, Sec. 4, 2nd sent.) Filing and service of pleadings & other papers Q. In an action by P against D in the RTC for recovery of possession and damages, D filed an answer with counterclaims but furnished counsel for P a copy of this answer by registered mail and his answer did not contain any written explanation as to why service was not made personally upon P. So, P filed a motion to expunge the answer and to declare D in default on the ground that D did not observe the mandate requiring personal service or an explanation of its absence. Rule on D's motion. [1999 UP Barops VI] A. Motion granted. Under Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Therefore, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service was not practicable. The absence of such explanation is a violation of the rule and may be cause to consider the paper as not filed. (Solar Team Entertainment, Inc. vs. Ricafort, G.R. No. 132007, August 5, 1998 [1st Div]) Q. In an unlawful detainer suit by P against D, the MTC Malolos rendered judgment ordering D to vacate the premises and to surrender their possession to P. Thereafter, a writ of execution of the judgment and a writ of demolition, were issued. During the grace period allowed D under the writ of demolition, D filed a separate action in RTC-Bulacan against P and the provincial sheriff for specific performance on the ground that D is entitled to receive the value of the improvements on the lot subject of the ejectment case because he was a builder in good faith. The RTC Bulacan issued a TRO and then later a preliminary injunction, enjoining the enforcement of MTC Malolos' writ of execution and order of demolition. Did the RTC Malolos act correctly? (10%)

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A. No. This claim for compensation for improvements is a compulsory counterclaim under R9S4 and therefore, D should have raised it in the ejectment case even only alternatively because it is inconsistent with his claim of ownership. [Cojuanco v. Villegas 184 SCRA 374 (1990)] Q. May a court grant relief greater than that asked for in the prayer of the litigant's pleadings? (5%) A. See R9S3. Q In an action in the RTC by the lessee against the lessor to fix a period for his lease, may the RTC entertain the defendant lessor's counterclaim for the ejectment of plaintiff lessee on the ground of the expiry of the stipulated term in the lease contract. A. No, this is not a compulsory counterclaim because it is not within the jurisdiction of the RTC as to its nature. (rule 6, sec 7) Q. May P properly and correctly file a complaint in the RTC against D to recover P1 million based on a promissory note and another P1 million based on tortious interference with contract, and for foreclosure of a real estate mortgage to secure a loan of P5 million? A. While causes of action may be joined against a common opposing party whether of the same nature or character or whether they arise out of the same contact or relation or whether they are for sums of money, yet none of the causes of action must be a special civil action or action governed by speciai rules otherwise, there would be a misjoinder of causes of action. Here, the cause of action for mortgage foreclosure is misjoined because it is a special civil action. (Rule 2, sec 5).

VII. MOTIONS VIII. OBJECTIONS TO PLEADINGS


Q. P sued D and E for reconveyance, with damages, of a parcel of land. After filing his answer, E served on P written interrogatories. Despite the lapse of 1/2 years, the written interrogatories remained unanswered. So on Es MTD, the court issued an order directing P to answer the written interrogatories within 10 days from receipt of the order. This order having gone unheeded, the court issued another order dismissing the complaint against E. After the order of dismissal had become final, P filed a motion for admission of amended complaint in which E is again impleaded as a defendant on the same cause of action alleged in the original complain, plus and additional cause of action impugning the order of dismissal as being null and void for allegedly having been obtained through fraud. E moves to dismiss amended complaint on the ground of res judicata. Rule on Es MTD. (10%) A. MTD granted. Dismissal was in effect for failure to prosecute and therefore has the effect of an adjudication on the merits under R17S3. Also, it is arguable that the dismissal is under R29S5 and therefore an adjudication on the merits. The added cause of action in the amended complaint is improper because such an alleged cause of action can be raised only in a motion for new trial or in a R38 petition for relief. [See Arellano v. CFI of Sorsogon; 65 SCRA 46 (1975)]

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Motion to dismiss: want of jurisdiction

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Q. P sued D in the RTC to recover the sum of P20,000.00 plus interest. D answered alleging payment by set-off. After pre-trial but before the case could actually be tried, D filed a motion to dismiss on the ground that the RTC has no jurisdiction over the case. Instead of filing an opposition to D's motion to dismiss, P filed a motion for leave to amend his complaint by including an allegation of a cause of action for P5,000.00 attorney's fees. If you were the judge, how would you resolve D's motion to dismiss and P's motion for admission of his amended complaint? (1993 Midterm Exam I) A. I would grant D's motion to dismiss and deny P's motion to admit amended complaint. (a) A motion to dismiss on the ground of lack of jurisdiction over the subject matter may be filed at any stage of the action. (See Rule 9, Sec. 2); (b) D already having answered, P must have to ask for leave of court to amend his complaint (Rule 10, Secs. 2 and 3). While P's proposed amendment may not alter his cause of action, still the amendment is not allowable because it would have the effect of conferring jurisdiction upon the court. Since the amount alleged in the original complaint does not exceed P20,000.00 excluding interest, the RTC did not acquire jurisdiction over the case, and so the RTC has neither the power nor the jurisdiction to act on the motion for the admission of the amended complaint, much less to allow such amendment, since the court must first acquire jurisdiction over the case in order to act thereon. (see Rosario v. Carangdang, 96 Phil. 845 [1955]). *** take note of the change in jurisdictional amounts Q: Action by P against D in the RTC for damages allegedly suffered by P while a paying passenger in a vehicle owned and driven by D. During the pre-trial, the parties entered into such a comprehensive stipulation of facts that the judge was moved to decide the case on summary judgment. Proper? (5%) A: No. A hearing, on motion duly noticed, is required by Rule 34. (Based on Godala v. Cruz, 88 O.G. 7899 [CA; 1989]). Motion to dismiss: litis pendentia Q. P filed a complaint in the housing and Land Use Regulatory Board (HLURB) to compel D to release and deliver a condominium certificate of title and to desist from collecting fees for community benefit and to release all such fees collected and for damages. During the pendency of the HLURB case, D filed a complaint against P in the RTC for the collection of fees for administrative and maintenance expenses, common comfort, security and sanitation. P then filed a motion to dismiss the RTC case on the ground of pendency of a similar case before the HLURB. Resolve the motion to dismiss. (1993 Midterm Exam IIa) A. Motion to dismiss denied. Litis pendentia as a ground for dismissal of an action refers to another pending action in a court of justice, excluding an administrative agency. (Puzon Industrial Dev't. Corp. v. Magtolis, CA 89 O.G. p. 2487 [1989]). Q. A is the owner of a parcel of land pending registration in the RTC of Rizal. He permitted B, a family friend, to construct a small house on the land and to live therein for a period of two years only. The two-year period expired on 1 may 1994, but B failed and refused to vacate the land. Hence, on 15 June 1994, A filed an action against in the RTC of Rizal for

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the recovery of possession of the land. B filed a motion to dismiss the case on the ground that there is a pending land registration case involving the said property. Is the motion well founded? (1994 Midterm Exam Ia) A. No lis pendens because no identity of causes of action or rights asserted and reliefs prayed for, so that judgment which may be rendered in one case would not necessarily result in res judicata in the other case. An action for recovery of possession is distinct and different from an action for recovery of title or ownership. Moreover, an RTC, acting as a land registration court, has a limited and special jurisdiction confined to the determination of the legality and propriety of the issue of title. It has no power to entertain issues of rightful possession and claims for damages emanating from ownership. (Medina and Bernal v. Valdellon, 63 SCRA 276 [1975]). Q. A lessee filed an action in the RTC against his lessor praying for a decree fixing the period of his lease. Before pleading to the complaint, the lessor filed his own complaint for unlawful detainer in the MTC seeking the lessee's ejectment from the premises on the ground of expiry of the term of the lease contract. The lessee moved to dismiss the unlawful detainer complaint on the ground of litis pendentia. Rule on the motion. [1996 Finals II] A. Motion to dismiss denied. Both cases involve the common issue of the lessee's right to possession of the premises, and this issue is better resolved in an unlawful detainer action. What, then, ought to be dismissed is the RTC action and not the unlawful detainer case. The fact that the unlawful detainer action was filed later that the RTC action is of no moment, because section 1(e) of Rule 16 requires only another pending action - not a prior pending action. (Teodoro vs. Mirasol, 99 Phil. 150 [1956]). Q. P filed a complaint in the RTC-Isabela against D for the recovery of an alleged overpayment for a rice thresher. Later, but before the summons in the Isabela case could be served on D, D filed in RTC-Manila an action against P for collection of the alleged balance on the purchase price of the same rice thresher. P moved to dismiss the Manila case on the ground of litis pendentia. Rule on the motion. [1996 Finals III] A. Motion to dismiss granted. All the requisites for litis pendentia are present. The Isabela action was already a pending action at the time of the filing of the Manila action even though the summons had not yet been served. Reason: A civil action is commenced by the mere filing of a complaint. (Rule 2, sec. 6; Salacup vs. Maddela, Jr., 91 SCRA 275 [1971]). Motion to dismiss: res judicata Q. Discreet Bank extrajudicially foreclosed P's real estate mortgage and itself purchased the property at the foreclosure sale. After the expiration of the one-year redemption period without any redemption being effected, Discreet Bank filed with the Registry of Deeds an affidavit of consolidation of ownership and, consequently, was issued a new TCT. Thereafter, Discreet Bank filed a petition for the issuance of a writ of possession with the RTC and this petition, docketed in the land registration case, was opposed by P and, after a full-dress hearing, the RTC granted the petition and ordered the issuance of a writ of possession. After the decision in this case became final, P filed a complaint against Discreet Bank to set aside the sale of the mortgaged property and cancel the writ of possession, P reiterating the grounds raised in the opposition to the petition for the issuance of writ of possession. Discreet Bank moved to dismiss this caser on the ground of res judicata, but this motion was opposed by P on the ground that the decision in the

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writ-of-possession case cannot constitute res judicata because P could not present his objections in that proceeding, the issuance of a writ of possession being purely ministerial with the court and the present action being the correct one to attack the foreclosure sale. The court dismissed this second case, not on the ground of res judicata but for lack of jurisdiction, the court reasoning that P's attack at the foreclosure sale tantamounts to an attack at a final order of the RTC and therefore is within the exclusive jurisdiction of the CA. Several months later, P filed another complaint against Discreet Bank for the annulment of the foreclosure sale and reconveyance of the mortgaged property. As before, Discreet Bank moved to dismiss on the ground of res judicata, arguing that the issues raised in this new case had been resolved in the writ-of-possession case and in the second case foe the annulment of the foreclosure sale, but this motion was opposed by P on the ground that the dismissal of the second case was not an adjudication on the merits, the dismissal being for lack of jurisdiction and therefore cannot constitute res judicata. (a) Was the ruling on the first motion to dismiss correct? (1993 Midterm Exam IIIa) A. While the hearing in the writ-of-possession case was supposed to be summary , a full-dress hearing was actually conducted and P submitted himself to it. P cannot now therefore be heard to challenge the jurisdiction of the court and to escape or repudiate the effects of its judgment. So, the order in the writ-of-possession case bars the second case on res judicata grounds. (b) Rule on the motion to dismiss the third case. (1993 Midterm Exam IIIb) A. In dismissing the second case for lack of jurisdiction, the court recognized the order of dismissal in the writ-of-possession case as a final one which it could not annul, since the authority to annul such orders pertains to the CA only. This was, by itself, an adjudication on the merits of P's claim because it declared him no longer entitled to the right upon which his claim is based. A judgment is deemed to be rendered upon the merits when it amounts to a declaration of the law as to the respective rights and duties of the parties, based upon the ultimate facts or state of facts disclosed by the pleadings and evidence, and upon which the right of recovery depends, irrespective of formal, technical or dilatory objections or contentions. (De Ramos v. CA, 213 SCRA 207 [1992]) Q. Levy of execution of money judgment in Civil Case No. 12345 was made on property of D and at the execution sale, this property was sold to plaintiff P. Title was consolidated in P after the lapse of the redemption period. Citing what is alleged to be equitable grounds, however, D filed a motion in the said Civil Case No. 12345 that he be allowed to redeem the property or his mother to purchase it; this motion was denied. D then filed another action in the RTC, Civil Case No. 67890, to recover the same property on the ground of promissory estoppel. If you were the counsel of P, what step would you take in Civil Case No. 67890? (1994 Midterm Exam VII) A. I would move to dismiss Civil Case No. 67890 on the ground of res judicata. Both cases involve the same cause of action, the parties are the same, and the addition of D's mother in Civil Case No. 12345 does not militate against the identity of parties between the two cases because the mother represents the same interest as D. (Santos v. CA, 226 SCRA 630 <3rd Div., 1993>) Q. P sued D in the MTC for ejectment on the ground of non-payment of rentals. After trial on the merits, judgment was rendered dismissing the complaint upon the finding that D has been paying his rentals on time. Thereafter, P demanded an increase in D's rentals, and upon D's failure to pay the increased rentals, P promptly filed a complaint against D in the RTC praying for his eviction and for damages; the RTC dismissed this complaint for lack of jurisdiction. With the RTC dismissal, P filed an action for unlawful detainer against

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D in the MTYC based on the same allegations as his complaint in the RTC. D now moves to dismiss this second unlawful detainer complaint on the ground that it is barred by prior judgment. Rule on the motion to dismiss. (1994 Midterm Exam VIIIb) A. Motion to dismiss denied. The second ejectment action is not barred by the decision in the first ejectment case; no identity of causes of action because the ground for ejectment in the second action is for non-payment of different rentals. Nor is the RTC judgment a bar because it is not on the merits. Viray v. Marinas, 49 SCRA 44 (1973). Q. H, husband, filed an action against his wife, W, to have their marriage declared void due to the latter's alleged psychological incapacity to contract marriage. After trial, the action was dismissed. Then, H filed another action against W to have the same marriage declared void for alleged absence of a marriage license. Can the second action prosper over timely opposition? (5%) [2000 Finals IV] A. Depends on whether the ground urged by H in the second action was already known to and could have been raised by H in the first action. (See Rule 39, Sec. 47 [b]): "or as to any matter that could have been raised in relation thereto.") Q. X Bus Company purchased 10 buses from Y Motor Co. covered with promissory notes and deeds of chattel mortgage. Then, Y assigned these notes and deeds of chattel mortgage to A Bank and then subsequently assigned the same notes and chattel mortgages to B Finance Co. Then, when X defaulted on the notes, Y, A and B demanded payment. In view of their conflicting claims against it, X filed in the RTC an interpleader action against Y, A and B praying that the court determine which among them is entitled to payment on the notes. Three days later, B filed an action for replevin with damages against X and Y praying that Y be declared liable to pay B's claim against X in the event that B is not able to recover thereon against X. Defendants moved to dismiss the replevin complaint on the ground of the pendency of the interpleader action. Rule on the motion to dismiss. (5%) [1999 Midterm IX] A. Motion to dismiss granted. There is identity of parties between the interpleader case and replevin case. In the interpleader case, the plaintiff is X and the defendants are Y, A and B, whereas in the replevin case, the plaintiff is B and the defendants are X and Y. In both cases therefore, B, X and Y are parties with the addition of A, but this addition does not retract from the requisite identity. In both cases, the rights spring from the deeds of assignment executed by Y in favor of A and B, covering the same debts of X owing to Y. The identity in both cases is such that any judgment that may be rendered in the interpleader case would amount to res judicata in the replevin case; if judgment in the interpleader case is that the assignment to A would prevail over the assignment to B, such judgment would be binding on the replevin case and undercut B's cause of action in the replevin case. (Sanpiro Finance Corp. vs. IAC, 220 SCRA___ [3rd Div., 1993]) Q. In the belief that the decedent died intestate, X, Y and Z, his nephews, initiated in the RTC an intestate proceeding wherein they obtained an order approving their extrajudicial partition of the estate. But later, X filed a motion to annul the order of approval on the ground that a will of the decedent had been discovered and therein sought its probate. The probate court denied X's motion on its finding that the alleged will had been destroyed and revoked by the decedent. Two months later, X filed a petition in another RTC for probate of the alleged will, but Y and Z moved to dismiss the petition on the ground that it is barred by the judgment of the intestate court finding the alleged will to have been destroyed and revoked. Rule on the motion to dismiss. (10%) [1995 Finals I]

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A. Motion to dismiss denied. The intestate court had no jurisdiction to entertain the probate of the alleged will in the intestate proceeding and therefore it could not have made a finding that the alleged will had been destroyed and revoked (Casiano v Maloto, 79 SCRA). So, the intestate court not having jurisdiction to make this finding, the petition for probate of the alleged will cannot possibly be barred by res judicata. Q. Enumerate all the ways by which a civil case in our courts may be terminated, with binding and res judicata effect, without a full-dress evidentiary trial where the parties are enabled to present their respective testimonial and other evidence. (10%) [1997 Midterms X] A. 1. judgment on the pleadings 2. summary judgment 3. dismissal on motion of the defendant 4. voluntary dismissal by the plaintiff 5. dismissal for plaintiff's failure to prosecute 6. judgment by default 7. judgment on confession or on compromise 8. judgment on a complete stipulation of facts. Q. P sued A and B to recover a parcel of land. Judgment went for A and B. Then, A sued B to recover the same parcel. Is this second action barred by res judicata? (5%) [1997 Midterms VIIIa] A. It depends. If A's claim against B was already existing at the time of the first action and was a compulsory counterclaim in that case, then the second action is barred under Rule 9, Sec. 4. Otherwise, there is no estoppel because A and B were no adverse parties in the first case and their relative rights and liabilities as co-defendants inter-se were not brought in issue. (Valdez v Mendoza, 89 Phil. 83) Motion to dismiss: improper venue Q. P, a resident of Manila, sued D, also a resident of Manila, in the RTC-QC to collect P500,000 based on a promissory note. The RTC-QC dismissed the action motu proprio on the ground that the parties, being both residents of Manila, it has no jurisdiction over the case. Is the dismissal correct? (5%) [1999 Midterm XV] A. No, the matter of residence is one of venue only and not of jurisdiction. The court cannot motu proprio dismiss an action for improper venue, a motion being required for that purpose. Venue touches more upon the convenience of the parties rather than upon the substance or merits of the case; it involves no more and no less than a personal privilege which may be lost by failure to assert it seasonably. (See Guzman vs. Batario, 95 O.G. pp. 3477 [CA; 1994]) Q. May a court grant relief greater than that ask for in the prayer of the litigants pleading? A. See R9S3.

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In an action in the RTC by the lessee against the lessor to fix a period for his lease, may the RTC entlthough action is for annulment of the contract, the prime objective is to recover the land. Venue should be Bulacan. (Gavieroz v. Sanchez, 94 Phil 9760) R4.1 Motion to dismiss: want of jurisdiction Q. Action by P against D in the RTC for a sum of money was sought to be dismissed by D on the ground of prescription. The motion to dismiss was denied and D brought a special civil action for certiorari in the CA against the order of denial of his motion to dismiss. The CA dismissed the petition. Then, D filed his answer, after which trial was held and judgment rendered against D. On appeal from this judgment to the CA, D filed a Motion to Dismiss the complaint on the ground of lack of jurisdiction, alleging that P had not paid the appropriate docket fees in the trial court. Rule on the motion to dismiss. (5%) [1999 Midterm V] A. Motion to dismiss denied. Although the payment of the proper docket fees is a jurisdictional requirement, the TC may allow the plaintiff in an action to pay these fees within a reasonable time before the expiry of the applicable prescriptive or reglementary period. But if the plaintiff fails to comply with this requirement, defendant should timely raise the issue of jurisdiction or else he would be considered in estoppel. Here, D filed an answer and participated in the proceedings before the TC. It was only after judgment was rendered against him that he raised the issue on jurisdiction. While the lack of jurisdiction ___________________may be raised at any stage of an action, the party raising such question may be estopped if he has actively taken part in the very proceedings which he questions and he only objects to the court's jurisdiction because the judgment or decision consequently rendered is adverse to him. (National Steel Corp.vs. CA, G.R. No. 123215, Feb. 2, 1999 [2nd Div.]) Motion to dismiss: insufficient allegations Q. The complaint simply alleges that D is legally liable to P for damages in a named amount. D moves to dismiss this complaint for failure to state a cause of action. Resolve the motion to dismiss. [1999 UP Barops VIII] A. Granted. The operative or constitutive facts making up the pleaded cause of action are not stated. The only matters pleaded are conclusions of law. Motion to dismiss: non-compliance with a condition precedent for filing Q. W sued her husband (H) and X Company to annul a transfer of her paraphernal lot by H to X Company on the claim that the transfer was ultra vires a power of attorney given by W to H. H moved to dismiss on the ground that her complaint did not allege prior efforts towards a compromise. Resolve the motion to dismiss. [1996 Finals I] A. Motion to dismiss denied. The requirement of prior efforts to a compromise does not apply where there is a stranger to the action. (Magbaleta vs. Gonong, 76 SCRA 511 [1977]). Motion for judgment on the pleadings Motion for summary judgment Q. Where in an action by P against D to recover P3 Million damages for physical injuries allegedly suffered in a vehicular collision, D files an answer which contains nothing but

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general denials, can P have judgment on the pleadings or summary judgment? [1999 Midterm XVIII]

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(5%)

A. No judgment on the pleadings because of failure to make a specific denial does not amount to an admission of the averments as to the amount of unliquidated damages (Rule 8, Sec. 11) and therefore there is a triable issue of fact (Rule 34, Sec. 1). But summary judgment may be granted if, after notice and hearing, the court should find, on the basis of the pleadings, supporting affidavits, depositions and admissions on file that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Rule 35, Sec. 3) Q. What is plaintiff's best procedural recourse against an answer which pleads no more than negative pregnants? (5%) [1997 Midterms IXa] A. Move for judgment on the pleadings. Q. P sued D to quiet title to a parcel of land claiming to be the owner of the land and to have inherited it from his father. On the other hand, D answered by asserting ownership over the same land in himself by claiming to have inherited it from his own father, the alleged owner. P filed a reply to which was attached a document entitled "Acknowledgment of Ownership" duly signed by D's father and conceding ownership of the land to P's father. After pre-trial, the court rendered summary judgment in P's favor on the ground that the genuineness and due execution of the document annexed to P's reply was not denied by D under oath. Is the summary judgment correct? (1996 Midterm Exam VIII) A. No. In the first place, there was no motion for summary judgment. In the second place, the issue of ownership is a genuine factual issue which has to be resolved by a trial on the merits. There is no admission of the genuineness and due execution of the Acknowledgement of Ownership because this document was signed by D's father and not by D himself and so there was no need for D to deny it under oath. (Cadirao v. Estenzo, 132 SCRA 83 [Second Division, 1984]) (Motion to dismiss: want of jurisdiction) Q. P sued D in the RTC to recover the sum of P20,000.00 plus interest. D answered alleging payment by set-off. After pre-trial but before the case could actually be tried, D filed a motion to dismiss on the ground that the RTC has no jurisdiction over the case. Instead of filing an opposition to D's motion to dismiss, P filed a motion for leave to amend his complaint by including an allegation of a cause of action for P5,000.00 attorney's fees. If you were the judge, how would you resolve D's motion to dismiss and P's motion for admission of his amended complaint? (1993 Midterm Exam I) A. I would grant D's motion to dismiss and deny P's motion to admit amended complaint. (a) A motion to dismiss on the ground of lack of jurisdiction over the subject matter may be filed at any stage of the action. (See Rule 9, Sec. 2); (b) D already having answered, P must have to ask for leave of court to amend his complaint (Rule 10, Secs. 2 and 3). While P's proposed amendment may not alter his cause of action, still the amendment is not allowable because it would have the effect of conferring jurisdiction upon the court. Since the amount alleged in the original complaint does not exceed P20,000.00 excluding interest, the RTC did not acquire jurisdiction over the case, and so the RTC has neither the power nor the jurisdiction to act on the motion for the admission of the amended complaint, much less to allow such amendment, since the court must

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first acquire jurisdiction over the case in order to act thereon. (see Rosario v. Carangdang, 96 Phil. 845 [1955]). *** take note of the change in jurisdictional amounts Q: Action by P against D in the RTC for damages allegedly suffered by P while a paying passenger in a vehicle owned and driven by D. During the pre-trial, the parties entered into such a comprehensive stipulation of facts that the judge was moved to decide the case on summary judgment. Proper? (5%) A: No. A hearing, on motion duly noticed, is required by Rule 34. (Based on Godala v. Cruz, 88 O.G. 7899 [CA; 1989]). Q. In an action by P against D in the RTC for sum of money, P obtained a writ of preliminary attachment on defendant's properties. Soon after, trial commenced, D died, and so his heirs moved for the dismissal of the case. Rule on the dismissal motion. (5%) A. Dismissal motion granted. The principal action to which the attachment is merely ancillary, is a money claim and the attachment cannot survive the dismissal of this principal action. {Regala v. CA, 183 SCRA 595 (1990)] Q. Action by P against D in the RTC for the collection of sums of money covered by two promissory notes which were attached to the complaint. There were allegations in the complaint of partial payments of outstanding balance. D duly filed an answer denying all the material allegations of the complaint because " he does not have knowledge sufficient to constitute a belief as to the truth of the allegations contained therein." Would P be entitled to judgment on the pleadings? (10%) Q. X Bus Co. purchased 10 buses from Y Motor Co. covered with promissory notes and deeds of chattel mortgage. Then, Y assigned these notes and deeds of chattel mortgage to A Bank and then subsequently assigned the same notes and chattel mortgage to B Finance Co. Then, when X defaulted on the notes, Y, A and B demanded payment. In view of their conflicting claims against it, X filed in the RTC an interpleader action against Y, A and B praying that the court determine which among them is entitled to payment on the notes. Three days later, B filed an action for replevin with damages against X and Y praying that Y be declared liable to pay B's claim against X in the event that B is not able to recover thereon against X. Defendants moved to dismiss the replevin complaint on the ground of the pendency of the interpleader action. Rule on the motion to dismiss. A. Motion to dismiss granted. There is identity of parties between the interpleader case an the replevin case. In the interpleader case, the plaintiff is X and the defendants are Y, A and B. In the replevin case, the plaintiff is B and the defendants are X and Y. In both cases, therefore, B, X and Y are parties with the addition of A, but this addition dos not detract from the requisite identity. In both cases, the rights spring from the deeds of assignment executed by Y in favor of A and B, covering the very same debts of X owing to Y. The identity in both cases is such that any judgment that may be rendered in the interpleader case would amount to res judicata in the replevin case; if judgment in the interpleader case is that the assignment to A would prevail over the assignment to B, such judgment would be binding on the replevin case and undercut B's cause of action in the replevin case. (Sanpiro Finance Corp. v IAC, 220 SCRA ... [3rd Div., 1993])

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Q. P, a resident of Manila, sued D, also a resident of Manila, in the RTC-QC to collect P500,000.00 based on a promissory note. The RTC-QC dismissed the action motu proprio on the ground that the parties, being both residents of Manila, it has no jurisdiction over the case. Is the dismissal correct? A. No, the matter of residence is one of venue only and not of jurisdiction. The court cannot motu proprio dismiss an action for improper venue, a motion being required for that purpose. Venue touches more upon the convenience of the parties rather than upon the substance or merits of the case. It involves no more and no less than a personal privilege which may be lost by failure to assert it seasonably. (See Guzman v Batario, 95 O.G. pp 3477 [CA 1994]) Q. Where in an action by P against D to recover P3 Million damages for physical injuries allegedly suffered in a vehicular collision, D files an answer which contains nothing but general denials, can P have judgment on the pleadings or summary judgment? A. No judgment on the pleadings because the failure to make a specific denial does not amount to an admission of the averments as to the amount of unliquidated damges (Rule 8, Sec 11) and therefore, there is a triable issue of fact (Rule 34, Sec 1). But summary judgment may be granted if, after notice and hearing, the court should find, on the basis of the pleadings supporting affidavits, depositions, and admissions on file that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Rule 35, Sec 3)

Q. Where there is an issue as to defendant's liability for exemplary damages, may the court render summary judgment in the case? A. No. Summary judgment is proper only when there is no triable issue of material fact except as to the amount of damages, not as to the liability for damages. (Rule 35, sec 3) Q. How does the defendant raise the issue as to his legal capacity to be sued?

A. By moving to dismiss on the ground that the court has no jurisdiction over his person. (Rule 16, sec 1[a]) Q. P sued D to recover possession and ownership of a parcel of land, but this action was dismissed (after the case was scheduled several times for trial) for P's failure to prosecute. After the dismissal order had become final, P brought another action against D for quieting of title over the same parcel of land. D moved to dismiss this 2nd action on the ground of res judicata. Rule on the motion. Motion to dismiss granted. The dismissal had the effect of an adjudication on the merits, the court not indicating otherwise. (Rule 17, sec 3) The judgment in the first case having become final and there being the requisite identity of parties, subject matter and causes of action, res judicata bars second action. (Panado v Cortez, 94 OG 4 [CA;1993]) Q........basis of the decree, in the interpleader suit, A won the ejectment action. B did not appeal this judgment, but prevailed on his earlier appeal from the interpleader decree an was awarded the rents which has been collected. When B sought to bring an ejectment

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action against A, the latter pleaded res judicata, based on his previous successful ejectment action. Rule on A's invocation of res judicata. A. Res judicata properly applies. The judgment in the ejectment action is final and not open to attack collaterally, but subject to impeachment only through some form of direct attack. The appellate court was limited to a review of the interpleader decree. (Reed v Allen, 26 U.S. 191, 52 S. Ct. 532, 76 L. Ed., 1054 [1932]) Q. Distinguish "law of the case" from res judicata

Q. Defendant moved to dismiss the complaint on the ground that its allegations are "not sufficient to warrant the relief prayed for." Rule on the motion to dismiss. A. 1Motion to dismiss denied. This is not a ground for a motion to dismiss, and the prayer is part of the complaint and, save in case of default, is of no importance. (Camponanes v Bartolomen, 38 Phil 608). Q. P, a resident of Manila, filed a complaint against D, a resident of Iloilo, in the RTCManila. This complaint contains 2 causes of action, one for money, and the other for title to real property in Baguio, both causes of action arising out of the same transaction between the parties. Is there anything procedurally wrong with the complaint? A. There is misjoinder of causes of action, and therefore the court should order their separation so that each cause of action may proceed independently of the other. While joinder of causes of action is allowed, the cause of action for title to property in Baguio...mislaid. (Rule 2, secs 5 [c] and 6)

IX.

DISMISSALS AND DEFAULTS

Q: In his effort to unclog his docket and coming across the record of Special Proceedings No. 801, a guardianship case involving a minor with properties worth more than a million pesos, and finding the said case to have been pending since way back in 1983, after petitioner had presented one witness only, following the appointment of X as guardian, Judge Y of the Nueva Ecija Regional Trial Court dismissed the case for failure to prosecute. Is the order of dismissal valid? (5%) A: Based on 1985 Bar Exam. No. A guardianship case involving a minor continues until the minor has reached the age of majority. It cannot therefore be dismissed for failure to prosecute. Q: Does dismissal of a complaint on plaintiff's motion carry with it the dismissal of defendant's compulsory counterclaim? (5%) A: No, the dismissal "shall be limited to the complaint." (Rule 17, Sec. 2) Q: P sued D to compel the latter to execute a deed of sale to him over a parcel of land the purchase price of which had allegedly already been fully paid by P. After his motion to dismiss on the ground of prescription was denied, D filed his answer in due course and thence trial was held. After trial, judgment was renderd against D who then filed a motion to dismiss for lack of jurisdiction on the ground that P did not pay the correct docket fees which should have been assessed on the basis of the value of the property and damages

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sought and not on the basis of the action as one for specific performance when it was actually for recovery of property. Rule on the motion to dismiss. (10%) A: Motion to dismiss denied. In the first place, the action is really for recovery of real property and not for specific performance since P's primary objective is to regain the ownership and possession of the parcel of land. In the second place, although the payment of the proper docket fees is a jurisdictional requirement, the trial court may allow the plaintiff to pay the same within a reasonable time before the expiration of the applicable prescriptive or reglementary period. In any event, the balance between the appropriate docket fees and the amount actually paid by the plaintiff will always be considered a lien on any judgment P may obtain. Thirdly, the motion to dismiss came too late. D is already estopped from raising the issue of jurisdiction after he had actually taken part in the very proceedings which he questions and after the court had rendered a judgment adverse to him. (See National Steel Corp. vs. Court of Appeals, 302 SCRA 522 [2nd Div.; 1999]) Q: Where the defendant has been declared in default, does the plaintiff still have to present evidence to support his complaint in order for him to obtain judgment thereon? (5%) A: No need. The Court may render judgment granting plaintiff such relief as his pleading may warrant unless in its discretion the court requires him to submit evidence. (Rule 9 Sec. 3) Dismissals Q. Action by P against D in the RTC for recovery of a parcel of land. After joinder of the issues but before actual trial, P filed a manifestation that he is no longer interested in prosecuting his complaint provided, however, the defendant foregoes with his counterclaim. D filed a counter-manifestation agreeing to the dismissal of the complaint and his counter claim. Whereupon, the RTC issued an order dismissing plaintiffs complaint and defendants counterclaim without costs. Ps successor-in-interest now sues to recover the same parcel, and Ds successor-in-interest moves to dismiss this new complaint on the ground of res judicata. If you were the judge, would you grant the motion to dismiss? (1994 Midterm Exam IIa) A. No. Dismissal of the first case was without prejudice. The dismissal having been at plaintiff's instance and not having specified that it was with prejudice, it is one "without prejudice" within the meaning of Sec. 2, Rule 17. Vergara v. Ocumen, 114 SCRA 446 (1982). Q. Relying on a document of sale, P sued D in the RTC to recover ownership of a parcel of land. For failure of P to amend his complaint conformably to an order of the court, the complaint was dismissed. A month thereafter, P re-filed the same complaint in the RTC, and this complaint is now met with a motion to dismiss by D on the ground of res judicata. Resolve the motion to dismiss. (1994 Midterm Exam VIIIa) A. Motion to dismiss granted. The dismissal of the first case was with prejudice pursuant to Section 3, Rule 17. Therefore, all requisites for res judicata are present. (Enriquez v. Boyles, 226 SCRA 666 3rd Div., 1993) Q. May a court dismiss an action for failure of plaintiff's lawyer to appear at the trial despite due notice? (5%) A. No. R17S3 does not authorize a dismissal on the ground of absence of

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counsel. What the court should do is to grant the plaintiff and hour or two to engage the services of a new lawyer. [Dayo v. Dayo; 95 Phil 703 (1954)] Defaults Q. In an action by P against D in the RTC for a sum of money, summons with copy of the complaint was served on D on 22 April 1995. For filing his answer one month later without any previous extension of his time to plead and on P's motion, the RTC declared D in default and thereafter rendered judgment by default against him. After his motion for reconsideration of the default order was denied, D went to the Ca on certiorari and prohibition to challenge the default order. Is D's petition tenable? (1996 Midterm Exam VIb) A. No. Certiorari and prohibition are improper because D has till an appropriate remedy by way of a Rule 38 petitions for relief. (See Lina v. CA, 135 SCRA 637 [1985]) Q. Due to personal injuries suffered in a vehicular collission, P sued D for P300,000 in actual damages, P1 Million in moral damages, P1 Million in exemplary damages and P500,000 for attorney's fees. Assuming that D is declared in default, how much can the court properly award P? (5%) [1999 Midterm XIII] A. Nothing, except probably such attorney's fees as the court may find reasonable. Unliquidated damages cannot be awarded against a party declared in default. (Rule 9, Sec. 3[d]) Q. Due to personal injuries suffered in a vehicular collision, P sued D for P300,000.00 in actual damages, P1 Million in moral damages, P1 Million in exemplary damages and P500,000.00 for attorney's fees. Assuming that D is declared in default, how much can the court properly award P? A. Nothing, except probably such attorney's fees as the court may find reasonable. Unliquidated damages cannot be awarded against a party declared in default. (Rule 9, Sec 3[d]). Q. Do you see any advantage that plaintiff may gain by obtaining a voluntary dismissal of his complaint before the court can act on defendant's motion to dismiss the same complaint for failure to state a cause of action? A. Dismissal for failure to state a cause of action is an adjudication on the merits and has res udicata effect, whereas a voluntary dismissal before answer is not. Besides, the court might award attorney's fees even as it dismisses the case for failure to state cause of action, and plaintiff can avoid this possibility by having the case dismissed. Q. In what instances may a judgment by default be rendered against defendant?

A. (1) When defendant has been declared in default for failure to answer within the reglementary period. (Rule 9, sec 3). (2) When defendant refuses to obey discovery order. (Rule 29, Sec 3[a]) Q. Where the defendant was declared in default despite the fact that he had not been duly summoned, does he still have to demonstrate a "meritorious defense" as a condition precedent to setting aside the default order? A. No more. The default judgment is illegal and the motion to set it aside does not have to be accompanied by an affidavit of merit. (Ponio v IAC, 133 SCRA 577, 2nd Div [1994]) Besides,

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the theory of the requirement that there would be no purpose served by re-opening the judgment if defendant would simply lose on the merits in any event does not apply because had the defendant been notified of the suit, he might have worked out a settlement, or paid the debt, or himself raised enough funds to pay the debt, rather than to suffer its being sold at a sheriff's sale. (See Perlata v Heights Medical Center, Inc, 485 US 80, 108 S. Ct. 896, 99 L2nd 75 [1988])

X.

PROVISIONAL REMEDIES

Q. P sued D in the RTC on a claim for P300,000.00 and obtained a writ of preliminary attachment on D's property. The sheriff attached a Mercedes Benz car found in D's garage. Then, T, a brother of D, filed with the sheriff a third party claim, T swearing in his affidavit of third party claim that his right to the possession of the Mercedes Benz car is derived from the fact that D purchased this car with funds borrowed from him. What action, if any, should the sheriff take on T's third party claim? (5%) A. The sheriff should just ignore T's third-party claim. The affidavit is insufficient under R57S14 to cause discharge of the attachment because the claimant alleged that he was a mere creditor of the attachment debtor. T does not claim to have a title to or a lien on, the attached property which would entitle him to its possession. [See Weadcock v. Ofilada; 84 Phil ___ (1949)] Q: Can a temporary restraining order be issued ex-parte? (5%) A: Yes, but effective for 72 hours only and this is to be issued by the executive judge of a multiple-sala court or the presiding judge of a single-sala court and only if the mater is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. (Rule 58, Sec. 5, 2nd par.) Q: In an action for a sum of money, P obtained a writ of attachment and levied it on D's properties. D filed an answer, in which he asserted prescription of P's alleged cause of action as one of his affirmative defenses and on which he sought a preliminary hearing. D also pleaded a counterclaim where he prayed for damages arising from the attachment which he claimed was maliciously obtained and implemented. After the hearing on D's affirmative defense of prescription the court found that P's cause of action had already prescribed and therefore ordered the dismissal of the complaint as well as D's counterclaim which it said could not remain for independent adjudication. With the dismissal of the counterclaim, can D still recover damages against the attachment bond for illegal attachment? (10%) Preliminary Injunction Q. P bought a house and lot from X, with a balance remaining on the purchase price but which balance was secured by a mortgage on the premises. Then, P sued D, an occupant, in the RTC to recover possession of the house and lot. After due trial, the RTC rendered judgment for P and ordered D to vacate and deliver the premises to P. A writ of execution was, in due course, issued for this judgment. However, before the writ of execution could be carried out, D, claiming to be an assignee of X's mortgage, filed in another RTC a suit for foreclosure of the mortgage, with prayer for preliminary injunction. Should D be granted a preliminary injunction to enjoin his eviction under the judgment in the first case? (1994 Midterm Exam V) A. No. P, as the prevailing party in the first case, is entitled as a matter of right to a writ of execution. Moreover, D does not have a clear right in esse which deserves protection by an

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injunction; he claims the right to foreclose the mortgage by virtue of a supposed assignment to him by X of the balance of the purchase price secured by a mortgage on the premises. D's right to foe close has yet to be established and an injunction is not the instrument to do this. Ulang v. CA, 225 SCRA 637 (2nd Div., 1993). Q. In a petition for relief in the RTC against an RTC money judgment (already final and executory), the RTC issued a preliminary injunction enjoining the execution of the decision. After due hearing, the RTC dismissed the petition for relief, and petitioner appealed the dismissal order to the CA. While the appeal is pending, may the judgment sought to be set aside on the petition for relief be executed? (5%) [1997 Midterms VIIa] A. No. The preliminary injunction has not been dissolved and is still in force. Rule 39, Sec. 4 refers to an injunction as a principal remedy and not to a preliminary injunction issued as an auxiliary remedy which auxiliary remedies are not dissolved unless the trial court expressly says so. For the trial court to have dissolved the preliminary injunction here would have mooted the appeal. (Dimaunahan v Arnas, 74 Phil. 155) PROVISIONAL REMEDIES (Preliminary injunction) PLEADINGS (Counterclaim and cross-claim) Q. In an action by P against D for prohibition, P obtained a writ of preliminary injunction against D. On certiorari to the SC, the writ of preliminary injunction was nullified on the ground that the petition was premature because P had not exhausted his administrative remedies. Taking his cue from the SC decision, D filed a motion to dismiss the complaint for failure to state a cause of action and the motion was granted. After this dismissal order became final, D filed an action against P to recover damages resulting from the issuance of the preliminary injunction in the first case. P now moves to dismiss the damage action on the ground that it is barred for not having been set up as a compulsory counterclaim in the prohibition case. Rule on P's motion to dismiss. (1996 Midterm Exam III) A. Motion may be tolerably argued both ways. Arguable that D had waived his claim for damages resulting from the unlawfully issued injunction by having moved to dismiss the complaint in which he had a compulsory counterclaim. (See Int'l Container Services, Inc. v. CA, 214 SCRA 456 [First Div., 1992]). It is also arguable however that the case is assimilable to one where the principal case was dismissed for lack of jurisdiction in which no claim for damages could have been presented in that case so that this independent action for damages for the illegal injunction is not abated (See Santos v. CA, 95 Phil. 360 (1954]) Q. Suppose the main case is dismissed by judgment after trial and this judgment is appealed, what happens pending appeal to a writ of preliminary injunction issued by the trial court while the case was pending with it? (10%) A. The preliminary injunction is not ipso facto dissolved if the judgment of dismissal is silent on the matter as, otherwise, the case will become moot despite the appeal. So, the preliminary injunction is dissolved only if the court expressly says so. [Dimaunahan v. Aranas; 74 Phil 455, 460 (1943)]. The rule is different in case of a permanent injunction, in which case R39, S4 expressly providing that the judgment granting, dissolving, or denying the injunction is immediately operative. Q. Can the MTC issue a writ of preliminary mandatory injunction in an action of unlawful detainer? (5%)

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A. No. Art. 359, NCC authorizes an MTC to issue a writ of preliminary mandatory injunction in forcible entry cases only. Q. P, a resident of San Juan, Metro Manila, entered into an agreement with D, a resident of Quezon City, respecting a piggery business in Marilao, Bulacan. They quarreled over the management and control of the business, and so P sued D in RTC-QC which issued a preliminary injunction restraining D, his nominees, and all persons claiming under him from entering the piggery compound in Marilao, Bulacan. D moved to lift the preliminary injunction on the ground that it is sought to be enforced beyond the territorial jurisdiction of the RTC-QC. Resolve the motion. A. Motion to lift denied. An injunction to restrain acts committed outside the territorial jurisdiction of the issuing court is valid where the principal business addresses of the parties and the decisions on the acts to be restrained are located and originated within the court's jurisdiction. (Embassy Farms, Inc. v CA, 188 SCRA [1990], 2nd Div.)

XI.

DISCOVERY

Q: "work product rule" A: The rule which immunizes from discovery the notes, impressionss and other work product of the lawyer gathered or obtained in preparation for litigation.

Depositions Q. (a) Can a party take the deposition of a person without any showing that the deponent will be unavailable as a witness at the trial? (b) If so, can such deposition be used in evidence? (1994 Midterm Exam IVab) A. (a) Yes. Availability of the deponent as a witness at the trial will affect the party's right to use the deposition - not his right to take it. See Dasmarinas Garments, Inc. v. Reyes, 225 SCRA 822[2nd Div.], 1993). (b) Yes, under the conditions and for the limited purposes stated in Section 4, Rule 24. Q. Suppose P had introduced in evidence a pre-trial deposition of D's general manager which contained a statement that the company had no budget for the current year for repair of their vehicles, may P thereafter (i.e., after the general manager had testified for D) introduce evidence that the general manager's reputation for truth and veracity is bad? [1999 UP Barops I] A. Yes, by using the deposition as substantive evidence, P had not thereby made the general manager his own witness (Rule 24, Sec. 8). Hence, the impeachment of D's witness by reputation evidence is still open to P. Moreover, by presenting the general manager's deposition, P in effect made this general manager an adverse-party witness under Rule 132, Sec. 12 and so he may be impeached by P as if he was called by D.

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Q. Since a deposition officer cannot rule on objections to evidence, what would be the point of raising any objection to evidence at the deposition-taking? (5%) [1997 Midterms VIIb] A. See Rule 24, Sec. 29 (e). Request for admission Q. Where the defendant fails to answer a request for admission served on him by plaintiff asking for admission of all the material allegations of the complaint, what is the plaintiff's best procedural recourse? (5%) [1999 Midterm VI] A. He should file a motion for summary judgment because the material allegations of the complaint are not disputed. (See Allied _______Business Development Co., ______vs. CA, GR No. 11843__, Dec. 4, 199_) Q. May discovery still be resorted to by a party litigant even after the promulgation of final and executory judgment? (5%) A. Yes. See R39, Sections 38-40.

Q. Does a party litigant enjoy any discovery rights after the promulgation of final and executory judgment? (5%) A. Yes. See R39 Secs. 38-40.

Q. Where the defendant fails to answer a request for admission served on him by plaintiff asking for admission of all the material allegations of the complaint, what is plaintiff's best procedural recourse? A. He should file a motion for summary judgment because the material allegations of the complaint are not disputed. (See Allied... Business Development Co. v CA, GR No. 118436) Q. The court issued a subpoena duces tecum ordering the defendant "to bring with her whatever document is in her possession relative to this case." Is it possible to quash this subpoena duces tecum and, If so, on what grounds? A. Yes. On 2 grounds, to wit: 1) it is unreasonable and oppressive as it requires the production of numerous books, documents or things that are not properly described or identified; or, 2) if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. (Rule 21, Sec 4; Uy v Aleonar, 94 O.G. p 1971 [ 1993; CA ])

XII. PRE-TRIAL
Q. The complaint was dismissed for failure of the plaintiff to appear at the pre-trial despite due notice. May he re-file the complaint? (5%) [1997 Midterms VIb] A. No. The dismissal for non-suit is effectively for failure to prosecute and is therefore an adjudication on the merits under Section 3 of Rule 17.

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Subpoena

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Q. May a court order the immediate arrest of a witness who has failed to obey a subpoena in a case pending with it? (1996 Midterm Exam Xb) A. No. Failure to obey subpoena constitutes indirect not direct contempt for which the alleged contemnor could not be adjudged guilty without hearing. Properly, the court should first issue an order requiring the alleged contemnor to show cause why he should not be punished for disobedience to its process in order to give him a chance to explain his failure to appear as witness. See Gardones v. Delgado, 58 SCRA 581 (1974). Q. How can you, as a party to a civil action, access a document under the control of a nonparty? [1999 UP Barops VII] A. By subpoena duces tecum. Demurrer to evidence Q. Action to collect on a promissory note. At the trial, plaintiff presented the note through its records custodian who had no personal knowledge of the transaction. After plaintiff rested, the defendant filed a demurrer to evidence on the ground that plaintiff's evidence was merely hearsay. The trial court granted the demurrer. On appeal, however, the CA reversed and remanded the case to the trial court for further proceedings. Did the CA act correctly? (10%) [2000 Finals I] A. No. CA should have rendered judgment on the basis of the evidence submitted by petitioner. The evidence was sufficient to support plaintiff's claim. Even if plaintiff's witness had no personal knowledge of the promissory note, this note is still admissible to prove its existence and its tenor as these facts are of independent relevance. Under section 1, Rule 33, defendant is deemed to have already waived his right to present evidence as, by filing a demurrer, he is deemed to have elected to stand on the insufficiency of plaintiff's evidence. (Radiowealth Finance co. v. Del Rosario, GR No. 138739, July 6, 2000) Q. May a court dismiss an action for failure of plaintiff's lawyer to appear at the trial despite due notice? (5%)

XIV. JUDGMENTS
Q. When is a judgment of a trial court considered to have been promulgated? (5%) [1995 Finals IIa] A. In civil cases, upon the filing with the clerk of court of the signed decision. In criminal cases, upon the reading of the judgment in the presence of the accused and of any judge of the court in which it was rendered. Judgment on the merits Q. In a suit on promissory notes which stipulated that the interest due shall be compounded quarterly, the RTC rendered judgment ordering D to pay P the notes with

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18% interest per annum. After the judgment became final and executory, D tendered to P an amount in full payment of the judgment debt but P rejected this tender on the ground that per Ps computation the judgment debt was much more. The difference between the two amounts arises from the disagreement as to whether the judgment allowed quarterly compounding of interest; P said that it did, but D claimed it did not. D then consigned the amount with the trial court under a motion praying for a ruling that the judgment did not allow quarterly compounding of interest, but P opposed the motion on the ground that the interest due must be compounded on a quarterly basis since such is the intention of the court and is necessarily implied from the findings of fact in the body of the decision. The trial court issued an order denying the Consignation and Motion filed by D and holding that P was entitled to compound interest quarterly even if the judgment did not provide for such compounding in its dispositive portion, the reason being that such ambiguity is clarified in the body of the decision. Is this order valid? (1994 Midterm Exam X) A. No. The settled doctrine is that if there is a conflict between the body of the decision and the dispositive part, the latter should prevail. It is only when there is an ambiguity in the dispositive part that the court may resort to the body of the decision to clarify the ambiguity. But this doctrine applies only when there is a conflict between the body and the dispositive portion. Here, however, the dispositive part is of the judgment is clear and unambiguous, so that there is nothing to interpret or clarify even if it is in conflict with the statements in the body. In such a case the rule is clear, it is the dispositive part that should prevail. The judgment here is clear for the payment of interest at 18% per annum; it cannot be taken to be an interest to be compounded quarterly. What actually happened may be an oversight on the part of the trial judge in not including in the judgment a provision for the payment of compound interest on a quarterly basis. There is a parallel neglect on the part of counsel for P in not seeking a modification of the judgment before it became final and executory. The error cannot be cured by amendment; it is not a mere clerical error but a judicial error. Garcia v. Amin 90 O.G. 2095 (CA, 1990) Nunc pro tunc judgments Q. Service of summons was made by a PNP policeman in the municipality where the defendant resides. At plaintiff's behest, an affidavit was executed by the former presiding judge of the issuing court that he had issued an order authorizing service of summons by the policeman but the court record showed no such approval. So, plaintiff, submitting this affidavit to the court, moves for the issuance of an order nunc pro tunc stating the requisite authority for service of summons by this policeman. Should this motion be granted? (1996 Midterm Exam IIb) A. No. A nunc pro tunc entry is an entry made now of something which was previously done to have the effect as of the former date. Without some visible data in the record of the issuance of such an order, a nunc pro tunc entry is not justified. (lichauco v. Tan Pho, 51 Phil. 662 [1923]) Judgments by compromise and upon confession Q. On 01 July 1985, the RTC issued judgment, which was duly served on the parties one week later, based on compromise between P and D Corporation under which D was supposed to make payments to P. On 14 February 1992, due to D's alleged failure to make some of the payment required under the compromise judgment, P filed an action in the same RTC to compel D to make these payments. In answering the complaint, D admitted the promulgation of the compromise judgment but alleged that it was entered into by its then President without the requisite authority of the stockholders and that it was therefore ultra vires. Can this defense still be entertained? (1996 Midterm Exam VIa)

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A. No more. The compromise judgment was immediately final and executory and its validity cannot be assailed collaterally unless the ground of attack is lack of jurisdiction or an irregularity apparent on the face of the record or because it is vitiated by fraud. (Cadano v. Cadano, 49 SCRA 33 [1973]) Q. Can a party move to set aside a compromise judgment? grounds? [1996 Finals V] If so, how and on what

A. Only thru a Rule 38 petition for relief and on the grounds stated in this Rule. A Rule 37 motion, which presupposes a non-final judgment, is not available because a compromise judgment is immediately final and executory. (Samonte v. Samonte, 64 SCRA 524 [1975]). Declaratory judgments Q. May a third-party complaint be filed in an action for declaratory relief? [1996 Finals IV] A. No. A petition for declaratory relief seeks no positive or affirmative, much less any material, relief beyond the adjudication of the legal rights which are subject of the controversy between the parties. But in a third-party complaint, the defendant or third-party plaintiff is supposed to seek contribution, indemnity, subrogation or any other relief from the third-party defendant in respect to the claim of the plaintiff against him. (Commissioner of Customs vs. Cloribel, 77 SCRA 459 [1977]). Q. Both plaintiff and defendant were duly served copies of the decision on July 1. Neither party appeals or files a motion for new trial or reconsideration. When does this decision become final? A. 2) Upon the date of entry of this decision in the book of entries of judgments. (Rule 36, sec

Q. A railroad collision injures 50 passengers all of whom bring separate actions against the railroad. After the railroad wins the first 25 suits, a plaintiff wins in suit 26. Should not the doctrine of "collateral estoppel" be applied to allow plaintiffs 27 through 50 automatically to recover? A. No. It would be unfair to the defendant railroad since suit 26 may have been for small or nominal damages only so that the railroad had little incentive to defend vigorously. Besides, the judgment relied upon in suit 26 as a basis for the estoppel may itself be inconsistent with one or more previous judgments in favor of the defendant. Q. May judgment be rendered in the alternative?

A. Yes. E.g. in a replevin case, the judgment is in the alternative for the delivery of the property or for its value in case delivery cannot be made. (Rule 60, sec 9)

XV. REVIEW AND CORRECTION OF TRIAL COURT ERRORS


Q. Action for breach of contract by P against D in the RTC. On D's motion, the initial trial was postponed 5 times. On the 6th resetting of the case for trial, neither defendant nor his lawyer appeared although a messenger of defendant's lawyer filed then and there a motion for postponement by D's lawyer on the ground that he has another hearing on the same date and time in an out-of-town court. The court denied the motion for

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postponement and allowed P to present his evidence ex-parte and considered D to have waived his right to present evidence. Thereafter, the court considered the case submitted for decision. About two months later, the court rendered a decision in favor of P and against D. D then filed a petition for certiorari with the Court of Appeals claiming that the RTC had acted with grave abuse of discretion in denying his motion for postponement and declaring him as having waived his right to present evidence. While this petition was pending in the CA, defendant perfected his appeal from the RTC's decision to the CA also. P, appearing now as private respondent on the certiorari petition, moved in the CA for the dismissal of the petition on the ground that D had lost his right to avail of the remedy of certiorari when he perfected an appeal from the RTC decision. Resolve P's motion to dismiss the certiorari petition. (10%) Q. When is a Motion for Reconsideration of an RTC judgment considered pro forma, and what is the risk to the movant in filing such a motion? (5%) A. If based on R37S1(c), a motion for reconsideration is pro-forma if it does not point out specifically the findings of conclusions in the judgment which are not supported by evidence or which are contrary to law, making express reference to the pertinent evidence or legal provisions. [Alvero v. Dela Rosa; 76 Phil 428, 435] If a second MR where it is not based on a ground not existing or not available where 1st MR was made (R37S4; City of Cebu v. Mendoza 62 SCRA 440 (1975)] It is also pro-forma when it has no notice of hearing or a defective notice of hearing. A pro-forma MR will not interrupt period of appeal. Extraordinary remedies (prerogative writs: certiorari, prohibition and mandamus) as modes of review) Also PROVISIONAL REMEDIES (Replevin) Also PARTIES (New/additional parties: Intervention) Q. P filed a complaint for the recovery of two barges from the possession of the Philippine Coast Guard seeking the issuance of a writ of replevin for the purpose. The trial court, after the filing by P of the requisite bond, issued a writ of replevin for the seizure of the two barges which in the meanwhile were sold to a third party. Meanwhile, X filed a motion for intervention, claiming ownership over the two barges which it allegedly acquired form P in a public auction sale. The trial court denied X's motion for leave to intervene and ordered the release of the barges to P. Dissatisfied with this order, X filed a petition for certiorari in the Court of Appeals contending that the trial court gravely abused its discretion in denying X's motion for leave to intervene. How should the Court of Appeals resolve the certiorari petition? (1994 Midterm Exam VI) A. The Court of Appeals should deny the certiorari petition because other adequate remedies were available to petitioner; for instance, a motion for reconsideration of the order for the issuance of writ of replevin, or X could have filed a third-party claim over the barges under Section 7, Rule 60, or, of course, X could have instituted the proper action to vindicate its claim to these barges. But back to the merits of the motion for intervention, the Rules allow such intervention only where it will not unduly delay or prejudice the adjudication of the rights of the original parties and where the intervenor's rights may not be filly protected in a separate proceeding. Here, the barges had already been sold to a third party and to allow X to intervene in the replevin suit would merely make the proceedings unnecessarily complicated and new and

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unrelated issues on conflicting claims of ownership, authenticity of documents of title and regularity in the mode of acquisition thereof may be expected to be raised. (Big Country Ranch Corp. v. CA, 27 SCRA 161 [ 2nd Div.], 1993) Q. Suppose the main case is dismissed by judgment after trial and this judgment is appealed, what happens pending appeal to a writ of preliminary injunction issued by the trial court while the case was pending with it? (10%) A. The preliminary injunction is not ipso facto dissolved if the judgment of dismissal is silent on the matter as, otherwise, the case will become moot despite the appeal. So, the preliminary injunction is dissolved only if the court expressly says so. [Dimaunahan v. Aranas; 74 Phil 455, 460 (1943)]. The rule is different in case of a permanent injunction, in which case R39, S4 expressly providing that the judgment granting, dissolving, or denying the injunction is immediately operative. Q: By sheer coincidence, Atty. Lopez was on the same day, 30 June 1991, served with adverse decisions of the Court of Appeals and the Regional Trial Court. In each case, he filed a motion for reconsideration simultaneously on 10 July 1991. He received notices of the denial of his two motions for reconsideration on 15 August 1991. If Atty. Lopez decides to appeal in each of the two cases (a) What mode of appeal should he pursue in each case? (b) How would he perfect each appeal? (c) Within what time should each appeal be perfected? (10%) A: (a) (1) From the Court of Appeals to Supreme Court - appeal by certiorari under Rule 45. (2) From the Regional Trial Court to Court of Appeals - ordinary appeal on questions of fact and law. (3) From the Regional Trial Court to Supreme Court - appeal by certiorari on questions of law only. (b) (1) From Court of Appeals to Supreme Court, by filing a petition for review on certiorari with the supreme Court and serving a copy on the Court of Appeals and the adverse party. (2) From Regional Trail Court to Court of Appeals by filing a notice of appeal with Regional Trial Court and serving a copy on the adverse party. (3) From Regional Trial Court to Supreme Court, by filing a petition for review on certiorari with Supreme Court and serving a copy on the lower court and the adverse party. (c) (1) From Court of Appeals to Supreme Court, on or before 30 August 1991, or fifteen days from notice of the denial of the motion for reconsideration. (Sec. 1 of Rule 45) Q: On what grounds may the trial court dismiss an appeal taken from its decision? (5%)

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A: On two (2) grounds only, to wit: (a) for having been taken out of time, or (2) for non-payment of the docket or other lawful fees within the reglementary period. (Rule 41, Sec. 13, as amended, effective 01 May 2000) Q: Defendant, who was served the MTC's adverse judgment in an ejectment case on 01 June 2000 moved on 03 June 2000 for reconsideration of this adverse decision. The MTC's order denying the motion for reconsideration was served on defendant on 20 June 2000. Then, on 27 June 2000, defendant filed a notice of appeal from the ejectment decision to the RTC. Is the appeal timely filed? (5%) A: No. The ejectment decision having presumably been rendered by the MTC under the Revised Rule on Summary Procedure, a motion for reconsideration is a prohibited pleading. (1991 revised Rule on Summary Procedure, Sec. 19 [c]). So, the filing of this motion did not suspend or toll the running of the period for finality of the ejectment decision which thus became final on 16 June 2000. Q: Does an appeal from a final judgment of the RTC stay the enforcement of this judgment? (5%) A: Yes, unless it is an appeal from a judgment of the RTC in the exercise of its appellate jurisdiction over a civil case governed by the Revised Rule on Summary Procedure. (1991 Revised Rule on Summary Procedure, Sec. 21; Rule 70, Sec. 21) Q: "material data rule" A: Rule 41, Sec. 6. Q: An ejectment complaint was dismissed by the MTC for plaintiff's alleged failure to establish his pleaded cause of action. On appeal, the RTC affirmed in a decision which reasoned that defendant-tenant had not defaulted in the payment of rentals and that the lease had a fixed term. On reconsideration, the RTC reversed in a decision as follows: "Considering the grounds for plaintiff-appellant's motion for reconsideration, the defendant-appellee's opposition and reply to opposition, the decision of this court is hereby reconsidered, thereby reversing the decision of the court a quo and instead a decision is now rendered in favor of plaintiff-appellant and against the defendant-appellee as pryaed for in plaintiff-appellant's complaint." Is the decision valid? (5%) A: No. It does not, contrary to Section 1 of Rule 31 and Section 14 of Article VIII of the Constitution, state the law and facts on which it is based (Based on Anasco v. Judge of RTCPasig, 88 O.G. 8018 [CA; 1989]) Q. What are the ways by which a final and executory judgment may be attacked? (5%) [1999 Midterm XIV] A. a.) By petition for relief; b.) By direct action to annul and enjoin the enforcement of the judgment where the alleged defect is not apparent on its face or from the recitals contained in the judgment; c.) By special civil action of certiorari; and d.) By collateral attack where that challenged judgment is void upon its face or its nullity is apparent from its own recitals. (See Filinvest Credit Corp. vs. IAC, 207 SCRA 59 [1st Div., 1992])

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Q. Distinguish between a petition for certiorari as a special civil action and a petition for certiorari as a mode of appeal. [1999 UP Barops XI] A. a.) As a mode of appeal it should be filed within 15 days from notice of the judgment or of denial of the motion for reconsideration filed in due time. (Rule 45, Sec. 2). As special civil action, it may be filed within 60 days from notice of the judgment. (Rule 65, Sec. 4) b.) The grounds are different. (See Rule 45, Sec. 6 and Rule 65, Sec. 1) As a mode of appeal, the respondent court need not be made a party to the petition; as a special civil action, the respondent court should be made a party to the petition. Appellate proceedings; review and correction by another court on appeal Q. Is an order denying a motion for reconsideration of a final and appealable judgment itself appealable? (1996 Midterm Exam Ib) A. Arguably not. Otherwise, a party's period to appeal from the final judgment may be unduly extended whereas the time during which the motion for reconsideration was pending is supposed to be merely deducted from the time to appeal, except in the case of a motion for reconsideration of a CA decision which under Rule 45 completely tolls the time to appeal. Q. In an action by P against D, the RTC rendered judgment which was served on P on 01 July 1995 and on D on 05 July 1995. On 20 July 1995, D filed his notice of appeal from this judgment to the CA, and on the same date P filed a motion fro reconsideration of the same judgment. Is P's motion for reconsideration timely? (1996 Midterm Exam IVa) A. No. The decision had become final in respect to P. The clause "upon the expiration of the last day to appeal by any party" in Sec. 23 of the Interim Rules refers to D whose period to appeal has not yet expired, P's period to appeal having expired on 16 July 1995. (see Abe Industries, Inc. v. CA, 162 SCRA 48 [2nd Div., 1988]) Q. Is there any case where an appeal may be made to the SC by notice of appeal? (1993 Midterm Exam IVa) A. No answer Q. What should the CA do to an appeal by notice of appeal from the RTC to it when the appellant raises issues of law only, or to an appeal by notice of appeal from a judgment of the RTC in the exercise of its appellate jurisdiction? (1993 Midterm Exam IVb) A. No answer Q. Is there any decision of the MTC in civil cases which is directly reviewable by the CA? (1993 Midterm Exam VIa) A. No answer Q. In civil cases, where should the appellant pay the appellate court docket fee and what is the effect of non-payment of such fee? (5%) [2000 Finals II] A. The fee should be paid to the clerk of court which rendered the judgment or final order appealed from (Rule 41, Sec.4). Non-payment of such fee is ground for dismissal of the appeal

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by the trial court (Rule 41, Sec. 13, as amended eff. 1 May 2000) or by the appellate court (Rule 50, sec. 1 [c]). Q. Can a third-party plaintiff appeal from an order dismissing his third-party complaint for failure to prosecute? (5%) [1999 Midterm XVII] A. Only with the court's permission. (Rule 41, Sec. 1[g]. See also Rule 36, sec. 5) Q. Can a trial court still act on a motion for execution pending appeal of its judgment after the appeal from this judgment has already been perfected? (5%) [1995 Finals IIIb] A. Yes. So long as the records of the case have not been transmitted to the appellate court (Echaus v CA, 187 SCRA 672). Q. In an ejectment case by P against D, the MTC rendered judgment ordering D to vacate the premises and to pay P rentals. In due course, D filed his notice of appeal and supersedeas bond, whereupon the MTC ordered the transmittal of the case records to the RTC. But the RTC dismissed the appeal upon D's failure to pay the appeal fee within the reglementary period. Is the dismissal correct? (10%) [1997 Midterms V] A. No. While Rule 141, Section 8 requires the payment of an appeal fee for an appeal taken from the MTC to the RTC, the only requirement for taking an appeal from an RTC judgment under Section 20 of the Interim Rules is the filing of a notice of appeal. Failure to pay the appellate court's docket fee within the reglementary period confers a discretionary and not a mandatory power to dismiss the appeal. (Santos v CA, 253 SCRA 632) Extraordinary remedies (prerogative writs: certiorari, prohibition and mandamus) as modes of review Q. In an action for unlawful detainer by P against D in the MTC, judgment was rendered against D ordering him to yield the premises to P. On D's timely appeal to the RTC, the latter found that he had been unlawfully withholding possession of the premises for more than one year prior to the filing of the complaint and that therefore the proper action was accion publiciana and not unlawful detainer, and the RTC thereby declared the MTC without jurisdiction over the case and nullified the proceedings therein. Now , P filed a Rule 65 petition for certiorari with the CA against this RTC decision. How should the CA resolve the certiorari petition? (1996 Midterm Exam IIa) A. The CA should dismiss the certiorari petition. There was on the RTC's part no error of jurisdiction but only error of judgment and appeal was an available and adequate remedy. (Fernand v. Vasquez, 31 SCRA 288 [1970]). Q. P filed an action in the CA for mandamus against D and also prayed for moral and exemplary damages. Does the CA have jurisdiction over the action? (1993 Midterm Exam VIIIa) A. No answer Review and correction by another court in an independent action: direct attack Q. P filed an action against D for unlawful detainer with the MTC on the ground of nonpayment of rent. After D filed his answer, and while the case was still pending, D died. Thereafter, D's heirs continued, without any formal substitution, with the case and

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presented their position paper for the defendant. After due hearing, the MTC rendered judgment, ordering D's heirs to vacate the premises. After this judgment became final and executory, D filed an action in the RTC to annul the judgment on the ground that it was rendered without jurisdiction over D's heirs, there having been no formal substitution of parties. Is the petition to annul the MTC decision tenable? (10%) [1996 Midterms IX] A. No. Jurisdiction over the person was acquired by the voluntary appearance of D's heirs. At any rate, these heirs, having participated in the litigation, are already estopped to question the court's jurisdiction over them. The MTC case was properly continued since the ejectment case is an action which survives, and the judgment in an ejectment case is binding on the parties and their successors-in-interest by title subsequent to the commencement of the action. (Vda. De Salazar v CA, 250 SCRA 305). Q. D sold a parcel of land to P with a right to repurchase within three (3) months. Failing to repurchase within the agreed period, P obtained title in his name and demanded that D vacate the premises. Since D failed to heed the demand, P filed an action against him for ejectment and summons was served by substituted service on D's brother who was then residing in the place. For failure to file an answer, D was declared in default and adjudged to vacate the premises and to pay certain rentals. D appealed the decision to the RTC on the ground that the service of summons was not valid. Thereafter, D filed a notice of appeal signifying his intention to appeal the judgment to the CA. In the meanwhile, D filed another action before the Court of Appeals to annul the RTC judgment in which he again assailed the validity of the substituted service of summons in the RTC. What should be the ruling on the petition to annul? (10%) [1997 Midterms II] A. Dismiss the petition. It is barred by res judicata under Sec. 49(c) of Rule 39. The decision in the ejectment suit had become final because the proper remedy against the RTC judgment is a petition for review and not an appeal. (Ybaez v CA, 253 SCRA 540). Review and correction by the trial court of its own proceeding: Motion for reconsideration or new trial Petition for relief Q. Defendant was declared in default by the RTC for failure to file a responsive pleading and thereafter judgment by default was rendered against him. This decision by default was served on the defendant on 25 July 1995, and on 01 August 1995 defendant filed a motion to have this decision reconsidered and set aside and for it to be allowed to file its answer on the ground that it had already actually paid the obligation sued upon in the complaint. The RTC denied the motion for reconsideration and a copy of the denial order was served on defendant on 27 October 1995. On 04 November 1995, defendant filed with the RTC a petition for relief from judgment. Comment on the timeliness and appropriateness of this petition for relief. (10%) [1996 Midterms VI] A. The petition for relief is improper and premature. Defendant had until 05 November 1995 within which to perfect an appeal, and therefore, the petition for relief was the wrong remedial recourse at the time. (Oriental Media Inc. v CA, 250 SCRA 647) Q. In an action by P against D, the RTC judgment in favor of P was served on D on 03 May 1999, and on 18 May 1999 D filed a motion for new trial on the ground of newly discovered evidence. The RTC denied the motion for new trial in an order which was served on D on 01 July 1999. On the following day, i.e., 02 July 1999, D filed his notice of appeal. The RTC denied the appeal for having been filed out of time, and the denial order was served on D on 12 July 1999. D filed on 13 July 1999 in the very same case a petition for relief from

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judgment on the ground of accident or excusable neglect. Is the petition for relief the proper remedy? (10%) [1999 Midterm VII] A. Yes, if the right to appeal was lost through no fault or neglect of D. But mandamus to compel the RTC to give due course to the appeal may be a more appropriate remedy because the right to appeal __________________lost, D having an extra day, and the_ _____ up ________July 1999 within which to appeal. (Rule 41, Sec. 3, 2nd par. In relation to Rule 22, Sec. 2) Q. Suppose in question above, the RTC denies D's petition for relief, what remedy, if any, is available to D to challenge the order denying the petition for relief? (5%) [1999 Midterm VIII] A. Only a Rule 65 petition for certiorari, since an appeal is not available. (Rule 41, sec. _1 [b]) Q. Is a motion for reconsideration which deals with the same issues and arguments posed and resolved by the trial court in its decision pro forma? (5%) [1997 Midterms IIIb] A. Not necessarily. A pleader preparing for a motion for reconsideration must, of necessity, address the arguments made or accepted by the trial court in its decision. If a motion for reconsideration may not discuss the issues passed upon by the court, then the losing party would be confined to filing only motions for reopening and new trial and that would in effect eliminate Sec. 1(c) of Rule 37. (Marikina Valley Dev't. Corp. v Flojo, 251 SCRA 87). Q. Is a motion for reconsideration which deals with the same issues and arguments treated in the movant's memorandum and already considered and resolved by the trial court in its decision pro forma? (10%) [1996 Midterms V] A. Not necessarily. A motion for reconsideration has to "point out specifically the findings and conclusions of the judgment which are not supported by the evidence or which are contrary to law. Since one of the ends of a motion for reconsideration is to convince the court that its ruling is erroneous and improper, contrary to law or the evidence, the movant has to dwell of necessity on the issues passed upon by the court. If movant cannot discuss these issues, he would be confined to filing only motions for reopening and new trial. A reasonable application of the pro forma doctrine relating to motions for reconsideration is called for because this doctrine impacts on the right to appeal, an important and valuable right (Marikina Valley Dev't. Corp v Flojo, GR 11081, 08 December 1995). Q. RTC-Manila Branch 50 rendered a default judgment against defendant in Civil Case No. 123456. After this decision became final, RTC-Manila granted plaintiff's motion for execution. In the meanwhile, defendant filed in the RTC-Manila Branch 12, another caseCivil case 123789-which was a petition for relief from Branch 50's judgment in Civil case No. 123456. RTC-Manila Branch 12 motu proprio dismissed the petition for relief for lack of jurisdiction, but defendant appealed the dismissal order to the CA. At the same time defendant moved in Branch 50 to quash the execution writ there issued on the ground that the default judgment was still reviewable under Rule 41, Sec. 2 on defendant's appeal from the order denying his petition for relief. Evaluate a. the correctness of Branch 12's dismissal order and of defendant's appeal from this order. b. The merits of defendant's motion in Branch 50 to quash the execution writ. (20%) [1996 Midterms I]

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A. a. Branch 12's dismissal is correct. Defendant did not comply with Rule 41, Sec. 2. He did not file his petition for relief in the same case but in another case. Branch 12 cannot take cognizance of the petition; only Branch 50 could do so. Defendant's appeal to the CA was wrong. It should've been to the SC through a petition for review on certiorari in accordance with the Judiciary Act of 1948 as amended by RA 5440 and Sec. 25 of the Interim Rules. Defendant's motion to quash Branch 50's execution should be denied. Branch 50's final judgment could be executed despite D's appeal from the order denying his petition for relief. No preliminary injunction had been issued pursuant to Rule 38, Section 5. Rule 41, Section 2, giving the appellate court in an appeal from an order denying a Rule 38 petition the power to review the judgment on the merits, does not give the appellate court the power to reverse or modify such power on the merits. Such a review of the judgment on the merits merely enables the appellate court to determine not only the existence of any of the grounds-FAME-but also the merits of petitioner's cause of action or defense. (Service Specialists v Sheriff, 145 SCRA 139). Q. Plaintiff filed an action in the MTC. On defendant's motion, the MTC dismissed the case for lack of jurisdiction. Plaintiff appealed to the RTC. The RTC agreeing that the MTC did not have jurisdiction over the case, proceeded, over the defendant's objection, to try the case on the merits and thereafter gave judgment for the plaintiff. Did the RTC act correctly? (10%) A. No. The RTC should have simply ruled on whether the MTC's order of dismissal was valid or not. Following R40S10, if the RTC found that the MTC had no jurisdiction, all it had to do was to affirm the judgment of the MTC dismissing the complaint. If the RTC found the MTC to have had jurisdiction, then the RTC should have remanded the case to the MTC for proper hearing. R40S11 does not apply here because the MTC did not try the case on the merits. Besides, defendant objected to the RTC's trying of the case. [The problem is modified from the facts of a 1975 CA decision in Castro v. De Guzman 73 OG 9623 (1977)] See new Rules R40 S8. Q. In an action by P against D, the RT judgment in favor of P was served on D on 03 May 1999, and on 18 May 1999 D filed a motion for new trial on the ground of newlydiscovered evidence. The RTC denied the motion for new trial in an order which was served on D on 01 July 1999. On the following day, i.e. 02 July 1999, D filed his notice of appeal. The RTC denied the appeal for having been filed out of time, and the denial order was served on D on 12 July 1999. D filed on 13 July 1999 in the very same case a petition for relief from judgment on the ground of accident or excusable neglect. Is the petition for relief the proper remedy? A. Yes. If the right to appeal was lost through no fault or neglect of P. But mandamus to compel the TC to give due course to the appeal may be the more appropriate remedy because the right to appeal was not really lost, D having an extra day, and therefore up to ... July 1999 within which to appeal. (Rule 41, sec 3, par 2 in relation to Rule 22, Sec 2) Q. Suppose that in problem No. II above, the RTC denies D's petition for relief, what remedy, if any, is available to D to challenge the order denying the petition for relief? A. Q. Only a Rule 65 petition for certiorari, since an appeal is not available. (Rule 41, Sec 1[b]) What are the ways by which a final and executory judgment may be attacked?

1) By petition for relief

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2) By direct action to annul and enjoin the enforcement of the judgment where the alleged defect is not apparent on its face or from the recitals contained in the judgment. 3) By a special civil action of certiorari; and 4) By collateral attack where the challenged judgment is void upon its face or its nullity is apparent from its own recitals. (See Filinvest Credit Corp. v IAC, 207 SCRA 59 [1st Div., 1992]) Q. Can the third-party plaintiff appeal from an order dismissing his third-party complaint for failure to prosecute? A. Only with the court's permission. (Rule 41, Sec 1[g], See also Rule 36, Sec 5).

Q. P brought an action in the RTC to annul a judgment of an MTC in what was thought to be a mere unlawful detainer action but actually was one for rescission and therefore not capable of pecuniary estimation. Defendant moved to dismiss the motion on the ground that plaintiff had not exhausted all the ordinary remedies of new trial, appeal, and petition for relief. Rule on the motion to dismiss. A. Motion to dismiss denied. The requirement of prior resort to all of the ordinary remedies of new trial, appeal and petition for relief is contained in Rule 47, section 1 and refers to motions for the annulment in the CA of judgments or final orders of the RTC. (1997 Rules of Civil Procedure, Rule 47, sec 1) But there is no requirement that these ordinary remedies be first exhausted before an action to annul a judgment or final order of an MTC may be filed in the RTC. (Rule 47, sec 10) Q. Give at least one example of a civil case (not a special proceeding) wherein multiple appeals are allowed. A. Generally, in cases of several and of separate judgments. (Rule 36, secs 4 & 5). Specifically, in actions for recovery of property with accounting and for partition. In these cases the judgment for recovery of property is final and appealable without awaiting the accounting; and an order of partition is final and appealable without awaiting the actual partition. Hence, the accounting or the partition may continue pending the appeal and a second appeal may be taken from the judgment on the accounting or the partition. (Miranda v CA 71 SCRA 295 [1976]; De Guzman v CA, 74 SCRA 222 [1976]) Q. How final judgment may be set aside?

XVI. ENFORCEMENT OF JUDGMENTS


Q. Compliant by P against D in the MTC for ejectment. The MTC's judgment for D was duly appealed to the RTC which reversed the MTC judgment and ordered D to vacate the premises. This RTC judgment was received by D's counsel on 16 January 1987. on 23 January 1987, D filed with the RTC a notice of appeal of its judgment indicating that he would appeal it to the CA. Acting on this notice of appeal, the RTC on 6 February 1987, ordered the records of the case to be forwarded to the CA. On the following day, however, and before the records were actually elevated to the CA, P filed a motion in the RTC for the execution of its judgment. Resolve the motion for execution. (10%) A. Motion for execution granted. RTC judgment became final and executory and its review by the CA could only be had by petition for review and not by appeal. [BP 129, Sec. 22; marino v. CA 124 SCRA ____ (1983)]

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Q: What is the proper recourse of a party aggrieved by an order for execution pending appeal? (5%) A: Rule 65 certiorari because such an order is not appealable. (Rule 41, Sec. 1, par. 2 (f)) Q: What is the period of redemption from a real estate mortgage foreclosure? (10%) A: It depends. If the foreclosure is judicial, there is only an equity of redemption and this is 90 to 120 days only from entry of judgment (Rule 68, Sec. 2) or at the latest until the order of confirmation of the sale (id., Sec. 3). If foreclosure is extra-judicial, it further depends: one year from registration of the sale (Act No. 3135, as amended by Act No. 4118) or, under Sec. 47 of the General Banking Act of 2000 (effective sometime in June 2000), if the mortgagor is a juridical person and the mortgagee is a bank, the redemption period is 3 months from the foreclosure sale or until the sale is registered whichever is earlier. Q: "supersedeas bond" A: Rule 39, Sec. 3; Rule 70, Sec. 19. Q: Affidavit of merit A: Rule 9, Sec. 3 (c); Rule 37, Sec. 2, 2nd par.; Rule 38, Sec. 3. When execution proper Q. Action in the municipal trial court for unlawful detainer was decided upon a compromise of the parties. The judgment allowed the defendant-lessee to pay his back rentals in installments, with the provision that in case of failure of defendant to pay any single installment an immediate execution shall issue upon plaintiff's motion. For defendant's failure to pay rentals which accrued after the judgment, plaintiff moved for a writ of execution, and this motion was granted by the court which directed defendant's ejectment form the premises. Is the writ of execution valid? (1994 Midterm Exam III) A. No. It does not conform with the judgment - which was for payment of back rentals only and not of future rentals. Such non-conforming writ is a nullity. And so would the judgment have been a nullity if it was for the payment of future rentals, a suit for such rentals being dismissable outright for lack of cause of action. Default in the payment of rentals accruing after the judgment should be the subject of new cause of action to be ventilated in a new and separate complaint. Otherwise, a judgment would be eternal, whereas it has a lifetime of 10 years only from its finality. Gamboa's Inc. v. Court of Appeals, 72 SCRA 131 (1976). Q. Judgment by the MTC in an ejectment action by P against D ordering D to yield the promises to P was affirmed by the RTC on appeal to it by D. The records of the case were then promptly remanded to the MTRC which, immediately upon receipt of these records, issued on P's ex-parte motion a writ of execution of the judgment. D then filed a Rule 65 petition for certiorari with the CA seeking to nullify the writ of execution on the ground that the issuance of the execution writ was prematuer3. Is D's certiorari petition tenable? (1996 Midterm Exam V) A. Yes. While the MTC decision is immediately executory under Section 21 of the Revised Rule on Summary Procedure, this decision cannot be immediately executed before a copy thereof is

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served on D. Execution of an appealed judgment can issue, as a matter of right only from the date of service of the notice provided in Section 11 of Rule 39. (Dy v. CA, 195 SCRA 585 (First Div., 1991) Q. On 1 March 1993, a decision of the MTC in an unlawful detainer case was served on both plaintiff and the defendant. On 9 March 1993 defendant filed a notice of appeal. Meanwhile, a motion to amend decision was filed on 16 March 1993 by the plaintiff. Hence, on 19 April 1993, the MTC rendered an amended decision. Then, on 17 May 1993 plaintiff filed a motion for execution of the amended decision. Should P's motion for execution be granted? (1993 Midterm Exam VII) A. No answer When execution proper: stay of execution Q. In an action for unlawful detainer in the MTC, defendant lessee was ordered to vacate the leased premises and pay monthly rentals of P50,000 starting 01 April 1997 until he shall have vacated the premises and surrendered its possession to plaintiff lessor , and the sum of P30,000 as attorney's fees. Copy of the decision was served on defendant lessee on 01 March 1999 and, on the next day, 02 March 1999, defendant filed a notice of appeal to the RTC, so that on 08 March 1999, the MTC transmitted the records of the case to the RTC. On 17 March 1999, the plaintiff lessor moved for execution of the decision in his favor, alleging that although defendant had filed a notice of appeal he had not filed a supersedeas bond. Defendant opposed the motion, claiming that he was prevented from filing a supersedeas bond on time because the records of the ejectment case were forwarded to the RTC without waiting for the expiration of his period to appeal and for the further reason that the MTC did not fix the amount of this bond. Rule on the motion for execution. (10%) [1999 Midterm XVI] A. Motion for execution granted. D's failure to file a supersedeas bond is a ground for the immediate execution of the judgment against him. D should have filed a supersedeas bond before he perfected his appeal, this appeal having been perfected as to him upon filing of his notice of appeal. (Rule 41, Sec. 9) As to the amount of the bond, the MTC did not have to expressly or specifically fix the amount of the supersedeas bond because this is equivalent to the amount of rentals, damages and costs stated in the judgment and this is the rentals of P50,000 a month from 01 April 1997 until the date of the judgment. (Chua vs. CA, 286 SCRA 437 [1st Div., 1998]) Third-party claims Q. Who may file a "terceria", with whom is it filed and what is the effect of its filing? [1999 UP Barops II] A. A "terceria" is a third-party claim under Section 17, Rule 39 and is filed by a third-party claimant with the officer making the levy and it is an affidavit of the claimant's title with copy thereof served upon the judgment creditor. With the filing of this affidavit, the officer is not bound to keep the property unless the judgment creditor indemnifies the officer against such claim by an adequate bond. Q. May a third-party claimant whose property had been levied upon by the sheriff intervene in the action from which the writ pursuant to which the levy was made was issued? (5%) [1997 Midterms IXb]

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A. If on attachment-yes. If on execution-no, because intervention must be "before or during a trial." Execution of money judgments Execution of judgments for specific act Q. Action by P against D in the MTC for unlawful detainer. The parties executed a compromise agreement, which the MTC approved and embodied in a judgment, whereby D promised to pay P P10,000.00 on 02 January 1004 and monthly thereafter until 31 May 1995. The compromise agreement also stipulated that failure on the part of D to pay three (3) consecutive installments will entitle P to a writ of execution. Upon D's failure to pay the first three stipulated installments, P obtained on his motion a writ of execution directing D to vacate the premises. Is the writ of execution assailable on any ground? (5%) [1995 Finals Xb] A. Yes. The writ of execution does not conform to the judgment. D's obligation under the compromise judgment is purely monetary but the writ of execution is not for a money judgment as provided in Sec. 15, Rule 39 and instead in for delivery or restitution of property under Sec. 13, Rule 39 (Abinujar v CA, GR No. 104133, 18 April 1995). Q. Is a money judgment enforceable by contempt? (5%) [1997 Midterms VIIIb] A. No. It is not a special judgment under Rule 39, Sec. 9. But see Rule 39, Section. 42. Q. Despite service of the writ of execution of a judgment of ejectment on defendant, defendant refused to vacate and deliver possession of the premises. Hence, upon motion of the plaintiff and after hearing of the parties on the contempt charge, defendant was declared guilty of indirect contempt. Is the contempt order legally assailable? [1999 UP Barops IV] A. Yes, the refusal of the defendant to vacate the leased premises does not constitute indirect contempt. (Flores vs. Ruiz, 90 SCRA 428 [1979]). Contempt is not proper in the enforcement of an ordinary judgment as in this case. The sheriff must enforce the writ of execution by ousting the defendant from the leased premises and placing the plaintiff in possession. (Rule 39, Sec. 10[c]) Q. In action by P against D in the RTC, the court rendered judgment awarding certain amounts to D as moral and exemplary damages and atty's fees. D Received a copy of the decision on 3 January 1989 while P received his copy of the decision on 10 January 1989 and filed a notice of appeal on 16 January 1989 on which same day, the court issued and order giving due course to P's notice of appeal and directing that the records be forwarded to the Court of Appeals. On 17 January 1989, D filed a motion for execution pending appeal and this was granted over P's opposition on the reasoning that D had filed a bond and the mere filing of a bond is good enough ground for execution pending appeal. P then filed a petition for certiorari, prohibition and mandamus with the Court of Appeals wherein he challenged the RTC's grant of execution pending appeal as an abuse of discretion. Resolve P's petition. (20%) A. 1. In the first place, certiorari lies against an order granting immediate execution where the same is not founded upon good reasons. An appeal would not be an adequate remedy from such premature execution. Nor is the filing of a supersedeas bond a plain, speedy and adequate

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remedy because the filing of a such bond does not entitle P to the suspension of execution as a matter of right. 2. The execution pending appeal was timely granted by the RTC because it was granted before perfection of an appeal. Since an appeal is perfected upon the expiration of the last to appeal by any party (Interim Rule 23), this last day is on 25 January 1989, until which day P had time to appeal. The filing of the motion for execution on 17 January 1989 was, therefore, well within the time before the appeal was perfected. The giving of "due course" to the appeal was inconsequential as the notice of appeal does not require any approval. 3. There was no good reason for the issuance of immediate execution. The mere posting of a bond cannot by itself be a "good reason"; otherwise, immediate execution of a judgment would become routinary, the rule rather than the exception. Moreover, awards for moral and exemplary damages cannot be the subject of execution pending appeal because these awards are dependent on the outcome of the main case and remain uncertain and indefinite until final adjudication. [ ___________ v. CA; 184 SCRA 501 (1990)] Q. Pursuant to a writ of execution duly issued by the RTC against D to enforce a 1986 money judgment against him and in favor of P, the sheriff levied on all the rights and interests of D in a parcel of land registered in the register of deeds and annotated on the corresponding title as well as served on D who had been occupying the land continuously since 1980. X was then issued a new Torrens title in his name but with the notice of levy in P's favor carried on the back of this new certificate. So, X brought another action against P, the sheriff and the register of deeds for the cancellation of the annotation of P's notice of levy on the ground that this levy was irregular and improper. Defending against X's action, the defendants alleged the superiority of the lien created by the prior registration of the levy over the subsequent sale in X's favor. Decide the case. (10%) Q. In an action for unlawful detainer in the MTC, defendant lessee was ordered to vacate the leased premises and pay monthly rentals of P50,000.00 starting 01 April 1997 until he shall have vacated the premises and surrendered its possession to plaintiff lessor, and the sum of P30,000.00 as attorney's fees. Copy of the decision was served on defendant lessee on 01 March 1999 and, on the next day, 02 March 1999, defendant filed a notice of appeal to the RTC, so that on 08 March 1999, the MTC transmitted the records of the case to the RTC. On 17 March 1999, plaintiff lessor moved for execution of the decision in his favor, alleging that although defendant had filed a notice of appeal he had not filed a supersedeas bond. Defendant opposed the motion, claiming that he was prevented from filing a supersedeas bond on time because the records of the ejectment case were forwarded to the RTC without waiting for the expiration of his period to appeal and for the further reason that the MTC did not fix the amount of this bond. Rule on the motion for execution. A. Motion for execution granted. D's failure to file a supersedeas bond is a grund for the immediate execution of the judgment against him. D should have filed a supersedeas bond before he perfected his appeal, this appeal having been perfected as to him upon his filing of his notice of appeal. (Rule 41, Sec 9) As to the amount of the bond, the MTC did not have to expressly or specifically fix the amount of the supersedeas bond because this is equivalent to the amount of rentals, damages and costs stated in the judgment and this is the rentals of P50,000.00 a month from 01 April 1997 until the date of the judgment. (Chua v CA, 286 SCRA 437 [1st Div., 1998]).

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- Prof. Bautista

REMEDIAL LAW REVIEW Past exams Civil Procedure Prof. Antonio R. Bautista XVII. SPECIAL CIVIL ACTIONS
Quo warranto Q: Relator A: Rule 66 Sec. 3 Foreclosure of real estate mortgage

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Q. Mortgagee extrajudicially foreclosed a real estate mortgage bidded for and purchased the property at the auction sale and obtained a new TCT in his name after the lapse of one year from the registration of the certificate of sale which was issued to him at the foreclosure sale. Mortgagor now brings an action to annul the extrajudicial sale and to cancel the mortgagee's new TCT on the following grounds: a.) That the notice of sale was not posted at the place where the mortgaged property was located; b.) That no personal notice of the extrajudicial foreclosure was furnished the mortgagor; and c.) That the purchase price was grossly inadequate. Q. Is the plaintiff's complaint well-grounded? (10%) [1999 Midterm XIX]

A. No. Under Act No. 3135, as amended which is the law governing extrajudicial foreclosure of real estate mortgages, there is no requirement of personal notice to the mortgagor, and as far as notice is concerned, it is enough that it be posted in at least 3 public places of the municipality or city where the property is situated and it is not required that the notice be posted at the site of the property itself. The supposed inadequacy of the purchase price is immaterial since there is a right to redeem and therefore a lower bid price would make it easier for the property owner to effect the redemption or sell his right to redeem and thus recover his loss. (See Abrina vs. PNB, 95 O.G. p. 4068 [CA; 1995], citing DBP vs. Vda. De Moll, 43 SCRA 82 [1972]) Forcible entry and detainer Q: May an inferior court grant a writ of preliminary mandatory injunction in an unlawful detainer case? A: Yes. See R70 S15. Q: In an ejectment case, the MTC ordered the defendant to vacate the leased premises and to pay a monthly rental plus atty's fees. On appeal, defendant deposited the current rentals with the RTC. But the RTC granted plaintiff's motion for execution on the ground of defendant's failure to file a supersedeas bond. Is the order of execution correct? A: No. R70 S19 requires a supersedeas bond only if there are rentals in arrears. The atty's fees need not be covered by a supersedeas bond. [De Laureano v. Adil; 72 SCRA 148 (1976)] Q: A and B inherited from their father, C, a parcel of land in 1985. In 1992, D forcibly entered into and took possession of the property. May A by himself and without including B as his co-plaintiff bring an action for ejectment against D?

Kung nag-si-strip recitation tayo, hubad na kayong lahat.

- Prof. Bautista

REMEDIAL LAW REVIEW Past exams Civil Procedure Prof. Antonio R. Bautista
A: Yes. Anyone of the co-owners may bring an action in ejectment. (Art. 487, CC) Q: Can a MTC award moral and exemplary damages in an unlawful detainer case?

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A: No. The only damages that can be recovered in an unlawful detainer suit are the fair rental value or the reasonable compensation for the use and occupation of the real property. Other damages must be claimed in an ordinary action. [Felisilda v. Villanueva; 139 SCRA 431 (1985)] Q: Unlawful detainer action by P against D was decided in favor of P by the MTC. On P's motion, MTC granted execution pending appeal for D's failure to post a supersedeas bond. D challenged the validity of the immediate execution for having been issued without any previous notice to him. Rule on the validity of the order of execution. A: Order of immediate execution is proper. MTC is not duty-bound to notify D of immediate enforcement of the appealed decision. It is the prevailing party moving for execution pending appeal who is obliged to serve a copy of such motion on the adverse party's counsel. [Delos Santos v. Montesa; 221 SCRA 15 (1993)] Q: P filed a complaint for unlawful detainer against D in the MTC. In his complaint, P prayed for judgment ordering D to vacate the leased premises and to surrender them to P, declaring the residential building constructed on the lot by D as forfeited in favor of P and adjudging D liable to pay accrued rentals and P5,000 atty's fees to P. After D filed his answer, the MTC rendered a judgment on the pleadings granting all the reliefs prayed for in P's complaint. Is this judgment assailable on any jurisdictional ground? A: (No clear answer. Note on pencil says: ownership) Q. When and under what conditions may a court issue a demolition order? (5%) Q. T was leasing his apartment from L at P5,000/month under a written contract for 1 year. One month before the expiration of the lease, L served a demand upon T to vacate the premises upon its expiry because he was going to demolish the building and erect in its place a new building. T refused to vacate. In consequence, L's building plans were delayed. So, L brought an action for unlawful detainer against T and obtained judgment therein directing T to pay him the P5,000 stipulated rental and P500 a day for every day of delay as damages until he finally vacates the premises plus P10,000 atty's fees. Is the decision objectionable in any way? (10%) A. Yes. The award of P500 a day for damages cannot properly be made in an unlawful detainer action where the only damages recoverable are those which are caused by the loss of the use and occupation of the property and not such damages as may be recovered only by the plaintiff if he were the owner and he cannot be declared as such in an unlawful detainer action. The award of atty's fees is proper. [See Reyes v. CA; 38 SCRA 138 (1971)] Q. May a person not in possession of the premises bring an action for unlawful detainer of these premises? (5%) A. Yes, as where the action is brought by a vendee or other person against whom the possession is unlawfully withheld after the expiration of termination of the right to hold possession. [See Pangilinan v. Aguilar; 43 SCRA 136 (1972)]

Kung nag-si-strip recitation tayo, hubad na kayong lahat.

- Prof. Bautista

REMEDIAL LAW REVIEW Past exams Civil Procedure Prof. Antonio R. Bautista

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Q. Can the MTC issue a writ of preliminary mandatory injunction in an action of unlawful detainer? (5%) A. No. Art. 359, NCC authorizes an MTC to issue a writ of preliminary mandatory injunction in forcible entry cases only. Q. A is the owner of a parcel of land pending registration in the RTC of Rizal. He permitted B, a family friend, to construct a small house on the land and to live therein for a period of two years only. The two-year period expired on 1 may 1994, but B failed and refused to vacate the land. Hence, on 15 June 1994, A filed an action against in the RTC of Rizal for the recovery of possession of the land. B filed a motion to dismiss the case on the ground that the proper action was for unlawful detainer and not for recovery of possession inasmuch as the alleged detainer of the property was for a period of less than one year at the time the action was commenced. Is the motion well founded? (1994 Midterm Exam Ib) A. A plenary action to recover possession (accion publiciana) may be filed even before the expiration of the one-year period from dispossession. Moreover, if B has a claim of ownership over the land in question, the action was properly filed in the RTC since the question of possession cannot be decided without first deciding the question of ownership. Q. A and B inherited from their father, C, a parcel of land in 1985. In 1993, D forcibly entered into and took possession of the property. May A by himself and without including B as his co-plaintiff, bring an action for ejectment against D? (1994 Midterm Exam IIb; 1993 Midterm Exam VIIIb) A. Yes, anyone of the co-owners may bring an action in ejectment. (Article 487, Civil Code) Q. In an action for ejectment by P against D in the MTC, judgment ordering D to vacate the premises and to pay all accrued and accruing rentals was served on both parties on 01 July 1995. On 10 July 1995, D filed a motion for reconsideration of the judgment on the ground that the MTC had no jurisdiction over the case since the issue of ownership was inextricably involved in the case and the issue of possession could not be resolved without resolving this issue of ownership. The MTC denied D's motion for reconsideration and the denial order was served on D on 01 September 1995. The next day, 02 September 1995, D filed his notice of appeal to the RTC from the MTC ejectment decision. (a) How should the RTC resolve the appeal? (1996 Midterm Exam IX) A. The RTC should dismiss the appeal. XXXXX (illegible) (b) Suppose the MTC had motu proprio and without any hearing, dismissed P's ejectment complaint for lack of jurisdiction, and that it was P instead who had timely appealed this dismissal order to the RTC, how should the RTC resolve P's appeal? (1996 Midterm Exam Xa) A. It may upon appellate review of the dismissal order affirm or reverse it but in case of reversal the case shall be remanded for further proceedings (Rule 40, Sec. 10). Q. Action in the MTC for unlawful detainer. Plaintiff rests his right to possession of the property in dispute upon his claim of ownership, which claim in turn is based on a purported contract of sale with right to repurchase admittedly executed by defendant but claimed by him to be a mere simulation to cloak a mortgage obligation tainted with usury. If this contract was really a sale subject to repurchase and the repurchase as, as alleged by plaintiff, not been made within the time stipulated, plaintiff would already be the owner

Kung nag-si-strip recitation tayo, hubad na kayong lahat.

- Prof. Bautista

REMEDIAL LAW REVIEW Past exams Civil Procedure Prof. Antonio R. Bautista

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of the property sold and, as such, entitled to its possession. On the other hand, if the contract was, as defendants claim, in reality a mere mortgage, then the defendants would still be a the owner of the property and could not, therefore, be regarded as mere lessees. After trial, the MTC dismissed the case for lack of jurisdiction on the ground that the case involves a question of ownership. Is the dismissal correct? (1993 Midterm Exam IX) Q. On 01 April 1999, P filed in the MTC an action for forcible entry against D alleging that on 15 March 1999, he purchased this parcel but that on 20 March 1999 but that on 20 March 1999 he found out that D took possession of this parcel under the pretext that he is the owner thereof and that D refused to surrender possession of the land despite demands. D filed his answer denying the material allegations of the complaint and, by way of special and affirmative defenses, averred that the MTC has no jurisdiction over the subject matter of the action because it is not for forcible entry but an accion publiciana and that the deed of sale under which P claims ownership is a forgery. Does MTC have jurisdiction over the case? (10%) [1999 Midterm XX] A. No. For a complaint for forcible entry to fall within the jurisdiction of the MTC, it must allege plaintiff's prior physical possession of the property as well as that he was deprived of such possession. But here, P merely alleged that on 20 March 1999, he found out that D took possession of the parcel of land and refused to surrender its possession to him; he did not allege that P was in prior physical possession. Moreover, P's pretended right to the possession of the disputed property ultimately rests upon his claim of ownership, a claim based upon a purported contract of sale the genuineness of which is disputed by D, so that the case, in the final analysis, hinges on a question of ownership and is therefore not cognizable by the MTC. (See Rimando vs. Borebor, 95 o.g., p. 911 [CA, 1994]) Q. The MTC rendered judgment in an unlawful detainer case in plaintiff's favor ordering the defendant to vacate the premises and to pay rentals in arrears. Defendant duly appealed from this judgment to the RTC but upon his failure to deposit the requisite supersedeas bond with the MTC, the MTC issued a writ of execution ordering the execution of the appealed judgment with respect to the restoration of possession. Was the writ of execution validly issued? [1999 UP Barops IX ] A. No. The MTC has no jurisdiction to issue the execution writ. The appeal has already been perfected. I t is the RTC which should issue the writ of execution. (Rule 70, Sec. 19) Contempt Q. By virtue of an execution of the judgment in an ejectment case, defendant was successfully ousted from the property in litigation and plaintiff was lawfully placed in possession thereof. But 7 years later, defendant re-entered the property and forcibly took over possession. Plaintiff now moves that defendant be declared in indirect contempt. Rule on the motion. [1999 UP Barops V] A. Motion granted. The defendant violated Section 3(b) of Rule 71 when, after being ousted from the property in litigation and the plaintiff being lawfully placed in possession, he re-enters the property and forcibly took over possession.

Kung nag-si-strip recitation tayo, hubad na kayong lahat.

- Prof. Bautista