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UP L AW BAR REVIEWER
REMEDIAL
LAW
REMEDIAL LAW TEAM 2012 Subject Head |Eden Catherine Mopia Civ Pro Subject Heads | Gianna De Jesus Samantha Sy Subject Writers | Marijo Alcala Jian Boller Althea Oaminal Giselle Mauhay Zharmai Garcia Tina Reyes Joseph Go II Marie Cristine Reyes Nickie Bolos Mae Ann Acha Ma-anne Rosales Jill Hernandez Gene Lopez Joanne Batimana LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible Noel Luciano RM Meneses Jenin Velasquez Mara Villegas Naomi Quimpo Leslie Octaviano Yas Refran Cris Bernardino Layout Head| Graciello Timothy Reyes
Civil Procedure
BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao Mark Xavier Oyales | Acads Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Miranda (D) |Special Lectures Patricia Madarang Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo Jose Lacas |Logistics Angelo Bernard Ngo Annalee Toda|HR Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Krizel Malabanan Karren de Chavez |Bar Candidates Welfare Karina Kirstie Paola Ayco Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano Katrina Rivera |Hotel Operations Marijo Alcala Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva Charlaine Latorre |Food Kris Francisco Rimban Elvin Salindo |Transpo Paula Plaza |Linkages
Civil Procedure
REMEDIAL LAW
Criminal Procedure Civil Procedure Evidence Special Proceedings
General Principles Jurisdiction I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. Actions Cause of Action Parties to Civil Actions Venue Pleadings Summons Motions Dismissal of Actions Pre-Trial Intervention Subpoena Modes of Discovery Trial Demurrer to Evidence Judgments and Final Orders Post-Judgment Remedies Execution, Satisfaction and Effect of Judgments XVIII. Provisional Remedies XIX. Special Civil Actions
Land registration cases, Cadastral cases, Naturalization cases, Insolvency proceedings Other cases not herein provided for
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Except by analogy or in a suppletory character and whenever practicable and convenient [Rule 4, Sec. 4] Prospectivity/Retroactivity The Rules of Court are not penal statutes and cannot be given retroactive effect [Bermejo v Barrios (1970)]. Rules of procedure may be made applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. [In the Matter to Declare in Contempt of Court Hon. Simeon Datumanong (2006)].
GENERAL PRINCIPLES
A. Concept of Remedial Law B. Substantive Law as Distinguished from Remedial Law C. Rule-making Power of the Supreme Court D. Nature of Philippine Courts
REMEDIAL LAW REVIEWER 1. Limitations on the rule-making power of the Supreme Court
Sec 5(5) of Art. VIII of the Constitution sets forth the limitations to the power: [SUS] - that the rules shall provide a simplified and inexpensive procedure for speedy disposition of cases; - that the rules shall be uniform for courts of the same grade; and - that the rules shall not diminish, increase or modify substantive rights. then pending, EXCEPT to the extent that in the opinion of the Court their application would not be feasible or would work injustice. [Riano citing Rule 114]
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The circumstances of the court are not affected by the circumstance that would affect the judge. The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it. In other words, the judge may resign, become incapacitated, or be disqualified to hold office, but the court remains. The death of the judge does not mean the death of the court [Riano citing ABC Davao Auto Supply v. CA (1998)].
Courts of Original and Appellate jurisdiction Courts of General and Special jurisdiction Constitutional and statutory courts Superior and Inferior courts Superior courts Courts which have the power of review or supervision over another and lower court. Inferior courts Those which, in relation to another court, are lower in rank and subject to review and supervision by the latter. [Regalado] Courts of record and not of record
f.
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4. Courts of jurisdiction
original
and
appellate
Courts of original jurisdiction Those courts in which, under the law, actions or proceedings may be originally commenced. Courts of appellate jurisdiction Courts which have the power to review on appeal the decisions or orders of a lower court. [Regalado]
5. Courts jurisdiction
of
general
and
special
or
Courts of general jurisdiction Those competent to decide their own jurisdiction and to take cognizance of all kinds of cases, unless otherwise provided by the law or Rules. Courts of special or limited jurisdiction Those which have no power to decide their own jurisdiction and can only try cases permitted by statute. [Regalado]
The principle holds that courts of equal and coordinate jurisdiction cannot interfere with each others orders [Lapu-lapu Development and Housing Corp. v. Group Management Corp.] The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review [Villamor v. Salas]. The doctrine of non-interference applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is co-equal with the RTC in terms of rank and stature, and logically beyond the control of the latter [Phil Spinster Corp. v. Cagayan Electric Power].
JURISDICTION
A. B. C. D. Jurisdiction over the parties Jurisdiction over the subject matter Jurisdiction over the issues Jurisdiction over the res or property in litigation E. Jurisdiction of Courts F. Jurisdiction over small claims, cases covered by the rules on Summary Procedure and Barangay Conciliation G. Totality Rule
Jurisdiction Jurisdiction is defined as the authority to try, hear and decide a case [Tolentino v. Leviste (2004)]. Judicial power includes the duty of the courts of justice: [Art 8, Sec. 1, Consti] To settle actual controversies involving rights which are legally demandable and enforceable;
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B. Jurisdiction matter
over
the
subject
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the
res
or
Refers to the courts jurisdiction over the thing or the property which is the subject of the litigation. Acquired either by - actual or constructive seizure by the court of the thing in question, thus placing it in custodia legis (e.g.attachment or garnishment) or - by provision of law which recognizes in the court the power to deal with the property or subject-matter within its territorial jurisdiction (e.g. land registration) [Regalado]
Specific jurisdiction
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E. Jurisdiction of Courts
1. Supreme Court
The judicial power shall be vested in one SC and in such lower courts as may be established by law. [Art. 8, Sec. 1, Consti] Powers of the Supreme Court [Art. 8, Sec. 5, Consti] a. EXERCISE original jurisdiction over: Cases affecting ambassadors and other public ministers and consuls; - RTC also has concurrent jurisdiction Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. b. Review/revise/reverse/modify/affirm on appeal or certiorari, final judgments/orders of lower courts In: All cases in which the constitutionality/validity of any treaty, international or executive agreement, law, presidential decree/proclamation/order/ instruction, ordinance or regulation is in question; - NOTE: power of review contemplates the ff courts: CA, Sandiganbayan, CTA, RTC, and other courts authorized by law. All cases involving the legality of any tax /impost /assessment /toll, or any penalty imposed in relation thereto; All cases in which the jurisdiction of any lower court is in issue; All criminal cases in which the penalty imposed is reclusion perpetua or higher; All cases in which only errors/questions of law are involved. Exceptions: [Josefa v. Zhandong (2003)] - The conclusion is grounded on speculations/ surmises /conjectures; - The inference is manifestly mistaken/absurd/impossible; - There is grave abuse of discretion; - The judgment is based on a misapprehension of facts; - The findings of fact are conflicting; - There is no citation of specific evidence on which the factual findings are based; - The finding of absence of facts is contradicted by the presence of evidence on record; - The findings of the CA are contrary to those of the trial court; - The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; - The findings of the CA are beyond the issues of the case; - Such findings are contrary to the admissions of both parties.
Distinction between Questions of Law and Fact [Mendoza vs Salinas (2007)] Question of lawexists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted. Question of factexists when the doubt or query invites calibration of the whole evidence considering mainly the credibility of the witnesses, and the existence and relevancy of specific surrounding circumstances, as well as their relation to each other and to the whole, and the probability of the situation c. Assign temporarily judges of lower courts to other stations as public interest may require, which shall not last 6 six months without the consent of the judge concerned. d. Order a change of venue or place of trial to avoid a miscarriage of justice. e. Promulgate rules on: Protection and enforcement of constitutional rights; Pleading/practice/procedure in all courts; Admission to the practice of law; The Integrated Bar; Legal assistance to the under-privileged. Guidelines on the rules: - Provide a simplified and inexpensive procedure for the speedy disposition of cases; - Uniform for all courts of the same grade; - Not diminish/increase/modify substantive rights. - Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the SC. f. Appoint all Judiciary officials/employees in accordance with the Civil Service Law. Constitutional commissions COMELEC and COA Unless otherwise provided by this Constitution or by law, any decision/order /ruling of each Commission may be brought to the SC on certiorari by the aggrieved party, within 30 days from receipt of a copy thereof. [Art. 9-A, Sec. 7, Consti] CSC - Judgments/decisions/orders are within the exclusive appellate jurisdiction of the CA through Rule 43. [BP 129, as amended by RA 7902] Sandiganbayan - Decisions and final orders of the Sandiganbayan shall be subject to review on certiorari by the SC in accordance with Rule 45 of the Rules. - Whenever, in any case decided, the death penalty shall have been imposed, the records shall be forwarded to the SC whether the accused shall have appealed or nor, for review and judgment. [PD 1606 Sec 7]
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b. Appellate Jurisdiction
Over final judgments, resolutions or orders of the RTC whether in the exercise of their original or appellate jurisdiction over crimes and civil cases falling within the original exclusive jurisdiction of the Sandiganbayan but which were committed by public officers below Salary Grade 27.
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NOTE: Private individuals can be sued in cases before the Sandiganbayan if they are alleged to be in conspiracy with the public officer.
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6. Family Courts
a. Exclusive Original Jurisdiction
Petitions for guardianship, custody of children, habeas corpus in relation to the latter; Petitions for adoption of children and revocation thereof; Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; Petitions for support and/ or acknowledgement; Summary judicial proceedings brought under the Family Code; Petitions for declaration of status of children as abandoned, dependent or neglected children, for voluntary or involuntary commitment of children, and for suspension, termination or restoration of parental authority under PD 603, EO 56 s. 1986 and other related laws; Cases for domestic violence against women and children, as defined therein but which do not constitute criminal offenses subject to criminal prosecution and penalties.
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b. Delegated Jurisdiction in Cadastral and Land Registration Cases [Sec. 34, BP 129]
Lots where there is no controversy/ opposition; or Contested lots the value of which does not exceed P100K. - The value is to be ascertained: o By the claimants affidavit; o By agreement of the respective claimants, if there are more than one; o From the corresponding tax declaration of the real property. - MTC decisions in cadastral and land registration cases are appealable in the same manner as RTC decisions.
8. Shariah Courts
a. Original Jurisdiction (Article 143, CMPL)
All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws; All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or aggregate value of the property; Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws; All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all
F. Jurisdiction over small claims, cases covered by the rules on Summary Procedure and Barangay Conciliation
[A.M. No. 08-8-7-SC, the Rule of Procedure for Small Claims Cases effective October 1, 2008]
1. Definition
Small claims courts are courts of limited jurisdiction that hear civil cases between private litigants [Rationale of Proposed Rule].
2. Purpose
The purpose of small claims process is to provide an inexpensive and expeditious means to settle disputes over small amounts [Riano].
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This rule governs the procedure in actions before the Metropolitan trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed One Hundred Thousand Pesos (P100,000.00) exclusive of interest and costs. [Sec. 2, Scope]
G. Totality Rule
Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transaction [Riano citing Pantranco North Express v Standard Insurance (2005)]
4. Applicability
The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts shall apply this Rule in all actions which are: purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money, and the civil aspect of criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule of 111 of the Revised Rules of Criminal Procedure. These claims or demands may be: For money owed under any of the following; - Contract of Lease; - Contract of Loan; - Contract of Services; - Contract of Sale; or - Contract of Mortgage; For damages arising from any of the following; - Fault or negligence; - Quasi-contract; or - Contract; The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 of Republic Act 7160, otherwise known as the Local Government Code of 1991. [Sec. 4, Applicability]
CIVIL PROCEDURE
I. ACTIONS
Actions, in general: An ordinary suit in a court of justice by which one party prosecutes another for the enforcement/ protection of a right or the prevention/redress of a wrong [Santos vs. Vda. De Caparas, (1959)] Action vs Cause of action (Asked in the 1999 Bar Exam) Cause of action A cause of action is the basis of the action filed [Rule 2, Sec.1] Fact or combination of facts which affords a party a right to judicial interference in his behalf. [Into vs. Valle (2005)] Action Ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prosecution or redress of a wrong
5. Prohibited Pleadings
The following pleadings, motions, and petitions shall not be allowed in the cases covered by this Rule: Motion to dismiss the compliant except on the ground of lack of jurisdiction; Motion for a bill of particulars; Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; Petition for relief from judgment; Motion for extension of time to file pleadings, affidavits, or any other paper; Memoranda; Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; Motion to declare the defendant in default; Dilatory motions for postponement; Reply; Third-party complaints; and Interventions. [Sec. 14, Prohibited pleadings and motions]
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Founded on privity of real estate Filed in the court where the property (or any portion thereof) is situated
Founded both
on
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Judgment is binding only upon parties impleaded or their successors in interest Ex: Action for specific performance; action to recover money or property (real or personal)
NOTE: There can be no right of action without a cause of action being first established [Regalado citing Espaol v. The Chairman of PVA (1985)]
The question of whether the trial court has jurisdiction depends on the nature of the action, i.e., whether the action is in personam, in rem, or quasi in rem. [Riano citing Biaco v. Philippine Countryside Rural Bank (2007)] The distinction is important to determine whether or not jurisdiction over the person of the defendant is required and consequently to determine the type of summons to be employed. [Riano citing Gomez v. Court of Appeals (2004)]
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It can be used as ground for a MTD based on the failure of complaint to state a cause of action. [Rule 16 (1) (g)]
Parties to a civil action PLAINTIFF One having interest in the matter of the action or in obtaining the relief demanded; the claiming party or the original claiming party and is the one who files the complaint [Riano]; does not exclusively apply to the original plaintiff [Rinao]; may refer to the claiming party, the counter-claimant, the crossclaimant, or the third (fourth, etc.)-party plaintiff [Rule 3, Sec.1] DEFENDANT One claiming an interest in the controversy or the subject thereof adverse to the plaintiff. The term may also include [Rule 3, Sec 1): - UNWILLING CO-PLAINTIFF A party who should be joined as plaintiff but whose consent cannot be obtained. He may be made a defendant and the reason therefore shall be stated in the complaint. [Rule 3, Sec. 10] - The original plaintiff becoming a defendant to the original defendants counterclaim; also refers to the corss-defendant, or the third (fourth, etc.)-party defendant. [Rule 3, Sec 1]
1. Real parties in interest; indispensable parties; representatives as parties; necessary parties; indigent parties; alternative defendants
Real party in interest [Rule 3, Sec.2] - The party who stands to be benefited/injured by the judgment in the suit; - The party entitled to the avails of the suit. Rules: o Every action must be prosecuted or defended in the name of the real party in interest. [Rule 3, Sec.2]
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They are those with such an interest in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence.
- Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader is under obligation to: (i) set forth the name of the necessary party, if known, and (ii) state the reason why the necessary party is omitted. [Riano citing Rule 3, Sec. 9 par 1] - The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party [Rule 3, Sec. 9 par 3] Indigent Party [Rule 3, Sec. 21] - INDIGENT One who has no money or property sufficient and available for food, shelter and basic necessities. - While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing, it may be contested by the adverse party at any time before judgment is rendered. o If the court determines after hearing that the party declared indigent has sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. - The authority to litigate as an indigent shall include an exemption from: o Payment of docket fees and other lawful fees; o Payment of TSN. - The amount of docket and other lawful fees is a lien on any judgment rendered in favor of indigent party, unless court otherwise provides. Alternative Defendants [Rule 3, Sec. 13] - Where the plaintiff is uncertain against whom of several persons he is entitled to relief, he may join any or all of them in the alternative,
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4. Class suit
Requisites [Rule 3, Sec. 12] - Subject matter of the controversy is one of common/general interest to many persons; - The persons are so numerous that it is impracticable to join them all as parties (i.e. impracticable to bring them all before the court); - Parties bringing the class suit are sufficiently numerous and representative of the class and can fully protect the interests of all concerned; - The representative sues/defends for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. [Rule 3, Sec. 12] If a class suit is improperly brought, the action is subject to dismissal regardless of the cause of action [Rule 16, Sec 1 (d)]. A taxpayer's suit or a stockholder's derivative suit is in the nature of a class suit, although subject to the other requisites of the corresponding governing law especially on the issue of locus standi. [Regalado] There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual sugar planters for an allegedly libelous article in an international magazine. There is no common or general interest in reputation of a specific individual. Each of the sugar planters has a separate and distinct reputation in the community not shared by the others. [Riano citing Newsweek, Inc. v. Intermediate Appellate court (1986)] A class suit does not require a commonality of interest in the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation. [Riano citing Mathay v. Consolidated Bank &Trust Company (1974)] Class Suit There is a single cause of action pertaining to numerous persons. Permissive Joinder of Parties There are multiple causes of action separately belonging to several persons.
3. Misjoinder parties
and non-joinder
of
A party is misjoined when he is made a party to the action although he should not be impleaded. A party is not joined when he is supposed to be joined but is not impleaded in the action. (Riano) Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action. [Rule 3, Sec. 11] Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. [Rule 3, Sec.11] Any claim against a misjoined party may be severed and proceeded with separately. [Rule 3, Sec. 11] Non-joinder of an indispensable party is not a ground for outright dismissal. Reasonable opportunity must be given for his inclusion by amendment of the complaint [Cortez v Avila (1957)]. Objections to defects in parties should be made at the earliest opportunity. The moment such defect becomes apparent, a motion to strike the names of the parties must be made. Objections to misjoinder cannot be raised for the first time on appeal [Regalado citing Garcia v Chua]. The rule on misjoinder or non-joinder of parties does not comprehend whimsical and irrational dropping or adding of parties in a complaint. What it really contemplates is erroneous or mistaken non-joinder and misjoinder or parties. The rule presupposes that the original inclusion
CLASS SUIT AND DERIVATIVE SUIT, COMPARED (Asked in the 2005 Bar Examination) CLASS SUIT DERIVATIVE SUIT
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without
Requisites [Rule 3, Sec.15] There are 2 or more persons not organized as a juridical entity; They enter into a transaction; A wrong is committed against a 3rd person in the course of such transaction. Effect: Persons associated in an entity without juridical personality may be sued under the name by which they are generally/commonly known, but they cannot sue under such name. [Rule 3, Sec. 15] The service of summons may be effected upon all the defendants by serving upon any of them, or upon the person in charge of the office or place of business maintained under such name. [Rule 14, Sec. 8]
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IV. VENUE
Venue is the place, or the geographical are where an action is to be filed and tried. In civil cases, it relates only to the place of the suit and not to the jurisdiction of the court. [Riano citing Manila Railroad Company v. Attorney General, (1911)]
before
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1. Kinds of Pleadings
Pleadings allowed [RULE 6, SEC. 2] 1) Complaint; 2) Answer; 3) Counterclaim; 4) Cross-claim; 5) 3rd-party Complaint, 6) Complaint-in-intervention; 7) Reply;
V. PLEADINGS
1. Kinds of Pleadings 2. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure 3. Parts of a pleading 4. Allegations in a pleading 5. Effect of failure to plead 6. Default 7. Filing and Service of pleadings 8. Amendment
Definition Pleadings are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment [Rule 6, Sec. 1] Pleading Purpose: To submit a claim/defense for appropriate judgment May be initiatory Motion Purpose: To apply for an order not included in the judgment Cannot be initiatory as they are always made in a case already filed in
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A permissive counterclaim requires the payment of docket fees. [Sun Insurance v. Asuncion (1989)] A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the complaint. [Gojo v. Goyala (1970)]
i. Compulsory counterclaim
Requisites of a compulsory counterclaim [Rule 6, Sec 7] (Asked in the 1998 bar exam) It must arise out of, or be necessarily connected with, the transaction/occurrence that is the subject matter of the opposing party's claim; It does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction; It must be within the courts jurisdiction both as to the amount and the nature. [Regalado, citing Quintanilla v CA (1997)] General rule: A compulsory counterclaim not set up in the answer is deemed barred. Exception: If it is a counterclaim which either matured or was acquired by a party after serving his answer. In this case, it may be pleaded by filing a supplemental answer or pleading before judgment. [Rule 11, Sec. 9]
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the the
Tests to determine whether the 3rd-party complaint is in respect of plaintiff's claim [Capayas v. CFI (1946)] WON it arises out of the same transaction on which the plaintiff's claim is based, or although arising out of another/different transaction, is connected with the plaintiffs claim; WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiffs claim against the original defendant; WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiffs claim. NOTE: Leave of court to file a 3rd-party complaint may be obtained by motion under Rule 15. Summons on 3rd (4th/etc.) party defendant must be served for the court to obtain jurisdiction over his person, since he is not an original party. Where the trial court has jurisdiction over the main case, it also has jurisdiction over the 3rdparty complaint, regardless of the amount involved as a 3rd-party complaint is merely auxiliary to and is a continuation of the main action. [Republic v. Central Surety (1968)] A 3rd-party complaint is not proper in an action for declaratory relief.
f. Complaint-in-intervention
Pleadings in intervention [Rule 19, Sec. 3] COMPLAINT-IN-INTERVENTION If intervenor asserts a claim against either or all of the original parties. ANSWER-IN-INTERVENTION If intervenor unites with the defending party in resisting a claim against the latter. Definition INTERVENTION is a remedy by which a third party, not originally impleaded in a proceeding, becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding. Its purpose is "to settle in one action and by a single judgment the whole controversy (among) the persons involved." [First Philippine Holdings v. Sandiganbayan (1996); Rule 19] When allowed Intervention shall be allowed when a person has: a legal interest in the matter in litigation; or in the success of any of the parties; or an interest against the parties; and
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2. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure
Under the Revised Rules on Summary Procedure the only pleadings allowed to be filed are: complaints; compulsory counterclaims and cross-claims pleaded in the answer; and the answers thereto. [Sec. 3] Prohibited pleadings, motions or petitions: Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with required barangay conciliation proceedings; Motion for a bill of particulars; Motion for new trial, or for reconsideration of a judgment, or for opening of trial; Petition for relief from judgment; Motion for extension of time to file pleadings, affidavits or any other paper; Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; Motion to declare the defendant in default; Dilatory motions for postponement; Reply; Third party complaints; and Interventions. [Sec. 19] Forms used under the Rule of Procedure under Small Claims Cases: Instead of filing complaint, a Statement of Claim using Form 1-SCC shall be filed [Sec. 5] Answer shall be filed by way of a Response using Form 3-SCC [Sec. 10] Defendant may file counterclaim if he possesses a claim against the plaintiff that (a) is within the coverage of this Rule, exclusive of interest and costs; (b) arises out of the same transaction or event that is the subject matter of the plaintiffs claim; (c) does not require for its adjudication the joinder of third parties; and (d) is not the subject of another pending action, the claim shall be filed as a counterclaim in the Response; otherwise, the defendant shall be barred from suit on the counterclaim. The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence,
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4. Allegations in a pleading
a. Manner of making allegations
In general [RULE 8, SEC. 1] In a methodical and logical form. Plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim/defense. Omit evidentiary facts. If defense relied on is based on law, cite the provisions and their applicability. Condition precedent - a general averment of the performance or occurrence of all conditions precedent shall be sufficient [RULE 8, SEC. 3] Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts - Circumstances constituting fraud or mistake must be stated with particularity while malice, intent, knowledge or other condition of the mind of a person may be averred generally [RULE 8, SEC. 5] Facts that may be Averred Generally Conditions precedent; but there must still be an allegation that the specific condition precedent has been complied with, otherwise it will be dismissed for lack of cause of action; [Rule 8, Sec 3] Capacity to sue or be sued; Capacity to sue or be sued in a representative capacity; [Rule 8, Sec 4] Legal existence of an organization; - A party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by specific denial which shall include supporting particulars within the pleader's knowledge. [Rule 8, Sec 4] Malice/intent/knowledge or other condition of the mind; [Rule 8, sec 5] Judgments of domestic/foreign courts, tribunals, boards or officers (without need to show jurisdiction); [Rule 8, Sec 6] Official documents/acts. [Rule 8, Sec 9] Facts that must be Averred Particularly Circumstances showing fraud/mistake averments of fraud/mistake [Rule 8, Sec 5] in all
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c. Specific denials
Three Ways of Making a Specific Denial SPECIFIC ABSOLUTE DENIAL by specifically denying the averment and, whenever practicable, setting forth the substance of the matters relied upon for such denial. PARTIAL SPECIFIC DENIAL part admission and part denial; DISAVOWAL OF KNOWLEDGE by an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party's pleading. This does not apply where the fact as to which want of knowledge is asserted is, to the knowledge of the court, so plain and necessarily within the defendant's knowledge that his averment of ignorance must be palpably untrue. NOTE: General rule: Allegations not specifically denied are deemed admitted [Rule 8, Sec. 11] Exceptions: Allegations as to the amount of unliquidated damages; Allegations immaterial to the cause of action; Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. [Rule 8, Sec. 12] Conclusion of law. Kinds of denial (Asked in the 2004 Bar Exam) SPECIFIC DENIAL Specifies each material allegation of fact the truth of which he does not admit, and sets forth the substance of the matters upon which he relies to support his denial. [Rule 8, Sec. 10]
compulsory
Compulsory counterclaim General Rule: A compulsory counterclaim not set up is considered barred. [Rule 9, Sec. 2] Exception: If due to oversight, inadvertence, excusable neglect, etc. the compulsory counterclaim, with leave of court, may be set up by amendment before judgment. [Rule 11, Sec. 10] Cross-claim A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2]
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Definition: Failure of the defendant to answer within the proper period. It is not his failure to appear nor his failure to present evidence (Asked in the 2000 and 2001 Bar Exams) Order of default Issued by the court on plaintiffs motion, for failure of the defendant to file his responsive pleading seasonably Interlocutory -Not appealable Judgment by default Rendered by the court following a default order or after it received ex parte plaintiffs evidence Final Appealable
b. Effect of an order of default (Asked in the 1999 Bar Exam) [Rule 9, Sec 3(a)]
Party in default loses standing in court as a party litigant. His failure to answer operates as a waiver of right to take part in the trial, of being heard, and of presenting evidence in his favor. - If the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the withdrawal of the original complaint. - Hence, the defendant was entitled to file answer to the amended complaint as to which he was not in default. The court shall proceed to render judgment granting the claimant relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. The party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. - A defendant declared in default cannot take part in the trial, but he cannot be disqualified from testifying as a witness in favor of nondefaulting defendants. [Cavili v. Florendo (1987)] - A party in default is entitled to notice of: o Motion to declare him in default; o Order declaring him in default; o Subsequent proceedings; o Service of final orders and judgments.
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Defendant
Default by defendant (Rule 9, Sec. 3) Upon motion and notice to defendant. Requires proof of failure to answer Court to render judgment, unless it requires submission of evidence Relief awarded must be the same in nature and amount as prayed for in the complaint
e. Extent of relief
Extent of relief to be awarded The award shall not exceed the amount or be different in kind from that prayed for; nor award unliquidated damages. Rationale: It is presumed that where the relief demanded is greater or different in kind, defendant would not have allowed himself to be declared in default. Datu Samad Mangelen v. CA (1992): In a judgment based on evidence presented ex parte, judgment should not exceed the amount or be different in kind from that prayed for. On the other hand, in a judgment where an answer
Lesaca v. CA (1992): A defendant who already filed an answer cannot be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. Bayog v. Natino (1996): The Revised Rules on Summary Procedure does not provide that an answer filed after the reglementary period should be expunged from the records. As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer. The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure. Such a motion is allowed under
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Malanyaon v. Sunga (1992): Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control. Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order.
Acquisition of jurisdiction
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Personal service
d. Manner of filing
Manner of filing [Rule 13, Sec. 3] (Asked in the 2005 Bar particularly in comparison with filing in criminal actions) Personally. - By personally presenting the original to the clerk of court. - The pleading is deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing. - If a party avails of a private carrier, the date of the courts actual receipt of the pleading (not the date of delivery to the private carrier) is deemed to be the date of the filing of that pleading. [Benguet Electric Cooperative v. NLRC (1992]] By registered mail. - Filing by mail should be through the registry service (i.e. by depositing the pleading in the post office). - The pleading is deemed filed on the date it was deposited with the post office.
10 days after mailing, unless otherwise provided by the court Whichever is earlier: Actual receipt by the addressee 5 days after the addressee received 1st postmaster's notice
Service of judgments, final orders or resolutions [Rule 13, Sec. 9] By personal service; By registered mail; By publication at the expense of the prevailing party if party was summoned by publication and has failed to appear in the action. Priorities in modes of service and filing [Rule 13, Sec. 11] General rule: Personal filing and service. Resort to other modes of filing and service must be accompanied by an explanation why the service/filing was not done personally. If there is no written explanation, the paper is considered not filed.
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When service is deemed complete Personal service is deemed complete upon actual delivery [Rule 13, Sec. 10] Service by registered mail is complete upon actual receipt by the addressee or after 5 days from the date he received the first notice of the postmaster, whichever date is earlier. [Rule 13, Sec. 10] Service by ordinary mail is complete upon the expiration of 10 days after mailing, unless the court otherwise provides [Rule 13, Sec. 10] Substituted service is complete at the time of delivery of the copy to the clerk of court together with the proof of failure of both personal service and service by mail. [Rule 13, Sec. 8]
Personally
by
By registered mail
Registry receipt, and affidavit of the person who did the mailing with: Full statement of the date/place of depositing the mail in the post office in a sealed envelope addressed to the court Postage fully paid Instructions to the postmaster to return the mail to the sender after 10 days if undelivered
8. Amendment
How to amend pleadings [Rule 10, Sec. 1] Adding an allegation of a party; Adding the name of a party; Striking out an allegation of a party; Striking out the name of a party; Correcting a mistake in the name of a party; and Correcting a mistaken or inadequate allegation or description in any other respect. Purpose: That the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.
Proof of Service [Rule 13, Sec. 13] Proof of personal service shall consist of: - a written admission of the party served, or the official return of the server, OR - the affidavit of the party serving, - Content: full statement of the date, place and manner of service. Proof of service by ordinary mail: - an affidavit of the person mailing - Content: facts showing compliance with Rule 13, Sec. 7 Proof of service by registered mail
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d. Amendments to conform to or authorize presentation of evidence [Rule 10, Sec. 5] (Asked in the 2004 Bar Exam)
If issues not raised by the pleadings are tried with the express/implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Amendment of pleadings as may be necessary to cause them to conform to the evidence and to raise these issues, may be made upon motion of any party, any time (even after judgment). - But failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made.
Amendments pleadings
vis--vis
supplemental
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When an amended pleading is filed, a new copy of the entire pleading must be filed
2. Voluntary appearance
General rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons; Exception: Special appearance to file a MTD. BUT inclusion in the MTD of grounds other than LOJ over the defendants person, is not deemed a voluntary appearance. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)] Who serves the summons [rule 14, sec. 3] (1) The sheriff or his deputy; (2) Other proper court officers; (3) For justifiable reasons, any suitable person authorized by the court issuing the summons. (4) Officer having management of a jail or institution deputized as special sheriff when defendant is a prisoner [rule 14, sec. 9] Return of summons [rule 14, sec. 4] When the service has been completed, the server shall, within 5 days therefrom, serve a copy of the return (personally or by registered mail) to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. Alias summons [rule 14, sec. 5] Upon plaintiffs demand, the clerk may issue an alias summons if either: (1) Summons is returned without being served on any/all of the defendants. (2) Summons was lost. The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom, stating the reasons for the failure of service.
VI. SUMMONS
1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem 2. Voluntary appearance 3. Personal service 4. Substituted service 5. Constructive service (by publication) 6. Extra-territorial service, when allowed 7. Service upon prisoners and minors 8. Proof of service
Definition: A coercive force issued by the court to acquire jurisdiction over the person of the defendant (asked in the 1999 Bar Exam)
1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
Purpose (1) To acquire jurisdiction over the person of the defendant in a civil case; (2) To give notice to the defendant that an action has been commenced against him. Issuance of summons Upon the filing of the complaint and the payment of legal fees, the clerk of court shall issue the
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3. Personal service
Service in person on defendant (1) By handing a copy of summons to him; (2) By tendering it to him, if he refuses to receive and sign for it. [Rule 14, Sec. 6]
4. Substituted service [Rule 14, Sec. 7] (asked in the 2004 Bar Exam)
Rationale: Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable from the various incidences of state citizenship. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him. [Northwest v. CA (1995)] For a valid substituted service of summons, the following must be established in the proof of service: [Sps. Ventura v. CA (1987)] (1) Impossibility of the personal service of summons within a reasonable time; (2) Efforts made to find the defendant personally and the fact that such efforts failed; [Laus v. CA (1993)] (3) Service by leaving copy of summons either: (a) With some person of suitable age and discretion then residing in the defendants residence; (b) With some competent person in charge of the defendants office or regular place of business. For a substituted service to be valid, summons served at the defendant's residence must be served at his residence at the time of such service and not at his former place of residence. "Dwelling house" or "residence" refer to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. [Sps. Ventura v. CA (1987)] Substituted service must be used only as prescribed and in the circumstances authorized by statute. Statutes prescribing modes other than personal service of summons must be strictly complied with to give the court jurisdiction, and such compliance must appear affirmatively in the return. [Laus v. CA (1993)]
(by
Requisites (1) The action is in rem or quasi in rem; (2) Defendant's identity or whereabouts are unknown and cannot be ascertained by diligent inquiry; (3) There must be leave of court. Summons by publication in a personal action cannot confer upon the court jurisdiction over the person of the defendant, who does not voluntarily submit himself to the authority of the court. The proper recourse for the plaintiff is to locate properties of the defendant whose address is unknown and cause them to be attached. [Consolidated Plywood vs. Breve (1988)] Service of summons upon different entities See Annex A.
a. Service upon a defendant where his identity is unknown or where his whereabouts are unknown [Rule 14, Sec. 14]
With leave of court, by publication in a newspaper of general circulation
b. Service upon residents temporarily outside the Philippines [Rule 14, Sec. 16]
With leave of court, may serve extraterritorially Service of summons upon different entities Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant's residence, even if defendant was abroad at that time. The fact that the defendant did not actually receive the summons did not invalidate the service of such summons. [Montalban v. Maximo 1963]
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when
Exception: Doctrine of substantial compliance If defendant actually received summons and complaint despite all these technicalities. Proof of service If personal or substituted service: In writing by the server and shall: [Rule 14, Sec. 18] (1) Set forth the manner/place/date of service; (2) Specify any papers which have been served with the process and the name of the person who received the same; (3) Be sworn to when made by a person other than a sheriff or his deputy. If by publication: [Rule 14, Sec. 19] (1) Affidavit of the printer, his foreman, principal clerk, or the editor, business/advertising manager, with a copy of the publication attached, AND (2) Affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. Effect of non-service of summons (asked in the 2006 Bar Exam) Unless the defendant voluntarily submits to the jurisdiction of the court,non-service or irregular service of summons renders null and void all subsequent proceedings and issuances in the action from the order of default up to and including the judgment by default and the order of execution. If the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint if it does not introduce new causes of action. [Ong Peng v. Custodio 1961] But if the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment. [Atkins v. Domingo 1923] Waiver of service of summons [Rule 14, Sec. 20] General rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons; Exception: Special appearance to file a MTD. Inclusion in the MTD of grounds other than LOJ over the defendants person, is not deemed a voluntary appearance. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)] Service of summons upon different entities See Annex A.
Requisites: (Asked in the 1997 and 2008 Bar Exam) (1) Defendant does not reside or is not found in the Philippines; (2) Action either: (a) Affects the plaintiffs personal status; (b) Relates to or the subject matter of which is property within the Philippines in which defendant has a lien/interest; (c) Demands a relief which consists wholly/partially in excluding the defendant from any interest in any property within the Philippines; (d) Has defendants property in the Philippines, attached. Modes of service (1) With leave of court, serve outside the Philippines by personal service; or (2) With leave of court, serve by publication in a newspaper of general circulation, in which case copy of the summons and order of the court must also be sent by registered mail to the defendants last known address; (3) Any other manner the court deems sufficient The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer.
8. Proof of service
Return of service [Rule 14, Sec. 4] When service has been completed, the server shall serve a copy of the return within 5 days (personally or by registered mail) to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied with the proof of service. General rule: Return of service of summons immediately shifts burden of evidence from plaintiff to defendant since there is a presumption of regularity. Without return of service: Burden is on plaintiff. In the Mapa case though, while there was a return, return was patently irregular, thus no presumption of regularity could be had.
VII. MOTIONS
1. Motions in general 2. Motions for Bill of Particulars 3. Motion to Dismiss
Exception: Oral motions: (1) Made in open court; (2) In the course of a hearing/trial.
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1. Motions in general
a. Definition of a motion
An application for relief other than by a pleading [Rule 15, Sec. 1] Motion day [Rule 15, Sec. 7] Except for urgent motions, motions are scheduled for hearing: (1) On Friday afternoons; (2) Afternoon of the next working day, if Friday is a non-working day. Motion for leave to file a pleading/motion [Rule 15, Sec. 9] Must be accompanied by the pleading/motion sought to be admitted Motions not acted upon Parties and counsel should not assume that courts are bound to grant the time they pray for. After all, a motion that is not acted upon in due time is deemed denied. [Orosa v. CA (1996)]
General rule: A motion cannot pray for judgment. Exception: (1) Motion for judgment on the pleadings. (2) Motion for summary judgment. (3) Motion for judgment on demurrer to evidence.
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Definition: A motion attacking a pleading/order/ judgment/proceeding must include all objections then available. All objections not included in the motion are deemed waived. Exception: When the courts jurisdiction is in issue: (1) LOJ over subject-matter; (2) Litis pendentia; (3) Res judicata; (4) Prescription.
g. Pro-forma motions
PRO FORMA MOTION A motion failing to indicate time and date of the hearing
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Available to any person not yet a party to the action at any time after the commencement of an action, even during the proceeding, but not after the trial has been concluded
3. Motion to Dismiss
Definition A remedy of the defendant, or the responding party in general, which attacks the entire pleading and seeks its dismissal based on: (1) Grounds which are patent on the face of the complaint; (2) Defenses available to the defendant at the time of the filing of the complaint It hypothetically admits the facts stated in the complaint. It is not a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof. General rule: A court may not motu propio dismiss a case, unless a motion to that effect is filed by a party. Exception: (1) Cases where the court may dismiss a case motu propio; [Rule 9, Sec. 1] (2) Failure to prosecute; [Rule 17, Sec. 3] (3) Sec. 4, Revised Rule on Summary Procedure. Types of dismissal of action (1) MTD before answer under Rule 16; (2) MTD under Rule 17:
i. LOJ over the defendants person The objection of LOJ over the person on account of lack of service or defective service of summons, must be raised: (1) At the very first opportunity; (2) Before any voluntary appearance is made. If a defendant had not been properly summoned, the period to file a MTD for LOJ over his person does not commence to run until he voluntarily submits to the jurisdiction of the court. [Laus v. CA (1993)] Appearance of counsel is equivalent to summons, unless such is made to protest the jurisdiction of the court over the person of the defendant. If grounds other than invalid service of summons are raised, it cannot be considered as a special appearance. [De los Santos v. Montesa (1993)] ii. LOJ over the subject matter of the claim If the complaint shows on its face LOJ, the court may dismiss the case outright instead of hearing the motion. A MTD on the ground of LOJover the subject matter may be raised either: (1) Before answer; (2) After answer is filed; (3) After hearing had commenced;
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vii. Statute of limitations Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later, the court must defer decision on the motion until such time as proof may be presented on such fact of prescription. Prescription Concerned with the fact of delay A matter of time Statutory Applies in law Based on fixed time Laches Concerned with the effect of delay A matter of equity Not statutory Applies in equity Not based on fixed time
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viii. Complaint states no cause of action Failure to state a cause of action (not lack of cause of action) is the ground for a MTD. The former means there is insufficiency in the allegations in the pleading. The latter means that there is insufficiency in the factual basis of the action. The failure to state a cause of action must be evident on the face of the complaint itself. Test: Assuming the allegations and statements to be true, does the plaintiff have a valid cause of action? A MTD based upon the ground of failure to state a cause of action imports a hypothetical admission by the defendant of the facts alleged in the complaint. If the court finds the allegations of the complaint to be sufficient but doubts their veracity, it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits. A complaint containing a premature cause of action may be dismissed for failure to state a cause of action. If the suit is not brought against the real party-ininterest, a motion to dismiss may be filed on the ground that the complaint states no cause of action. [Tanpinco v. IAC (1992)] viii. Extinguished claim That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished. ix. Unenforceable claim under the statute of frauds Article 1403 (2) CC requires certain contracts to be evidenced by some note or memorandum in order to be enforceable, to wit: (a) An agreement that by its terms is not to be performed within a year from the making thereof;
b. Resolution of Motion
During the hearing of the motion, parties shall submit: [Rule 16, Sec. 2] (1) Their arguments on questions of law; (2) Their evidence on questions of fact. Exception: Those not available at that time. If the case goes to trial, such evidence presented shall automatically be part of the evidence of the party presenting the same. After the hearing, the court may either: [Rule 16, Sec. 3] (1) Dismiss the action/claim; (2) Deny the MTD; (3) Order the amendment of pleadings. The court cannot defer the resolution of the MTD for the reason that the ground relied upon is not indubitable. The courts resolution on the MTD must clearly and distinctly state the reasons therefor.
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g. Bar by dismissal
Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs: (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (h) That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished; and (i) - That the claim on which the action is founded is enforceable under the provisions of the statute of frauds shall bar the refiling of the same action or claim. [Rule 16, Sec. 5]
The case may be dismissed motu proprio or upon the defendants motion if, without justifiable cause, plaintiff fails either: (1) To appear on the date of the presentation of his evidence-in-chief on the complaint; The plaintiffs failure to appear at the trial after he has presented his evidence and rested his case does not warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to crossexamine and to object to the admissibility of evidence. [Jalover v. Ytoriaga (1977)] (2) To prosecute his action for an unreasonable length of time (nolle prosequi); The test for dismissal of a case due to failure to prosecute is WON, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. [Calalang v. CA (1993)] (3) To comply with the ROC or any court order. The dismissal has the effect of an adjudication on the merits, unless the court declares otherwise, without prejudice to the right of the defendant to prosecute his counter-claim in the same or separate action. Rule 17, Sec. 2 Dismissal is at the plaintiffs instance Dismissal is a matter of procedure, without prejudice unless otherwise stated in the court order or on plaintiffs motion for dismissal of his own complaint. Dismissal is without prejudice to the defendants right to prosecute his counterclaim in a separate action (unless within 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action). Rule 17, Sec. 3 Dismissal is not procured by plaintiff, although justified by causes imputable to him Dismissal is a matter of evidence, an adjudication on the merits
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Dismissal is without prejudice to the defendants right to prosecute his counterclaim in the same or in a separate action
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IX. PRE-TRIAL
1. 2. 3. 4. Concept of pre-trial Nature and purpose Notice of pre-trial Appearance of parties; effect of failure to appear 5. Pre-trial brief; effect of failure to appear 6. Distinction between pre-trial in civil case and pre-trial in criminal case 7. Alternative Dispute Resolution (ADR)
1. Concept of pre-trial
Definition A mandatory conference and personal confrontation before the judge between the parties litigant and their representative counsels, called by the court after the joinder of issues in a case or after the last pleading has been filed and before trial, for the purpose of settling the litigation expeditiously or simplifying the issues without sacrificing the necessary demands of justice (Asked in the 1999 Bar Examination, Examiner asked to compare this with proceedings in the Katarungang Pambarangay).
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Defendant
Default by defendant (Rule 9, Sec. 3) Upon motion and notice to defendant. Requires proof of failure to answer Court to render judgment, unless it requires submission of evidence Relief awarded must be the same in nature and amount as prayed for in the complaint
A defendant who already filed an answer cannot be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. [Lesaca v. CA (1992)] The Revised Rules on Summary Procedure does not provide that an answer filed after the reglementary period should be expunged from the records. As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer. The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure. Such a motion is allowed under Sec. 19(a) thereof. [Bayog v. Natino (1996)] Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control. Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order. [Malanyaon v. Sunga (1992)]
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6. Distinction between pre-trial in civil case and pre-trial in criminal case (Bar 1997, Riano)
Civil Case Set when the plaintiff moves ex parte to set the case for pre-trial [Rule 18, Sec. 1] Criminal Case Ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense [Rule 118, Sec. 1] Ordered by the court after arraignment and within 30 days from the sate the court acquired jurisdiction over the person of the accused [Rule 118, Sec. 1] Does not include the considering of the possibility of amicable settlement of ones criminal liability as one of its purposes [Rule 118, Sec. 1] (Stricter procedure) All agreements or admissions made or entered during the pretrial conference shall be reduced in writing and signed by both the accused and counsel; otherwise, they cannot be used against the accused. [Rule 118, Sec. 2]
7. Alternative (ADR)
Dispute
Resolution
X. INTERVENTION
1. Requisites for intervention 2. Time to intervene 3. Remedy for the denial of motion to intervene
Definition of intervention (Asked in the 2003 Bar Exam) A legal remedy whereby a person is permitted to become a party in a case, by either: Joining the plaintiff; Joining the defendant; Asserting his right against both plaintiff and defendant, considering that either: - He has a legal interest in the subject matter of the action; - He is going to be adversely affected by the disposition of the property in the custody of the court Metropolitan Bank v. Presiding Judge (1990): Intervention is a proceeding in a suit/action by which a 3rd person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them. Cario vs. Ofilada (1993): It is the act/proceeding by which a 3rd person becomes a party in a suit pending between others. It is the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings. An intervenor is a party to the action as the original parties are, and to make his right effectual he must necessarily have the same powers as the original parties. He is entitled to have the issues raised between him and the original parties tried and determined. Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest. Hence, the final dismissal of the principal action results into the dismissal of said ancillary action. Who may intervene [Rule 19, Sec. 1]
Made after the pleading has been served and filed [Rule 18, Sec. 1]
Considered the possibility of an amicable settlement as an important objective [Rule 118, Sec. 2(a)] The arrangements and admissions in the pretrial are not required to be signed by both parties and their counsels. Under the Rules, they are instead to be contained in the record of pre-trial and pre-trial order [Rule 18, Sec. 7] [AM No. 03-1-09] requires the proceedings during the preliminary conference to be recorded in the Minutes of Preliminary Conference to be signed by both parties and/or counsel. (Note: either party or his counsel is allowed to sign) The sanctions for nonappearance are imposed upon the plaintiff and the defendant [Rule 18, Sec. 4]
Sanctions are imposed upon the counsel for the accused or the prosecutor [Rule 118, Sec. 3]
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There is already a defendant among the original parties to the pending suit
2. Time to intervene
Intervention is allowed any time before TC renders judgment. [Rule 19, Sec. 2] After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the movants right. The movants remedy is to file a separate action.
Exception: When the intervenor is an indispensable party. Factors considered in allowing intervention WON intervention will unduly delay or prejudice the adjudication of the rights of the original parties. WON the intervenor's rights may be fully protected in a separate proceeding. Carino vs Ofilada (1993): The interest must be actual and material, direct and immediate; not simply contingent or expectant. It must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.
intervention:
XI. SUBPOENA
1. 2. 3. 4. Subpoena duces tecum Subpoena ad testificandum Service of subpoena Compelling attendance of Contempt 5. Quashing of subpoena
witnesses;
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of
Personal appearance in court [Rule 21, Sec. 7] A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court/officer. Application for subpoena to prisoner [Rule 21, Sec. 2] The judge/officer shall examine and study the application carefully to determine WON it is made for a valid purpose. However, no prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in a penal institution shall be brought outside for appearance/attendance in any court unless authorized by the SC. Remedy in case of witness failure to attend Upon proof of service of subpoena and of witness failure to attend, the court/judge issuing the subpoena may issue a warrant to the sheriff to arrest the witness and bring him before the court/officer where his attendance is required. [Rule 21, Sec. 8] The cost of warrant and seizure shall be paid by the witness if the court determines that the failure to attend was willful and without just excuse. Such failure shall be deemed a contempt of the court which issued the subpoena. [Rule 21, Sec. 9] If subpoena was not issued by a court, the disobedience shall be punished by applicable law or ROC. Exception: Arrest warrant and contempt not applicable to: [Rule 21, Sec. 10] A witness who resides more than 100km from his residence to the place where he is to testify. A detention prisoner, if there is no permission from the court in which his case is pending.
2. Subpoena ad testificandum
Process directed to a person, requiring him to attend and to testify at the hearing/trial of an action or at any investigation conducted by competent authority, or for the taking of his deposition.
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1. Depositions pending action; Depositions before action or pending appeal [RULES 23 and 24]
Depositions Under Rule 23 a. Meaning and purpose of deposition
Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial. The liberty of a party to avail of such modes of discovery is unrestricted if the matters inquired into are relevant and not privileged, and the inquiry is made in good faith and within the bounds of the law. Limitations would arise if the examination is conducted in bad faith; or in such a manner as to annoy, embarrass or oppress the person under examination; or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege. Under certain conditions and for certain limited purposes, it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand. [Jonathan Landoil v Mangudadatu (2006)]
b. Scope of examination
Unless otherwise provided by the court, the deponent may be examined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any party including the existence, description, nature, custody, condition and location of any books,
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be
COMMISSION Addressed to whom Any authority in a foreign country authorized therein to take down depositions Rules laid down by the court issuing the commission Preferred over letters rogatory since the process is simpler (generally, no need to resort to diplomatic channels unlike in letters rogatory)
LETTERS ROGATORY A judicial authority in the foreign country Rules laid down by such foreign judicial authority Generally resorted to when there is difficulty or impossibility of obtaining the deposition by commission (Regalado) is: of or or
The court in which the action is pending or the RTC of the place where the deposition is being taken may order the officer conducting the examination to cease from taking the deposition, or may limit the scope and manner of taking the deposition WHEN: At any time during the taking of the deposition, on the motion or petition of any party or of the deponent GROUND: that the examination is being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass or oppress the deponent or party [Rule 23, sec. 18] If the order made terminates the examination, it shall be resumed only upon the order of the court in which the action is pending.
g. When may objections to errors and irregularities be made [Rule 23, sec. 29]
Objection As to notice to parties Deposition officer disqualified is When Made Waived, unless written objection is promptly served upon party giving notice Waived, unless made before the taking of the deposition or as soon as the disqualification becomes known or could be discovered with reasonable certainty NOT waived by failure to make them before or during the taking of the deposition, unless the ground for the objection is one which might have been obviated or removed if presented at that time Waived, unless reasonable objection is made at the taking of the deposition Waived, unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of the last interrogatories Waived, unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with reasonable diligence might have been, ascertained
No deposition shall be taken before a person who [Rule 23, sec. 13] a relative within the sixth degree consanguinity or affinity, or employee or counsel of any of the parties, who is a relative within the same degree, employee of such counsel; or who is financially interested in the action.
e. Procedure
A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every party to the action stating the time and place for taking the deposition and the name and address of each person to be examined. [Rule 23, Section 15] After the notice is served, the court may make any order for the protection of the parties and the deponent. [Rule 23, Section 16] The attendance of the witnesses may be compelled by the use of subpoenas. [Rule 23, Section 1] The deponent may be examined or cross examined following the procedures for witnesses in a trial. He may be asked questions on direct, cross, re-direct or re-cross. He has the same rights as a witness and may be impeached like a court witness because Sections 3 to 18 of Rule 132 apply to deponent. [Rule 23, Section 3] The officer before whom the deposition is being taken has no authority to rule on objections
Lack of relevance, materiality and competence of the deposition to the action Error in the manner of taking the deposition Error in the form of written interrogatories
the of the
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c. Answer
The interrogatories shall be ANSWERED FULLY IN WRITING and shall be SIGNED AND SWORN TO BY THE PERSON MAKING THEM. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof unless the court on motion and for good cause shown, extends or shortens the time. [Rule 25, Sec. 2]
e. Number of interrogatories
No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. [Rule 23, Sec. 4]
f. Scope of interrogatories
Any matter not privileged, and relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.
g. Use of interrogatories
Same as Rule 23, Sec. 4 mutatis mutandis.
b. Procedure
By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or Without such leave after an answer has been served, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served, or if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf.
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d. Deferment of compliance
To avoid the implied admission, the party requested may have the compliance of the filing and service of the sworn statement be deferred by filing with court objections to the request for admission. Compliance shall be deferred until such objections are resolved by the court. [Rule 26, Sec. 2 par. 2]
e. Effect of admission
Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. [Rule 26, Sec. 3]
f. Withdrawal
The court may allow the party making an admission, whether express or implied under the Rule to withdraw or amend it upon such terms as may be just. The admitting party must file a motion to be relieved of the effects of his admissions.
of
A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same. [Rule 27, Sec. 1] The court in which the action is pending shall issue an order: which shall specify the time, place and manner
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d. Waiver or privilege
By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination.
e. Physician-Patient Privilege
Inapplicable because the results of the examination are intended to be made public. Such examination is not necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physic al or mental condition.
XIII. TRIAL
1. Adjournments and postponements 2. Requisites of motion to postpone trial a. For absence of evidence b. For illness of party or counsel 3. Agreed statement of facts 4. Order of trial; reversal of order 5. Consolidation or Severance of hearing or trial 6. Delegation of reception of evidence 7. Trial by commissioners a. Reference by consent or ordered on motion b. Powers of the commissioner c. Commissioners report; notice to parties and hearing on the report
Trial, defined A trial is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments [Acosta v. People]. A hearing is a broader term. It is not confined to the trial and presentation of the evidence because it actually embraces several stages in the litigation. It
b. Court to issue the order for examination in its discretion. c. Report of findings
If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination,
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Subpoena See separate part for Subpoena BUT please take note that Subpoenas are issued within the context of a Trial and taking depositions under Modes of Discovery.
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Where a case has been partially tried before one judge, the consolidation of the same with another related case pending before another judge who had no opportunity to observe the demeanor of the witness during trial makes the consolidation not mandatory. [PCGG v. Sandiganbayan (1992)] Severance of trial [Rule 31, Sec. 2] The court may issue separate trials for convenience or to avoid prejudice: Of any claim, cross-claim, counterclaim or 3rdparty complaint; Of any separate issue; Of any number of claims, cross-claims, counterclaims, 3rd-party complaints or issues. Statement of judge [Rule 30, Sec. 7] During the hearing/trial of the case, any statement made by the judge shall be made of record in the TSN if made with reference to the case/parties/witnesses/ counsels. Suspension of actions [Rule 30, Sec. 8] Governed by the CC provisions
of
General rule: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. Exception: The court may delegate the reception of evidence to its clerk of court who is a member of the bar in: Default hearings; Ex parte hearings; Cases where parties agree in writing. However, the clerk of court has no power to rule on objections to any question/admission of exhibits. Objections shall be resolved by the court upon submission of the clerks report and TSN within 10 days from termination of the hearing.
7. Trial by commissioners
COMMISSIONER Includes a referee, an auditor or an examiner. [Rule 32, Sec. 1] Kinds of trial by commissioner [Rule 32, Secs. 1 & 2] Reference by consent of both parties. Reference ordered on motion when: - Trial of an issue of fact requires the examination of a long account on either side - Taking of an account is necessary for the courts information before judgment, or for carrying judgment/order into effect. - A question of fact, other than upon the pleadings, arises in any stage of a case or for carrying a judgment/order into effect.
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Plaintiff's remedy would be to appeal. However, if the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Rule 33, Sec 1; Republic v. Tuvera] The appellate court should render judgment on the basis of the evidence submitted by the plaintiff. [Radiowealth Finance v. Del Rosario] Equivalent to judgment (i.e. based on the merits of the evidence presented so far)
An interlocutory order and not appealable. However, it may be the subject of a petition for certiorari for GAD under Rule 65 [Katigbak v. Sandiganbayan] Demurrer After the plaintiff rests his case Only ground: The plaintiff has shown no right to relief (i.e. evidence is insufficient)
MTD Before the service and filing of the answer Those enumerated in Rule 16
Effect
1. Ground
Definition: A species of MTD that may be invoked based on insufficiency of evidence (i.e. upon the facts and the law the plaintiff has shown no right to relief). [Rule 33, Sec. 1] It is invoked after the plaintiff has presented all the evidence available to him.
If a MTD is granted, the complaint is likewise dismissed. But, depending on the ground, the complaint may be re-filed If the MTD is denied, the defendant shall file his responsive pleading
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If the demurrer is granted, the order of dismissal is appealable If a demurrer is denied, the defendant may proceed to present his evidence
Kinds of judgment by confession: - JUDGMENT BY COGNOVIT ACTIONEM After service, the defendant, instead of entering a plea, acknowledged and confessed that the plaintiffs cause of action was just and rightful. - JUDGMENT BY CONFESSION RELICTA VERIFICATIONE After pleading and before trial, the defendant both: (a) confessed the plaintiffs cause of action and (b) withdrew his plea or other allegations, whereupon judgment was entered against him without proceeding to trial. Remedy against judgment by consent, confession or compromise is to first file a motion to set it aside; if denied, file the appropriate petition under Rule 65. JUDGMENT UPON THE MERITS - It is one that is rendered after consideration of the evidence submitted by the parties during the trial of the case. A judgment is on the merits when it amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts CLARIFICATORY JUDGMENT - It is rendered to clarify an ambiguous judgment or one difficult to comply with.
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2. Contents of a judgment
Parts of a judgment Body, Ratio decidendi, or Opinion of the court It contains the findings of facts and conclusions of law; Fallo, or Disposition of the case It is the dispositive part of the judgment that actually settles and eclares the rights and obligation sof the parties, finally, definitevely, and authoritatively [Light Rail Transit Authority v CA]; The part of the judgment that is subject to execution [Riano] Signature of the judge. Distinction Between Judgment and Opinion of the Court (ASKED IN THE 2006 BAR EXAM) A judgment (or FALLO) must be distinguished from an opinion. The latter is the informal expression of the views of the court and cannot prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So there is a distinction between the findings and conclusions of a court and its judgment. While they may constitute its decision and amount to a rendition of a judgment they are not the judgment itself. They amount to nothing more than an order for judgment, which, of course, must be distinguished from the judgment. [Freeman on Judgments, Vol. I, 5th Edition, page 6, quoted in Casilan vs. Salcedo (1969)] Conflict between the dispositive portion and body of the decision
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Qualification: This rule applies only when the dispositive part is definite, clear, and unequivocal [Union Bank v Pacific Equipmetnt Corporation] Basis: The fallo is the final order. The opinion in the body is merely a statement ordering nothing [Poland Industrial Limited v. National Development Company]
3. Judgment on the pleadings [Rule 34] (Asked in the 1999 and 2005 Bar Exams)
Grounds: If the answer either Fails to tender an issue; Note: An answer fails to tender an issue due to either: - General denial of the material allegations of the complaint; - Insufficient denial of the material allegations of the compliant. Admits the material allegations of the adverse partys pleading. Cannot be rendered motu proprio A judgment on the pleadings can be done only upon MOTION to that effect filed by the appropriate party. It cannot be rendered by the court motu proprio. Exception: If at pre-trial the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio. [Rule 18, Sec. 2(g)] When judgment on the pleadings will not apply Declaration of nullity of marriage; Annulment of marriage; Legal separation. Effect: judgment on the pleadings will not lie and material facts alleged in the complaint must always be proved Effects By moving for judgment on the pleadings, the plaintiff waives his claim for unliquidated damages (because claims for such damages must be alleged and proved). One who prays for the judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence must be understood to admit all material and relevant allegations of the opposing party and to rest his motion for judgment upon those allegations taken together with such of his own as are admitted in the pleadings. [Falcasantos v. How Suy Ching (1952)]
Genuine issue An issue of fact which calls for the presentation of evidence; as distinguished from an issue which is sham, fictitious, contrived and patently insubstantial so as not to constitute a genuine issue for trial. When the facts as pleaded appear uncontested or undisputed, then there is no real/genuine issue as to the facts. The TC cannot motu propio issue a summary judgment. A party must move for summary judgment. [Riano] Procedure [Rule 35, Sec. 3] Movant files a motion for summary judgment with supporting affidavits, depositions or admission Service to the adverse party at least 10 days the hearing Adverse party may serve opposing affidavits, depositions or admissions at least 3 days before the hearing Hearing Court shall determine if a genuine issue as to any material fact exists and if the movant is entitled to a summary judgment as a matter of law Judgment
a. for the claimant [Rule 35, Sec. 1] b. for the defendant [Rule 35, Sec. 2]
Who may file the motion Claimant Defendant When May file the motion only after the answer has been served May file the motion any time
Filing of a motion for summary judgment does not interrupt the running of the period for filing an answer. Hence, the movant must also file a Motion for Extension of Time to File Answer. Bases of summary judgment: When, upon the following, no genuine issue as to any material fact exists: Affidavits made on personal knowledge; Depositions of the adverse or a 3rd party; (Rule 23) Admissions of the adverse party; (Rule 26)
4. Summary judgments [Rule 35] (Asked in the 1986, 1989, 1996 and 1999 Bar Exams)
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10-day notice required May be interlocutory or on the merits Usually available in actions to recover a debt, or for a liquidated sum of money, or for declaratory relief
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Entry of Judgments and Final Orders [Rule 36, Sec. 2] If there is no appeal/MNT/MFR filed within the prescribed periods, the clerk of court shall enter the judgment or final order in the book of entries of judgments. Date of finality of the judgment = Date of its entry in the book Note: the periods for filing the following pleadings are reckoned from the date of entry of judgment Execution of a judgment by motion (5 years from entry) [Rule 39, Sec. 6] Petition for relief (as one of its periods, not more than 6 months from entry of the judgment or final order) [Rule 38, Sec. 3] The record: Shall contain the judgments dispositive part Shall be signed by the clerk of court with a certificate that the judgment has become final and executory. Amendments to judgment (Asked in the 2008 Bar Exams) The power to amend judgments is inherent to the court before judgment becomes final and executory. General rule: The court cannot amend the judgment once it has become final and executory. Exception:
New
Trial
or
Motion for reconsideration A motion for reconsideration under Rule 37 is directed against a judgment or final order. It is not the motion for reconsideration of interlocutory order, which often precedes a petition for certiorari under Rule 65. It does not apply to cases that fall under Summary Procedure. Contents of motion for new trial or reconsideration Rule 37, Sec.2. Contents of motion for new trial or reconsideration.The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. A motion for new trial shall be proved in the manner provided for proof of motions. A motion for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence.
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a. Grounds
Rule 37, Sec.1. Grounds of and period for filing motion for new trial or reconsideration.Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or (b) Newly discovered evidence, which could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary law. Grounds for a motion for reconsideration The evidence is insufficient to justify the decision; The damages awarded are excessive; The decision or final order is contrary to law. Form and content of a motion for reconsideration Motion for reconsideration must be in writing, a written notice of which must be served on the adverse party. It is not sufficient to mention the ground relied upon. It is necessary for the motion for reconsideration to point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. Non-compliance with this requirement would reduce the motion to a mere pro forma motion, which shall not toll the period for appeal. Grounds for motion for new trial
b. When to file
The motion must be filed within the period for appeal. The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. The 15-day period is deemed to commence upon receipt by the counsel of record,
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2. Appeals in General
a. Judgments and final orders subject to appeal
Rule 41 [as amended by A.M. 07-7-12 (2007)] SECTION 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: (a) An order denying a petition for relief or any similar motion seeking relief from judgment; (b) An interlocutory order; (c) An order disallowing or dismissing an appeal; (d) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (e) An order of execution; (f) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (g) An order dismissing an action without prejudice. In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65. SIGNIFICANCE OF THE AMENDMENT An order denying motion for new reconsideration is NOW APPEALABLE! FINAL ORDER Disposes of the matter in its entirety, leaving nothing more to be done but to enforce execution Appealable Must clearly and
c. Remedy against judgments and orders which are not appealable d. Modes of appeal
i. Ordinary appeal
trial
or
INTERLOCUTORY ORDER Does not dispose of a case completely but leaves something more to be decided upon. Not appealable except through a petition for certiorari under Rule 65 No need to comply with
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Service Specialists vs Sheriff of Manila: An appeal from the order denying the petition for relief does not stay the judgment from which relief is sought. In order to stay execution, it is necessary to obtain a writ of preliminary injunction. When case is submitted for judgment Rule 51, Sec. 1. When case deemed submitted for judgment.A case shall be deemed submitted for judgment: A. In ordinary appeals. Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or memorandum required by the Rules or by the court itself, or the expiration of the period for its filing. When such hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. B. In original actions and petitions for review. Where no comment is filed, upon the expiration of the period to comment. Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the court, or the expiration of the period for its filing. Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. The period within which a court must render a decision is mandatory [New Frontier Mines vs NLRC] Judgment Rule 51, Sec. 2. By whom rendered.The judgment shall be rendered by the members of the court who participated in the deliberation on the merits of the case before its assignment to a member for the writing of the decision. Rule 51, Sec. 3. Quorum and voting in the court. The participation of all three Justices of a division
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From QJA to CA 15 days from notice of the award, judgment, final order or resolution or from date of last publication if required by law. The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer than 15 days. Distinctions Between Rule 45 and Rule 65 Based on J. Regalados Commentary (Asked in the 1999 and 2008 Bar Exams ) Rule 45 Appeal by Certiorari Rule 65 Original Action for Certiorari 1. Issues Raised Questions of Law Grave Abuse of Discretion Amounting to Lack or Excess of Jurisdiction
2. Against What Court Action Directed Review of the judgment, award or final order on the merits Directed Against an Interlocutory Order of the court prior to appeal from the judgment, or where there is no appeal or any other plain speedy and adequate remedy Not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed.
3. Reglementary Period Must be filed within the reglementary period for appeal. 4. Effect on Proceedings Below the No effect (i.e., proceedings below continue) unless a writ of preliminary injunction or a temporary restraining order has been issued The parties are the aggrieved party against the lower court/Quasijudicial agency and the prevailing parties, who thereby respectively become the petitioner and the respondents.
Rationale: To standardize the appeal periods provided in the Rules of Court and to afford litigants fair opportunity to appeal their cases, the court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for new trial or reconsideration.
f. Period of appeal
From MTC to RTC and from RTC (original) to CA By notice of appeal: 15 days from notice of the judgment or final order By record of appeal: 30 days from notice of the judgment or final order From MTC to RTC (appellate) to CA: 15 days from notice of the judgment or final order but the Court of Appeals may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer than 15 days. 5. Parties Involved Original Parties to the action remain the same during appeal (albeit with the corresponding appellation of appellant and appellee), the lower court or quasi-judicial agency is not to be impleaded.
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MTC to RTC
No extensions allowed
This fresh period rule shall also apply to: Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. [Neypes vs. CA, (2005)] A party litigant may now file his notice of appeal either within fifteen days from receipt of the original decision or within fifteen days from the receipt of the order denying the motion for reconsideration. Being procedural in nature, Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent. [First Aqua Sugar v. BPI (2007)]
RTC to CA
MTC to RTC to CA
g. Perfection of appeal
Perfection of an appeal in the manner and within the period laid down by law is mandatory and jurisdictional. [Balgami vs. CA (2004)] Rationale: Appeal is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. It is neither a natural right nor a part of due process. Effect of failure to perfect appeal Defeats a partys right to appeal. Precludes appellate court from jurisdiction.
acquiring
Camposagrado vs. Camposagrado (2005): Failure to pay the appellate court docket fee within the
15 days from Fresh notice of the period to award, appeal judgment, from final order or denial MR resolution or or MNT QJA from date of to CA last publication if required by law OR from denial of MR or MNT 15 days from Fresh RTC notice of period to to SC judgment or appeal RTC final order from to CA OR from denial MR to SC denial of or MNT CA to petitioners SC MR or MNT. reglementary period confers only a discretionary (not mandatory) power to dismiss the proposed appeal. Such discretion should consider all attendant
The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer then 15 days. The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer then 15 days. The SC may grant a 30 day extension for justifiable reasons.
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Republic v. Bermudez-Lorino (2005): Appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. Medina vs. CA (1992): A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. Espina vs. CA (1992): However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. Appeal from MTC to RTC: the rules on perfection of appeal from RTC to CA applies. From the Regional Trial Court to CA: By notice of appeal: perfected as to party who filed notice upon filing of the same in due time - The court loses jurisdiction over the case upon perfection of appeal AND expiration of time to appeal of the other parties. By record on appeal: perfected as to the party who filed appeal and with respect to the subject matter thereof upon approval of the record filed in due time - The court loses jurisdiction upon approval of the records on appeal AND expiration of the time to appeal of the other parties From MTC to RTC (appellate jurisdiction) to CA: upon timely filing of a petition for review and the payment of the corresponding docket and other lawful fees. The RTC loses jurisdiction upon perfection of appeals filed in due time AND the expiration of time to appeal of other parties.
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l. Review of final judgments or final orders of the COA m. Review of final judgments or final orders of the COMELEC n. Review of final judgments or final orders of the CSC
The remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review thereof under Rule43 of the Rules of Court within fifteen days from notice of the resolution. [DECS v. Cuanan (2008)]
o. Review of final judgments or final orders of the Ombudsman p. Review of final judgments or final orders of the NLRC
Rule 43, Sec.2. Cases not covered.This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. NLRC judgments and final orders or resolutions are now reviewable, in the first instance, by the Court of Appeals on certiorari under Rule 65, but those of the Employees Compensation Commission should be brought to the Court of Appeals through a petition for review under this Rule. Also, appeals from the Office of the Ombudsman in administrative disciplinary cases are now covered by this Rule. [Fabian vs. Desierto (1998)]
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A resolution of the DOJ Secretary is not appealable under Rule 43. Recourse should be to the President, instead of the CA, under the established principle of exhaustion of administrative remedies. [Orosa vs. Roa (2006)] Exhaustion of administrative remedies: If an appeal/remedy obtains or is available within the administrative machinery, this should be resorted to before resort can be made to the courts. Under Rule 43, Sec. 4 the petition should be filed within 15 days from: Notice of the final order; or The date of its last publication, if publication is required by law for its effectivity; or The denial of the petitioners MFR duly filed according to the governing law of the court or agency a quo. [Villorente vs. Laiya (2005)] Under Rule 43, there is no need to implead the lower court or agency which rendered the assailed decision. [Basmayor v. Atencio (2005)] Submission of the duplicate original or certified true copy of judgment, order, resolution or ruling subject of a petition for certiorari is essential to determine whether or not the court, body or tribunal which rendered the same indeed committed grave abuse of discretion. Either a legible duplicate original or certified true copy thereof shall be submitted. If what is submitted is a copy, then it is required that the same is certified by the proper officer of the court, tribunal, agency or office involved. This is to assure that such copy is a faithful reproduction of the judgment, order, resolution or ruling subject of the petition. [Coca-cola v. Cabalo (2006)] Recourse to a petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy. Nonetheless, there are exceptions to this rule: when public welfare and the advancement of public policy dictates; when the broader interest of justice so requires; when the writs issued are null and void; or
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c. Contents of petition
Rule 38, Sec.2. Petition for relief from denial of appeal.When a judgment of final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course. Under both grounds, the petition shall be filed in the same court which rendered the judgment and in the very same case. Prayer in petition for relief from judgment: That the judgment/order/proceeding be set aside; That the appeal be given due course. Form and content of petition: Must be verified; Must be accompanied by an affidavit showing the fraud, accident, mistake or excusable negligence relied upon; The affidavit of merit accompanying the petition must also show the facts constituting the petitioners good and substantial cause of action or defense. An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not a fatal defect to warrant denial of the petition so long as the facts required to be set out also appear in the verified petition. When an affidavit of merit is not necessary: When there is lack of jurisdiction over the defendant; When there is lack of jurisdiction over the subject matter; When judgment was taken by default; When judgment was entered by mistake or was obtained by fraud; or Other similar cases. Two hearings in a petition for relief from judgment: Hearing to determine whether or not the judgment should be set aside; If option a) is in the affirmative, hearing upon the merits of the case. Other remedies after finality of judgment: Action to Annul a Judgment Certiorari Collateral Attack of a Judgment that is Void on its Face
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1. Difference between finality of judgment for purposes of appeal; for purposes of execution
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General rule: When the judgment or order becomes executory, the court cannot refuse to issue a writ of execution. Exceptions: The issuance of a writ of execution which issues as a matter of right can be countered in any of the following cases (R-I-N-S-E-D): When a PETITION FOR RELIEF or an action to enjoin judgment is filed and a preliminary injunction is prayed for and granted (Rule 38.5); When the judgment turns out to be INCOMPLETE OR IS CONDITIONAL since as a matter of law, such judgment CANNOT BE FINAL; When the judgment has been NOVATED BY THE PARTIES When SUBSEQUENT FACTS AND CIRCUMSTANCES transpire as to render such execution unjust or impossible On EQUITABLE GROUNDS as when there has been a change in the situation of the parties which makes execution INEQUITABLE. When the judgment becomes DORMANT, the 5year period under Rule 39.6 having expired without the judgment having been revived.
After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. The maximum period within which a final and executory judgment may be executed is 20 years (Rule 39.6 in relation to New Civil Code provision on prescription of judgment). Exceptions: Judgments for support WHICH DO NOT BECOME DORMANT AND WHICH CAN BE EXECUTED BY MOTION [Canonizado v. Benitez] except for support in arrears beyond 10 years from the date they become due; Contempt orders by reason of unauthorized reentry on the land by the ejected defendant [Azotes v. Blanco]; Issuance of writs of possession in FORECLOSURE CASES within the statute of limitations; Land registration proceedings (and other special proceedings), hence the right to ask for a WRIT OF POSSESSION THEREIN NEVER PRESCRIBES
b. Discretionary execution
See Annex E. General rule: Under the Rule on Discretionary Execution (also called execution pending appeal), the court rendering the judgment, if it still has jurisdiction, may exercise discretion and order execution pending appeal (Asked in the 2002 Bar Exam). It is the execution of a judgment or final order before it attains finality. The court which rendered the decision can grant an execution pending appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the filing of the motion; otherwise, the motion shall be acted upon by the appellate court. To be valid, there should be a good reason to justify the execution of the judgment pending appeal, the same to be stated in the order granting it. Exception: This rule, however, is inapplicable in the case of the Court of Appeals. The Rule on Discretionary Execution contemplates a situation where a judgment or final order rendered in the exercise of its original jurisdiction and the prevailing party in said decision seeks immediate execution during the pendency of an appeal. The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF ITS OWN DECISIONS THEREIN. Discretionary execution is allowed pending appeal of judgment or final order of the trial court upon good reasons to be stated in a special order.
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158
159
160
Remedies of a Third-Party Claimant Summary hearing before the court which authorized the execution Terceria or third-party claim filed with the sheriff Action for damages on the bond posted by the judgment creditor Independent reivindicatory action The aforementioned are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of the others. [Sy vs. Discaya (1990)] Rules regarding terceria (third-party (ASKED IN THE 2000 & 2005 BAR EXAMS) claims)
The third person whose property was levied on must make an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title. He must serve the same upon the officer making the levy and copy thereof upon the judgment
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6. Rules on Redemption
There is no right of redemption where the property sold at judicial sale is personal property. Real property sold or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: - The judgment obligor; or his successor in interest in the whole or any part of the property; - A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. [Section 27, Rule 39] Redemption can be made by either: - JUDGMENT OBLIGOR, within one year from the date of registration of the certificate of sale
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Effects of redemption [Section 29, Rule 39] If the judgment obligor redeems he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale. [Section 30, Rule 39] A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered, OR, if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds, OR an original or certified copy of any assignment necessary to establish his claim; AND an affidavit executed by him or his agent, showing the amount then actually due on the lien. [Section 31, Rule 39] Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used, or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property. The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his
of
Obligor
of
Does a Party Litigant Enjoy Any Discovery Rights After the Promulgation of Final and Executory Judgment? Yes. See Secs. 36-38, Rule 39 [Bautista] Remedies of Judgment Creditor in Aid of Execution [Sections 36-43] (Asked in the 2008 Bar Exam particularly steps to be taken if writ of execution is unsatisfied) If the execution is returned unsatisfied, he may cause the examination of the judgment debtor as to his property and income [Sec. 36] (asked in the 2002 bar exam) He may cause examination of the debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession [Sec. 37]. If after examination, the court finds the property of the judgment debtor either in his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment. A party or other person may be compelled by an order or subpoena to attend before the court or commissioner to testify as provided in sect 3637. - if the court finds the earnings of the judgment debtor are more than sufficient for his familys needs, it may order payment in installments [Sec. 40] - the court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property [Sec. 41] - if the court finds the judgment debtor had an ascertainable interest in real property either as mortgagor, mortgagee or otherwise, and his interest can be ascertained without controversy, the court may order a sale of such interest [Sec. 42]. - if the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property or denies the debt, the court may authorize the judgment creditor to institute an action to recover the property, forbid its transfer and may punish disobedience for contempt [Sec. 43] Entry of satisfaction Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, - upon the return of a writ of execution showing the full satisfaction of the judgment, or - upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel
- UNLESS a revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee or his counsel, on the face of the record of the judgment. [Sec. 44, Rule 39] Whenever a judgment is satisfied in fact, or otherwise than upon an execution on demand of the judgment obligor, - the judgment obligee or his counsel must execute and acknowledge, or indorse an admission of the satisfaction as provided in the last preceding section, - and after notice and upon motion the court may order either the judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. [Sec. 45, Rule 39]
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IN RESPECT TO THE PERSONAL, political, or legal condition or status of a particular person or his relationship to another
RES JUDICATA IN JUDGMENTS IN PERSONAM In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive: between the parties and their successors in interest, by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity. CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF ISSUES (AUTER ACTION PENDANT) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. BAR BY FORMER JUDGMENT (RES JUDICATA) There is identity of parties, subject matter CONCLUSIVENESS OF JUDGMENT Identity of parties and subject matter.
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REQUISITES OF RES JUDICATA finality of the former judgment; the court which rendered it had jurisdiction over the subject matter and the parties it must be a judgment on the merits there must be, between the first and second actions, identity of parties, subject matter and causes of action [Perez v. CA (2005)]
1. 2. 3. 4. 5. 6.
Nature of provisional remedies Jurisdiction over provisional remedies Preliminary Attachment Preliminary Injunction Receivership Replevin
Once a point of law has been established by the court, that point of law will, generally, be followed by the same court and by all courts of lower rank in subsequent cases where the same legal issue is raised
2. Jurisdiction remedies
over
provisional
All inferior courts can grant appropriate provisional remedies provided that the main action is within their jurisdiction. [B.P. 129]
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a. Grounds for issuance of writ of attachment [Rule 57.1] (Asked in 2001 and 2005)
A preliminary attachment may be applied for at the commencement of the action or at any time before the entry of judgment. It may be applied for by the plaintiff OR any proper party (including a defendant who filed a counterclaim, cross-claim, or a third party complaint) There are only specific situations where preliminary attachment may issue: Action for recovery of a specified amount of money or damages, EXCEPT moral and exemplary, - on a cause of action arising from law, contract, quasi-contract, delict, or quasidelict - against a party who is about to depart from the Philippines with intent to defraud his creditors; Action for money or property, embezzled or fraudulently misapplied or converted to his own use by either: - a public officer, an officer of a corporation, an attorney, factor, broker, agent, or clerk, in the course of his employment as such, - OR by any other person in a fiduciary capacity, or for a willful violation of duty; Action to recover the possession of property unjustly or fraudulently taken, detained or converted, - when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; NOTE: rule makes no distinction between real and personal property [Riano] Action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, OR in the performance thereof; NOTE: the delivery of counterfeit money or knowingly issuing a bounced check are considered as grounds under this rule [Riano]
Stages in the grant of preliminary attachment The court issues the order granting the application The writ of attachment issues pursuant to the order granting the writ The writ is implemented For the first two stages, jurisdiction over the person of the defendant is NOT necessary. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant. [Cuartero, supra]
b. Requisites
Case must be any of those where preliminary attachment is proper Applicant must file a motion (ex parte or with notice and hearing) Applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced; Applicant must post an attachment bond executed to the adverse party (Rule 57.3)
order
of
Issuance and contents of order of attachment [Rule 57.2] An order of attachment may be issued EITHER - ex parte or - upon motion with notice and hearing by the court in which the action is pending, It must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, EXCEPT if such party makes deposit or gives bond in an amount equal to that fixed in the order. The amount may be - sufficient to satisfy applicants demand, or - the value of the property to be attached, exclusive of costs.
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d. Manner of attaching real and personal property; when property attached is claimed by third person
Manner of attaching property [Rule 57.5] The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicants demand, UNLESS Party against whom writ is issued makes a deposit with the court from which the writ is issued, or He gives a counter-bond executed to the applicant The levy on attachment shall be preceded or contemporaneously accompanied by service on the defendant within the Philippines of: summons copy of complaint application for attachment affidavit and bond of applicant order and writ of attachment.
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4. Preliminary Injunction
a. Definitions and Differences: Preliminary Injunction and Temporary Restraining Order
A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to either refrain from a particular act or acts or require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction A suit for injunction is an action in personam. It is an ancillary or preventive remedy that is meant to be temporary and subject to the final disposition of the principal action [Riano] Purpose: To prevent future injury and maintain the status quo (i.e. the last actual, peaceable, uncontested status which preceded the pending controversy) for [Kencht vs CA, 1993] NOTE: the injunction should not establish new relations between the parties but merely reestablish the pre-existing relationship between them. TRO vs. Injunction TRO May be granted ex parte if great and irreparable injury would result otherwise INJUNCTION Cannot be granted without notice and hearing
Grounds for discharge: Debtor has posted a counter-bond or has made the requisite cash deposit [Rule 57.12]; Attachment was improperly or irregularly issued [Rule 57.13] as where there is no ground for attachment, or affidavit and/or bond filed therefore are defective or insufficient; Attachment is excessive but the discharge shall be limited to the excess [Rule 57.13]; Property attached is exempt from execution [Rules 57.2 and 57.5]; Judgment is rendered against the attaching creditor [Rule 57.19].
A TRO is issued in order to preserve the status quo until the hearing of the application for preliminary injunction. (Bacolod City Water v. Labayen 446 SCRA 110) Same requirements preliminary injunction. for application as
An application for a TRO shall be acted upon only after all parties are heard in a summary hearing, which shall be conducted within 24
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b. Requisites
Requirements for preliminary injunction [Rule 58.4] There must be a verified application The application must show facts entitling the applicant to the relief demanded. - It must establish he has a right and the act against which the injunction is directed is violative of such right (PNB v Timbol 451 SCRA 163) A bond must be filed, unless exempted, in the court where the action/proceeding is pending, in an amount to be fixed by the court (asked in the 2006 Bar exam) Prior notice and hearing for the party/person sought to be enjoined. EXCEPTIONS: - Great or irreparable injury would result to the applicant before the matter can be heard on notice. o The court may issue a TRO effective for 20 days from service on the party sought to be enjoined. o Injury is irreparable if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy. - Matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury o Judge may issue ex parte a TRO effective for 72 hours from issuance. o Within 72 hours, judge shall conduct a summary hearing to determine whether the TRO shall be extended until the application for preliminary injunction can be heard. o Maximum period of effectivity of TRO=20 days (including 72 hrs) If the application for preliminary injunction is denied or not resolved within said period, the TRO is deemed automatically vacated. EFFECTIVITY OF TRO [58.5]
c. Kinds of Injunction
i. Preliminary preventive injunction prohibits the performance of a particular act or acts When preventive injunction does not lie: To restrain collection of taxes (Valley Trading vs CA), EXCEPT where there are special circumstances that bear the existence of irreparable injury. [Churchill & Tait vs Rafferty (1915)] To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husbands obligation to give support. [Saavedra vs Estrada (1931)] To restrain a mayor proclaimed as duly elected from assuming his office. [Cereno vs Dictado (1988)] To restrain registered owners of the property from selling, disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. [Tayag vs. Lacson (2004)] Against consummated acts. [PNB vs Adi; Rivera v. Florendo, 1986; Ramos, Sr. v. CA, 1989; Zabal vs CA] EXCEPTION: If the act is of continuing nature and in derogation of plaintiffs right at the outset. Against disposing of the case on the merits [Ortigas and Company Limited Partnership vs CA (1988)] To stop the execution of judgment where the judgment was already executed. (Meneses vs Dinglasan) EXCEPTION: But where the lower court enforced its judgment before a party against whom the execution was enforced could elevate her appeal in an injunction suit, which was instituted to prevent said execution, an independent petition for injunction in the Court of Appeals is justified. [Manila Surety and Fidelity vs Teodoro (1967)] The CFI has no power to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission. [Ambrosio vs Salvador (1978)]
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EXCEPTIONS: Forcible entry and unlawful detainer cases in which the court may issue preliminary mandatory injunction [Rule 70.15] Property covered by Torrens Title when there is a clear finding of ownership and possession of the land. (GSIS vs Florendo) Other instances where writ is not available: Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts: - Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; - Bidding or awarding of contract/ project of the national government as defined under Section 2 - Commencement prosecution, execution, implementation, operation of any such contract or project; - Termination or rescission of any such contract/project; and - The undertaking or authorization of any other lawful activity necessary for such contract/project. This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. This prohibition shall NOT APPLY when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. Sec. 78, RA 9136: the implementation of the provisions of the Electric Power Industry Reform Act of 2001 shall not be restrained or enjoined except by an order issued by the Supreme Court. Sec. 1, PD 605: no court of the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction or preliminary mandatory injunction in any case involving or growing out of the issuance, approval or disapproval, revocation or suspension of, or any action whatsoever by the proper administrative official or body on concessions, licenses, permits, patents, or public grants of any kind in connection with the disposition, exploitation,
May be the main action itself, or just a provisional remedy in the main action
d. When writ may be issued e. Grounds for issuance injunction [Rule 58.3]
(ASKED IN THE 2006 BAR EXAM)
of
preliminary
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judgment a final
As a matter of course, in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue. The evidence needed to establish the requisites for a preliminary injunction need not be conclusive or complete. It is generally based on initial, incomplete evidence that gives the court an idea of the justification for the preliminary injunction pending the decision of the case on the merits. . NOTE: It does not necessarily proceed that when a writ of preliminary injunction is issued, a final injunction will follow [Urbanes vs. CA (2001)]
h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects
Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts: Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof; Commencement prosecution, execution, implementation, operation of any such contract or project; Termination or rescission of any such contract/project; and The undertaking or authorization of any other lawful activity necessary for such contract/project. This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. This prohibition shall NOT APPLY when the matter is of extreme urgency involving a
f. Grounds for objection to, or for the dissolution of injunction or restraining order
Grounds for Objection to/Motion for Dissolution of Injunction/Restraining Order [Rule 58.6] Insufficiency of application other grounds (e.g. applicants bond is insufficient/defective), upon affidavits of the party or person enjoined if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof would cause irreparable damage to the party/person enjoined, while the applicant can be fully compensated for such damages as he may suffer, provided the former files a bond
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d. Powers of a receiver
Bring and defend in such capacity actions in his own name with leave of court Take and keep possession of the property in controversy Receive rents Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver Compound for and compromise the same Make transfers Pay outstanding debts Divide the money and other property that shall remain among the persons legally entitled to receive the same Generally, to do such acts respecting the property as the court may authorize Invest funds in his hands, ONLY by order of the court upon the written consent of all the parties. [Rule 59.6] No action may be filed against a receiver without leave of the court which appointed him. Liability for refusal or neglect to deliver property to receiver Contempt; and Be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. [Rule 59.7]
Cannot be availed of if the property is in custodia legis (e.g. under attachment, seized under a search warrant). EXCEPT: when the seizure is illegal; [Bagalihog v. Fernandez (1991)] and where there is reason to believe that the seizure will not anymore be
f. Termination of receivership
Ground: the necessity for a receiver no longer exists Procedure: motu proprio or on motion of either party
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d. Sheriffs duty in the implementation of the writ; when property is claimed by third party
Disposition of Property by Sheriff The sheriff shall retain the property for 5 days. The adverse party may object to the sufficiency of the bond or surety or he may file a redelivery bond. If after 5 days and the adverse party failed to object or his redelivery bond is insufficient, the sheriff shall deliver the property to the applicant. [Rule 60.6] The defendant is entitled to the return of the property under a writ of replevin if: - He seasonably posts a redelivery bond [Rule 60.5] - Plaintiffs bond is found to be insufficient or defective and is not replaced with proper bond - Property is not delivered to the plaintiff for any reason [Rule 60.6] Where Property Claimed by Third Person When third party claims the property and such person makes affidavit of his title thereto stating his grounds, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy upon the applicant, the sheriff SHALL NOT BE BOUND to keep property under replevin or deliver property to the applicant UNLESS the applicant files a bond approved by the court in favor of the third person (the bond should not be less than the value of stated under Sec. 60.2; the court shall determine the value in case of disagreement). No claim for damages for the taking or keeping of the property may be enforced against the bond UNLESS the action is filed within 120 days from filing of the bond.
b. Requisites
Application Who may apply: party praying for the recovery of possession of personal property. Applicant need not be the owner. It is enough that he has right to its possession. (Yang vs Valdez, 177 SCRA 141) When: at the commencement of the action or before the answer [unlike attachment, injunction and support pendente lite (anytime before final judgment) and receivership (anytime even after final judgment)]. The applicant must show by his own affidavit or that of some other person who personally knows the facts: That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and The actual market value of the property. [Rule 60.2] Bond The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit. [Rule 60.2]
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4. Interpleader
Definition: A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment or the obligation [Beltran v. PHHC, 1969] Purpose To compel conflicting claimants to interplead and litigate their several claims among themselves. [Rule 62.1] To protect a person against double vexation in respect of one liability [Beltran, supra]
actions
versus
The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil action special. [Riano] Ordinary Civil Action Governed by ordinary rules Special Civil Action Also governed by ordinary rules but subject to specifically prescribed rules (Rules 62 to 71)
Some concepts applicable to ordinary civil actions are not applicable in special civil actions. E.g.: the definition of a cause of action requiring violation of a right does not appear to be relevant to the special civil action of declaratory relief and interpleader; ordinary civil actions may be filed initially in MTC or RTC depending on jurisdictional amount while some special civil actions can only be filed in MTC (forcible entry and unlawful detainer) and some cannot be commenced in MTC (certiorari, prohibition, mandamus). [Riano]
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Baguio Citizens Action vs. City Council of Baguio (1983): Non-joinder of interested persons is not a jurisdictional defect; but persons not joined shall not be prejudiced in their interests unless otherwise provided by the Rules. Commission of Customs vs. Cloribel (1977): A third-party complaint is not available in a declaratory relief. Visayan Packing vs. Reparations Commission (1987): A compulsory counterclaim may be set up in a petition for declaratory relief. Where filed in the proper RTC [Rule 63.1] not within the original jurisdiction of the Supreme Court, even if pure questions of law are involved. [Remotigue vs. Osmea (1967)]
b. When to file
Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest in the subject matter or an interest which is not disputed by the claimants. [Rule 62.1] Cannot be availed of to resolve the issue of breach of undertakings made by defendants, which should be resolved in an ordinary action for specific performance or other relief [Beltran, supra].
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6. Review of Judgments and Final Orders or Resolution of the COMELEC and COA
Scope Applicable only to judgments and final orders of the COMELEC and COA [Rule 64.1] Judgments/orders of the Civil Service Commission are now reviewable by the Court of Appeals under Rule 43, eliminating recourse to the Supreme Court (SC). [RA 7902; SC Revised Administrative Circular No. 1-95] An aggrieved party may bring the questioned judgment, etc. directly to the SC on certiorari under Rule 65. [Rule 64.2] Such petition for certiorari shall not stay the execution of the judgment, etc. sought to be reviewed unless otherwise directed by the Supreme Court [Rule 64.8] Procedure File a petition for review. When [Rule 64.3]: Within 30 days from notice of judgment/final order/resolution sought to be reviewed Filing of motion for reconsideration/new trial with Constitutional commission interrupts the 30-day period. If motion is denied, aggrieved party may file petition within remaining period, which shall not be less than 5 days from notice of denial. Form [Rule 64.5]: verified and accompanied by (annexes): a clearly legible duplicate original or certified true copy of the subject judgment, etc. certified true copies of such material portions of the record referred to in the petition other documents relevant and pertinent to the petition proof of service of a copy of the petition on the Commission and the adverse party proof of the timely payment of the docket and other lawful fees in 18 legible copies (containing plain copies of all documents attached to the original copy of the petition) Contents [Rule 64.5]: name of aggrieved party (petitioner) respondents: Commission concerned and person(s) interested in sustaining the judgment a quo facts issues involved grounds and brief arguments relied upon for
e. Proceedings remedies
considered
as
similar
i. Reformation of an instrument (Arts. 1359-1369 Civil Code) Definition: Art. 1359. When, there having been a meeting of the minds of the parties to a contract, their true intention is not expressed in the instrument purporting to embody the agreement, by reason of mistake, fraud, inequitable conduct or accident, one of the parties may ask for the reformation of the instrument to the end that such true intention may be expressed. If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the parties, the proper remedy is not reformation of the instrument but annulment of the contract. Art. 1369. The procedure for the reformation of instrument shall be governed by rules of court to be promulgated by the Supreme Court ii. Consolidation of ownership (Art. 1607 Civil Code) [Rule 63.1 par. 2] Definition: Art. 1607. In case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. iii. Quieting of title to real property (Arts. 476-481 Civil Code) Definition: Art. 476. Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud
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7. Certiorari, Mandamus
Prohibition
and
The original action of certiorari is not a substitute for appeal. [Lobite vs. Sundiam 1983] Exceptions: appeal is not a speedy and adequate remedy [Salvadores vs. Pajarillo (1947)] the orders were issued either in excess of or without jurisdiction [Aguilar vs. Tan (1970)] special considerations, i.e., public welfare or public policy [Jose vs. Zulueta (1961)] the order is a patent nullity [Marcelo vs. De Guzman (1982)] the decision in the certiorari case will avoid future litigations [St. Peter Memorial Park vs. Campos (1975)] NOTE: In the 2005 and 2008 Bar Exams, bar examinees were asked to compare Petition for review on Certiorari and Certiorari. Certiorari Suarez v. NLRC (1998): Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts may be considered. Medran vs. CA (1949): Findings of fact of CA are not binding upon SC in an original action for certiorari. Prohibition Prohibition is a preventive remedy. However, to prevent the respondent from performing the act sought to be prevented during the pendency of the proceedings for the writ, the petitioner should obtain a restraining order and/or writ of preliminary injuction. [Regalado] Enriquez v. Macadaeg, 84 Phil 674: Prohibition is the remedy where a motion to dismiss is improperly denied. Mandamus A writ of mandamus will not issue to control the exercise of official discretion or judgment, or to alter or review the action taken in the proper exercise of the discretion of judgment, for the writ cannot be used as a writ of error or other mode of direct review. However, in extreme situations generally in criminal cases, mandamus lies to compel the performance of the fiscal of discretionary functions where his actuations are tantamount to a wilful refusal to perform a required duty. [Regalado]
a. Application of Rule 65 under Rule 64 b. Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the application of Rule 65 to other tribunals, persons and officers
Rule 64 Directed only to the judgments, final orders or resolutions of COMELEC and COA Filed within 30 days from notice of the judgment The filing of a MR or a Motion for New Trial if allowed, interrupts the period for the filing of the petition for certiorari. If the motion Rule 65 Directed to any tribunal, board, or officer exercising judicial or quasi-judicial functions Filed within 60 days from notice of the judgment The period within which to file the petition if the MR or new trial is denied, is 60 days from notice of the denial of the motion.
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a. Definitions and distinctions b. Requisites c. When petition for certiorari, prohibition and mandamus is proper
See Annex F. Procedure FILE PETITION FOR CERTIORARI / PROHIBITION / MANDAMUS. When filed: Not later than 60 days from notice of judgment/order/resolution If a motion for reconsideration/new trial is filed, the 60-day period shall be counted from notice of denial of motion. Extension may be granted for compelling reasons, not exceeding 15 days. [Rule 65.4] Where filed: Supreme Court Court of Appeals - If it involves the acts of a quasi-judicial agency, the petition shall be filed only in the CA, unless otherwise provided by law or the Rules. Regional Trial Court, if it relates to acts / omissions of a lower court / corporation / board / officer / person. Sandiganbayan, if it is in aid of its appellate jurisdiction. [Rule 65.4] ORDER TO COMMENT If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent(s) to comment on the petition within 10 days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. [Rule 65.6] HEARING OR MEMORANDA After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. [Rule 65.8]
d. Injunctive relief
Rule 65.7 provides for the issuance of a temporary restraining order, and not only for a writ of preliminary injunction, but such order shall be subject to the rules on the grounds and duration thereof. [Regalado]
e. Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus distinguished from Injunction; when and where to file petition
CERTIORARI DISTINGUISHED FROM APPEAL CERTIORARI APPEAL Proper to correct errors Proper where error is not of jurisdiction one of jurisdiction but an committed by lower error of law or fact courts, grave abuse of which is a mistake of discretion which is judgment tantamount to lack of jurisdiction Certiorari invokes Appeal when filed original jurisdiction of invokes the appellate the court jurisdiction of the court Within 60 days from Filed within period of notice of judgment, appeal order or resolution An original and Continuation of the independent action original case Impleads the tribunal, Parties to an appeal are court, board or officer the original parties of the case PROHIBITION DISTINGUISHED FROM INJUNCTION PROHIBITION INJUNCTION Directed to the court or Directed against a party tribunal directing it to to the action
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ROC Rule 66 Solicitor General or Public Prosecutor in behalf of the Republic; Individual By SolGen: RTC Manila, CA or SC; Otherwise, RTC with jurisdiction over territorial area where respondent resides, CA or SC
COMELEC, if against election of a Member of Congress, Regional, Provincial or City Officer; appropriate RTC or MTC, if against a municipal or barangay officer Within 10 days after proclamation of results Ineligibility disloyalty to Republic or the
for
Period for filing Against whom, grounds Within 1 year from ouster, or from the time the right to the position arose A person, who usurps, intrudes into or unlawfully holds or exercises a public office, position or franchise; A public officer, who does or suffers an act which, by provision of law, constitutes a ground for forfeiture of office How commenced By a verified petition [Rule 66.1] By whom/against whom
General rule: A motion for reconsideration must first be availed of before certiorari to enable the lower court to correct its mistakes without the intervention of the lower courts. [BA Finance vs. Pineda (1982)] Exceptions: the order is a patent nullity [Vigan Elec. Light vs. Public Service Commission (1964)] the questions raised in the certiorari have been duly raised and passed upon by the lower court [Fortich-Celdran vs. Celdran (1967)] or are the same as those raised and passed upon in the lower court [Pajo vs. Ago (1960)] there is an urgent necessity for the resolution of the question and delay would prejudice the interests of the government [Vivo vs.Cloribel (1966)] the MR would be useless [People vs. Palacio (1960)] the petitioner was deprived of due process and there is extreme urgency for relief [Luzon Surety vs. Marbella (1960)] the proceeding was ex parte in which the petitioner had no opportunity to object [Republic vs. Maglanoc (1963)] the issue raised is purely a question of law or where the public interest is involved [PALEA vs. PAL (1982)]
g. Reliefs petitioner is entitled to h. Actions/Omissions of MTC/RTC in election cases i. Where to file petition j. Effects of filing of an unmeritorious petition
8. Quo Warranto
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in
every
action
for
i. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts. This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. These orders are final and therefore appealable. [Municipality of Bian v. Garcia (1989)] It includes an inquiry into the propriety of the expropriation its necessity and public purpose. [Riano] ii. Determination of just compensation. This is done with the assistance of not more than three (3) commissioners. The order fixing just compensation is also final and appealable (Ibid). Just compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint, whichever comes first. Ansaldo v. Tantuico (1990): There is taking when the owner is actually deprived or dispossessed of his property; when there is a practical destruction or a material impairment of the value of his property or when he is deprived of the ordinary use thereof. Bardillon v. Bgy. Masili (2003): An expropriation suit is incapable of pecuniary estimation. Accordingly, it falls within the jurisdiction of RTCs, regardless of the value of the subject property.
9. Expropriation
a. Matters to expropriation allege in complaint for
The complaint for expropriation must be VERIFIED. Contents: The right and purpose of expropriation Description of the real or personal property sought to be expropriated;
c. When plaintiff can immediately enter into possession of the real property, in relation to RA 8974
Sec. 4. of RA 8974 otherwise known as An Act to facilitate the acquisition of right-of-way, site or location for national government infrastructure projects and for the purposes: [w]henever it is necessary to acquire real property for the right-of-
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Prohibit ed
A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. A defendant waives all defenses and objections not so alleged, but the court, in the interest of justice, may permit amendments to the answer not to be made later than ten (10) days from filing thereof. At the trial of the issue of just compensation, whether the defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. [Rule 66.3]
f. Order of Expropriation
It declares that the plaintiff has a lawful right to take the property sought to be expropriated for the public use or purpose described in the complaint, upon payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint whichever is earlier. It is issued by the court in which the complaint for expropriation is filed when:
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184
The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. [Rule 67.13]
10. Foreclosure of Real Estate Mortgage (Asked in the 2003 Bar Exam)
The cause of action in a foreclosure suit is generally the non-payment of the mortgage loan, but it may be on other grounds which under the contract warrant the foreclosure, such as the violation of the other conditions therein. Foreclosure may be made: judicially governed by Rule 68 Extrajudicially proper only when so provided in contracts in accordance with Act. No. 3135; governed by A.M. No. 99-10-05-0. Monte de Piedad v. Rodrigo, 56 Phil 301: A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. If a mortgage contract covers several distinct parcels of land situated in different provinces, the action may be brought in the RTC of any of the provinces and the judgment will be enforceable against any of the parcels of land involved.
d. Deficiency judgment
i. Instances when court cannot render deficiency judgment
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IF THE PROPERTY IS REDEEMED The Deed of Redemption shall be registered with the Registry of Deeds and a brief memorandum thereof shall be made by the Registrar of Deeds on said certificate of title.
No deficiency judgment because there is no judicial proceeding BUT deficiency can be recovered Recovery of deficiency is by an independent action
The mortgagor may exercise his equity of redemption in judicial foreclosure before the sale is confirmed by the court (Raymundo v
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Confirmation of the sale of mortgaged real property vests title in the purchaser including the equity of redemption, it retroacts to the date of the sale. It cuts off all the rights or interests of the mortgagor and of the mortgagee. [Lozame v Amores (1985]]. The motion for the confirmation of the sale requires a hearing to grant an opportunity to the mortgagor to show cause why the sale should not be confirmed [Tiglao v Botones, 90 Phil 275], as by proof of irregularities therein or of gross inadequacy of the price. Lack of notice vitiates the confirmation of the sale.
11. Partition
Partition of property may be: Extrajudicial by agreement Judicial compulsory; governed by Rule 69 Even if the parties resorted to judicial partition, they may still make an amicable partition of the property. [Secs. 2 and 12]
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e. Partition by commissioners; Appointment of commissioners, Commissioners report; Court action upon commissioners report
Appointment of commissioners If the parties are unable to agree upon the partition, the court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. [Rule 69.3] Duties of Commissioners [Rule 69.4]: view and examine the real estate, after due notice to the parties to attend at such view and examination hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof. General rule: If the commissioners should determine that the real estate cannot be divided without prejudice to the interests of the parties, the court may order that the property be assigned to one of the parties willing to take the same PROVIDED he pays to the other parties such amounts as the commissioners deem equitable EXCEPTION: if one of the parties asks that the property be sold instead of being so assigned, then the court shall ORDER the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. [Rule 69.5] Commissioners report The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties or the sale of the same. Upon filing the report, the clerk of court shall serve copies thereof on all interested parties with notice that they are allowed 10 days within which to file objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court accepts the commissioners report and rendered judgment thereon. [Rule 69.6] Upon the expiration of the 10-day period, or even before the expiration of such period but after the
d. Order of agreement
partition
and
partition
by
Order of partition After trial, if the court finds that the plaintiff has the right to the property subject of partition, it shall issue an order demanding the partition of the real estate among all the parties in interest. [Sec. 2] (Refers to 1st stage of partition) Partition by agreement After the issuance of the order of partition, the parties will then be asked if they agree to make partition of the property among themselves. If they agree, proper instruments of conveyance will be executed to effect the partition. After the execution of instruments of conveyance, the court shall confirm the partition through a final order. The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. [Rule 69.2] If they do not agree, there will be a partition by commissioners. A party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. [Rule 69.8]
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12. Forcible Entry and Unlawful Detainer (Asked in the 2000 Bar Exam in Relation to a Pending Action for Specific Performance)
a. Definitions and Distinction
IF THE WHOLE PROPERTY IS ASSIGNED TO ONE OF THE PARTIES AFTER PAYMENT IF PROPERTY IS SOLD AND SALE IS CONFIRMED BY THE COURT
Judgment shall vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties. Judgment shall Judgment shall state the name vest the real of the purchaser estate in the or purchasers purchaser(s), and a definite making the description of payment(s) free the parcels of from the claims real estate sold of any parties to to each the action. purchaser A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated. [Rule 69.11]
Forcible Entry Resorted to when a person is deprived of possession of any land or building by (1) force, (2) intimidation, (3) strategy, (4) threat, or (5) stealth. (FISTS) Must be brought at any time within 1 year after such unlawful deprivation in the proper MTC against the person unlawfully depriving him of possession or against any person or persons claiming under them. Action must be for the restitution of possession of property together with damages and costs. [Rule 70.1] The owners of a property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it. They must file the appropriate action in court and should not take the law into their own hands. [Laurora v. Sterling Technopark (2003)] Unlawful Detainer Resorted to when a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld, after the expiration or termination of the right to hold possession by virtue of an express or implied contract. May also be brought by the legal representative or assigns of any such lessor, vendor, vendee, or other persons. Must be brought at any time within 1 year after the unlawful withholding of possession in the proper Municipal Trial Court against the person unlawfully withholding possession or persons claiming under them. Action must be for the restitution of possession of property together with damages and costs. [Rule 70.1] FORCIBLE ENTRY Possession becomes unlawful right from the very start (i.e. from the time of entry) as he acquires possession by FISTS. UNLAWFUL DETAINER Possession was lawful at first but later becomes illegal, as when the lease contract has expired and the lessee refuses to vacate the premises despite
h. Prescription of action
The right of action to demand partition does not prescribe [De Castro v. Echarri, 20 Phil 23], EXCEPT where one of the interested parties openly and
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d. Who may institute the action and when; against whom the action may be maintained
Who may File, When, Against Whom Who: A person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person When: At any time within 1 year after such unlawful deprivation or withholding of possession in the proper MTC Against Whom: The person or persons unlawfully withholding or depriving of possession, OR any person or persons claiming under them [Rule 70.1]
e. Pleadings allowed
Pleadings must be verified. [Rule 70.4] Allowed pleadings [Rule 70.4]: Complaint Compulsory Counterclaim pleaded in the answer Cross-claim pleaded in the answer Answer
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191
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13. Contempt
Definition Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect of, to interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a disobedience to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience to the courts order but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice.
a. Kinds of contempt
Accdg to the Manner of Commission - Direct - Indirect Accdg to Nature - Civil - Criminal
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c. Remedy against direct contempt; penalty d. Remedy against indirect contempt; penalty
proceedings
are
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Failure to obey a subpoena duly served; The rescue or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. [Rule 71.3]
punishable
as
indirect
Misbehavior of an officer of the court in the performance of his official duties or in his official transactions; Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts to or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice; Assuming to be an attorney or an officer of the court, and acting as such without authority;
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2.
3. 4.
Service upon prisoner [Rule 14, Sec. 9] Service upon domestic private juridical entity [Rule 14, Sec. 11]
5.
Service upon foreign private juridical entity [Rule 14, Sec. 12] Service upon corporations [Rule 14, Sec. 13] Extraterritorial service [Rule 14, Sec. 15] public
6.
7.
8.
9.
Service upon a resident temporarily out of the Philippines [Rule 14, Sec. 16] Service upon a defendant whose identity or whereabouts are unknown [Rule 14, Sec. 14]
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Nature
When issued W/N it is necessary to show good cause Grounds for quashal
To any person Only during trial Issued by a court before whom the witness is required to attend, or court where the deposition is to be taken or clerk or body authorized by law or any justice of the Supreme Court or CA in any case or investigation pending within the Philippines Issued upon request to the clerk (no notice) NO unreasonable, oppressive, irrelevant, or the person in whose behalf the subpoena is issued fails to advance the reasonable costs of the production thereof Constitutes contempt of the court from which the subpoena is issued
Issued upon motion (application with notice to the other party) YES No good cause shown
Consequence disobedience
of
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PARTY OR WITNESS IN RULE 23 (depositions de bene esse), RULE 24 (depositions in perpetuam rei memoriam) PARTY or an OFFICER OR MANAGING AGENT OF A PARTY in RULE 23, 24, 25 who refuses to obey an order made under RULE 29 Section 1 PARTY who refuses to obey an order under RULE 27 to produce any document or other thing for inspection, or to permit entry upon land PARTY who refuses to obey an order made under RULE 28 requiring him to take a physical examination (APPLIES TO all modes of discovery except RULE 26 ON REQUEST FOR ADMISSION BY AN ADVERSE PARTY)
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PARTY OR AN OFFICER OR MANAGING AGENT OF A PARTY RULE 23 (depositions de bene esse), RULE 24 (depositions in perpetuam rei memoriam) RULE 25 INTERROGATORIES TO PARTIES
Applies to all provisions in Rule 29 requiring a noncompliant party or witness (who represents the Republic in an official capacity) to pay.
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If an appeal has been perfected and duly resolv ed, there are two ways by whic h execution can be carried out
Prevailing Party applies (by motion) for a writ of execution, whic h is granted by the judge since it is a matter of right
Prevailing party files a motion in the court of origin , submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party1.
The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution.
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Situation 1: Trial Court still has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be.
In Situation1, prevailing party files a MOTION WITH NOTICE TO THE ADVERSE PARTY in the Trial Court. In Situation2, prevailing party files the motion for execution pending appeal in the appellate court.
Discretionary execution may be granted only for GOOD REASONS to be stated in a SPECIAL ORDER.
NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given m ay be proceeded against on motion with notice to the surety
IN CASE the judgment w hic h was executed pending appeal is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of dam ages as equity and justice m ay w arrant under the circumstances
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verified alleging the facts with certainty PRAYER: that judgment be rendered commanding the respondent, immediately or some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. contains a certificate of nonforum shopping.
If respondent does not have the legal power to determine the case If respondent has the legal power to determine the case but oversteps such power If respondent has the legal power to determine the case but acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment
A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. [Silvestre vs. Torres (1946)]
2
When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings. xxx
3
If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. [Rule 65.5]
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Punishment
Remedy