Remedial Law Concepts

I.
General Principles
A. Concept of remedial law
Q: What is the concept of remedial law? 2% (2006 Bar Question) SUGGESTED ANSWER:
The concept of Remedial Law is that it is a branch of public law which prescribes the procedural
rules to be observed in litigations, whether civil, criminal, or administrative, and in
special proceedings, as well as the remedies or reliefs available in each case.
Q: How are remedial laws implemented in our system of government? 2% (2006

Bar Question)
SUGGESTED ANSWER:
Remedial Laws are implemented in our system of government through the judicial system,
including the prosecutory service, our courts and quasi-judicial agencies.
X’s action for sum of money against Y amounting to P80,000.00 accrued before the
effectivity of the rule providing for shortened procedure in adjudicating claims that do
not exceed P100,000.00. X filed his action after the rule took effect. Will the new rule apply to
his case? (2011 BAR)
(A) No since what applies is the rule in force at the time the cause of action
accrued.
(B) No, since new procedural rules cover only cases where the issues have already been joined.
(C) Yes, since procedural rules have retroactive effect.
(D) Yes, since procedural rules generally apply prospectively to pending cases.
B. Substantive law vis-á-vis remedial law
Q: Distinguish between substantive law and remedial, law. 2% (2006 Bar

Question) SUGGESTED ANSWER:
Substantive law is that part of the law which creates, defines and regulates rights and obligations,
the violation of which gives rise to a cause of action. On the other hand, remedial law prescribes
the method of enforcing rights or obtaining redress for their invasion (cf. Bustos v. Lucero, 81 Phil.
540, 650 [1948]).
C. Nature of Philippine courts
1. Principle of judicial hierarchy
Which of the following NOT TRUE regarding the doctrine of judicial hierarchy? (2011 BAR)
(A) It derives from a specific and mandatory provision of substantive law.
(B) The Supreme Court may disregard the doctrine in cases of national interest and matters of
serious implications.
(C) A higher court will not entertain direct recourse to it if redress can be obtained in the
appropriate courts.
(D) The reason for it is the need for higher courts to devote more time to matters within their
exclusive jurisdiction.
Q: What is meant by “hierarchy of courts”? (1996 Bar Question) SUGGESTED ANSWER:

By “hierarchy of-courts” is meant that while the Supreme Court, the Court of Appeals and the
Regional Trial Courts have concurrent original jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto and habeas corpus, such concurrence does not
accord litigants unrestrained freedom of choice of the court to which application therefor may be
directed. The application should be filed with the court of lower level unless the importance of tHe
issue involved deserves the action of the court of higher level. (Uy vs. Contreras. 237 SCRA 167)
(NOTE: The rules and cases are cited merely for reference purposes)
2. Doctrine of non-interference or doctrine of judicial stability
What is the doctrine of judicial stability or non interference? (2011 BAR)

(A) Once jurisdiction has attached to a court, it can not be deprived of it by subsequent happenings
or events.
(B) Courts will not hear and decide cases involving issues that come within the jurisdiction of
administrative tribunals.
(C) No court has the authority to interfere by injunction with the judgment of another court of
coordinate jurisdiction.
(D) A higher court will not entertain direct resort to it unless the redress sought cannot be obtained
from the appropriate court.
Q: AB. as mother and in her capacity as legal guardian of her legitimate minor son, CD,
brought action for support against EF, as father of CD and AB's lawfully wedded husband.
EF filed his answer denying his paternity with counterclaim for damages. Subsequently, AB
filed a manifestation in court that in view of the denial made by EF, would be futile to pursue
the case against EF. AB agreed to move for the dismissal of the complaint, subject to the
condition that EF will withdraw his counterclaim for damages. MB and EF filed a joint
motion to
dismiss. The court dismissed the case with prejudice. Later on, minor son CD, represented by
AB, filed another complaint for support against EF. EF filed a motion to dismiss on the
ground of res judicata.
A. Is res judicata a valid ground for dismissal of the second complaint? Explain your answer.
(3%)
B. What are the essential requisites of res Judicata (2%) (2000 Bar Question)
SUGGESTED ANSWER:
A. No, res Judicata is not a defense in an action for support even if the first case was dismissed
with prejudice on a Joint motion to dismiss. The plaintiff’s mother agreed to the dismissal of the
complaint for support in view of the defendants answer denying his paternity with a counterclaim
for damages. This was in the nature of a compromise of the right of support which Is prohibited by
law. (Art.
2035. Civil Code; De AsIs v. Court of Appeals, 303 SCRA 176 ( 19991].
B. The essential requisites of res judicata are:
1. the judgment or order rendered must be final;

2. the court rendering the same must have Jurisdiction of the subject matter and of the parties;
3. it must be a judgment or order on the merits; and
4. there must be between the two cases identity of parties, identity of subject matter, and
identity of causes of action. [San Diego v. Cardona, 70 Phil.
281 (1940].)
A judicial compromise has the effect of and is immediately executory
and is not appealable. (2012 BAR)
5. Estoppel;
6. Conclusiveness of judgment;
7. Res Judicata;
8. Stare decisis.
Q: Evelyn filed a complaint for a sum of money against Joan but the complaint was later
dismissed for failure to prosecute “within a reasonable length of time.” Thereafter, Evelyn
filed another case based on the same facts against Joan. Joan moved to dismiss the same on
the ground that the cause of action therein is barred by a prior judgment (res judicata).
Evelyn opposed the motion claiming that res judicata has not set in since Joan was not served
with summons and the complaint in the first case was earlier dismissed, so that the trial court
never acquired jurisdiction over her person and, consequently, over the case. How would you
decide the motion of Joan? Explain. (1989 Bar Question)
Answer:
The motion to dismiss is denied. One of the essential requisites of res judicata is jurisdiction over
the parties. Inasmuch as Joan was not served with the summons in the
first case which was earlier dismissed, the court did not acquire jurisdiction over her
person and, hence, the dismissal was without prejudice to the filing of another action against her.
(Republic Planters Bank vs. Molina, September 28,1988)
II. Jurisdiction
A. Over the parties
1. How jurisdiction over the plaintiff is acquired
Q: Amorsolo, a Filipino citizen permanently residing in New York City, filed with the RTC of
Lipa City a Complaint for Rescission of Contract of Sale of Land against Brigido, a resident
of Barangay San Miguel, Sto. Tomas, Batangas. The subject property, located in Barangay
Talisay, Lipa City, has an assessed value of P19,700.00. Appended to the complaint is
Amorsolo’s verification and certification of non-forum shopping executed in New York
City, duly notarized by Mr. Joseph Brown, Esq., a notary public in the State of New York.
Brigido filed a motion to dismiss the complaint on the following grounds:
[a] The court cannot acquire jurisdiction over the person of Amorsolo because he is not a
resident of the Philippines; (2%) (2009 Bar Question)
SUGGESTEDANSWER-
The first ground raised lacks merit because jurisdiction over the person of a plaintiff is acquired
by the court upon the filing of plaintiffs complaint therewith. Residency or citizenship is not a
requirement for filing a complaint, because plaintiff thereby submits to the jurisdiction of the court.
Q: How is jurisdiction acquired by a court over the person of: (1994 Bar Question)
1) the plaintiff in a special civil action for mandamus? SUGGESTED ANSWER:

1) Jurisdiction is acquired over the plaintiff in a special civil action for mandamus by the
commencement or filing of the action.
ALTERNATIVEANSWER:
Such Jurisdiction is acquired by the filing of the action and the payment of the prescribed docket
fees.
Q: Pernito, also known in the community as Peregrino filed a petition for change of name to
Pedro. The name Peregrino appeared in the body of the petition but not in the caption. When
the petition was published, the caption and the body of the petition were merely lifted
verbatim, so that as published, the petition’s caption still did not contain Peregrino as the
petitioner’s alias. The government lawyer filed a motion to dismiss on the ground that,
notwithstanding publication for the requisite number of times, the court did not acquire
Jurisdiction over the petition because petitioner’s alias (Peregrino) did not appear in the
published caption. The court denied the motion to dismiss with the ruling that there was
substantial compliance with the law and that the omission of the alias in the caption may be
deemed de minimis because the alias was clearly set forth in the petition itself.
Was the court correct in denying the motion to dismiss? Explain. (1992 Bar
Question)
SUGGESTED ANSWER:
No, the failure of the petitioner to include his alias (Peregrino) in the caption is a jurisdictional
defect and the inclusion of the alias in the body of the petition does not cure said defect. The reason
for the rule is that the ordinary reader only glances fleetingly at the caption in a special proceeding
and only if the caption strikes him does he proceed to read the body of the petition; hence, .he will
probably not notice the other names or aliases of the petitioner. (Gil Go vs. Republic, 77 SCRA 65)
2. How jurisdiction over the defendant is acquired
Q: How is jurisdiction acquired by a court over the person of: (1994 Bar Question)
a. x x x
b. the defendant in an action for unlawful detainer?
c. a non-resident defendant who is not found in the Philippines, in an action for
compulsory acknowledgment of his natural child?
SUGGESTEDANSWER:
a. x x x
b. Jurisdiction is acquired over the person of the defendant in an action for unlawful detainer by
the proper service of summons on him or by his voluntary
appearance.
c. Jurisdiction cannot be acquired over the person of a non-resident defendant who is not found in
the Philippines in an action for compulsory acknowledgment of his natural child because he is
outside the jurisdiction of the court.
ALTERNATIVEANSWER:
Such jurisdiction can be acquired by the voluntary appearance of the non- resident defendant
who is not found in the Philippines.
Lani filed an action for partition and accounting in the Regional Trial Court (RTC) of
Manila against her sister Mary Rose, who is a resident of Singapore and is not found in the
Philippines. Upon motion, the court ordered the publication of the summons for three weeks
in a local tabloid, Bulgar. Linda, an OFW vacationing in the Philippines, saw the summons in
Bulgar and brought a copy of the tabloid when she returned to Singapore, Linda showed the
tabloid and the page containing the summons to Mary Rose, who said, “Yes I know, my
kumare Anita scanned and e-mailed that page of Bulgar to me!”
Did the court acquire jurisdiction over Mary Rose? (2008 Bar Question) SUGGESTED
ANSWER:
No, the court did not acquire jurisdiction over Mary Rose, the defendant. While serving summons
by publication is allowed in this case under Section 15, Rule 14 of the Rules of Court, the required
sending of the copy of the summons and the order of the Court by registered mail to the last known
address of the same defendant has not been followed; service of summons by publication under
said Rule has not been complied with; thus, there is no valid service.
ALTERNATIVE ANSWER:
Yes, the court acquired jurisdiction over Mary Rose because service of summons by publications is
allowed when the defendant does not reside and is not found in the Philippines and the action is in
rem or quasi in rem under Sec. 15, Rule 14 of 1997
Rules of Civil Procedure. Besides, Mary Rose had actual knowledge of the complaint against her
(PCIB v. Alejandro, 533 SCRA 738 [2007]).
B. Over the subject matter
1. Error of jurisdiction as distinguished from error of judgment
Q: Distinguish between error of judgment and error of jurisdiction. (1989 Bar

Question) Answer:
An error of judgment is one which the court may commit in the exercise of its jurisdiction. Such an
error does not deprive the court of jurisdiction and is correctible only by appeal; whereas an error
of jurisdiction is one which the court acts without or in excess of its jurisdiction. Such an error
renders an order or judgment void or voidable
and is correctible by the special civil action of certiorari. De la Cruz vs. Moir, 36 Phil.
213; Cochingyan vs. Cloribel, 76 SCRA 361).
2. How jurisdiction is conferred and determined
Q: A complaint filed for recovery of possession of real property also prayed for moral and
exemplary damages the amounts of which have been left to the court’s discretion, and for
actual damages the amount of which shall be proven at the trial. The docket fees for the
action involving the real property have been paid, but not those for the related damages, the
amounts of which have not been specified. (1991 Bar Question)
(a) Did the court acquire Jurisdiction over the action? Answer:
(a) Yes, because the docket fees for the action involving the real property have been
paid.
(b) May the action be dismissed? Answer; Answer:
(b) No, because the court has acquired jurisdiction over the action. However, the claim for
damages, as to which no amounts were specified may be expunged, or the plaintiff
may be allowed to amend the complaint so as to specify the amount of damages and to
pay the requisite fees within the prescriptive period. (Tacay v. RTC, 180 SCRA 433)
3. Objections to jurisdiction over the subject matter
Q: In a suit to recover a sum of money, plaintiff filed his complaint with the Regional Trial
Court instead of with the Municipal Trial Court which has jurisdiction over the case because
of the amount involved. The defendant did not file a motion to dismiss. Neither did the
Regional Trial Court dismiss the case on its own initiative. At the pre-trial hearing, defendant
tried to have the case settled. With the effective help of the presiding judge, he was able to
forge with the plaintiff a compromise agreement which stipulated that he would pay in twelve
(12) equal monthly installments starting the first day of the following month, each to become
due without need of any demand. Failure to pay any installment when due will render the
entire amount enforceable by writ of execution. Judgment was rendered on the basis of the
compromise agreement and was then served on the parties.
Defendant failed to pay the first installment as it fell due. Plaintiff thereupon sought
execution which was granted, and the corresponding writ of execution was issued.
Defendant filed in due form a motion to set aside the writ of execution upon the
contention that the court had no power to order the issuance
of the writ of execution because it has no jurisdiction over the nature of the action, an issue
that can be raised at any stage of the case.
The court granted the defendant’s motion and accordingly set aside the writ of execution.
Did the court act correctly? Why? (1992 Bar Question) Suggested Answer:
Yes, the court acted correctly, because jurisdiction over the subject matter or nature of an action
cannot be conferred by agreement of the parties. Whenever it appears that the court has no
jurisdiction over the subject matter, it shall dismiss the action,
Another Acceptable Answer:
Inasmuch as the defendant did not file a motion to dismiss and the parties submitted a compromise
agreement on the basis of which judgment was rendered, the defendant is estopped to raise the
question of jurisdiction. (Tiyam vs. Sibonghanoy, 23
SCRA 29 and other cases)
4. Effect of estoppel on objections to jurisdiction
Q: Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the
ownership and possession of two parcels of land; one situated in Pampanga, and the other in
Bulacan.
[a] May the action prosper? Explain. (2%) (2009 Bar Question) SUGGESTED ANSWER:
NO, the action may not prosper, because under Rep. Act No. 7691, exclusive original jurisdiction
in civil actions which involve title to, or possession of real property or any interest therein is
determined on the basis of the assessed value of the land involved, whether it should be P20,OOO
in the rest of the Philippines, outside of the Manila with courts of the first level or with the-
Regional Trial Court. The assessed value of the parcel of land in Pampanga is different from the
assessed value of the land in Bulacan. What is involved is not merely a matter of venue, which is
waivable, but of a matter of jurisdiction.
However, the action may prosper if jurisdiction is not in issue, because venue can be waived.
ALTERNATIVEANSWER:
YES, if the defendant would not file a motion to dismiss on ground of improper venue and the
parties proceeded to trial.
[b] Will your answer be the same if the action was for foreclosure of the mortgage over the
two parcels of land? Why or why not? (2%)
SUGGESTED ANSWER:
NO, the answer would not be the same. The foreclosure action should be brought in the
proper court of the province where the land or any part thereof is situated, either in Pampanga or in
Bulacan. Only one foreclosure action need be filed unless each parcel of land is covered by distinct
mortgage contract.
In foreclosure suit, the cause of action is for the violation of the terms and conditions of the
mortgage contract; hence, one foreclosure suit per mortgage contract violated is necessary.
xxx
The RTC does not have jurisdiction over the subject matter of the action involving real
property with an assessed value of P19,700.00; exclusive and original jurisdiction is with the
Municipal Trial Court where the defendant resides; (3%) and (2009 Bar Question)
SUGGESTEDANSWER:
The second ground raised is also without merit because the subject of the litigation, Rescission of
Contract, is incapable of pecuniary estimation the exclusive original jurisdiction to which is vested
by law in the Regional Trial Courts. The nature of the action renders the assessed value of the land
involved irrelevant.
Q: A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a promissory
note in the- sum of P50.000.00, for liquidated damages of P5.000.00 and attorney’s fees of
P5.000.00. After he filed his answer, Y died, but his lawyer did not file a motion to dismiss. In
the meantime, Y*s widow filed with the above
court a special proceeding for the settlement of the intestate estate of Y. The widow, Z, was
appointed the administratrix of the estate. A filed in the civil case a motion to have Y
substituted by the administratrix; the latter did not object. The court granted the motion.
Trial on the merits was had. In due course, the court rendered a decision in favor of A. At the
time it was rendered, the period to file claims in the intestate estate of Y had already lapsed.
The administratrix, X, did not appeal from the decision; and after it became final. A moved
for the execution of judgment, Z opposed the motion contending that the decision is void
because the claim does not survive. The case should have been dismissed upon the death of Y
since upon his death, the court lost jurisdiction over the case. (1991 Bar Question)
a) Rule on the issue. Answer:

(a) Since Y died before final Judgment in the RTC, the action for money should have been
dismissed and prosecuted as a money claim against his estate. However, since the widow. Z, who
was appointed administratrix of the estate, did not object to the trial on the merits and did not
appeal from the decision, she is deemed to have waived the right to have the claim litigated in the
estate proceedings. Moreover, she is estopped from questioning the court's jurisdiction. Hence, the
decision is valid. (Sec. 21 of Rule 3; Ignacio v. Pambusco, 20 SCRA 126; Echaus u. Blanco. 179
SCRA 704)
(b) If the opposition is without merit, can the writ of execution be validly issued?
Answer:
No, because a Judgment for money cannot be enforced by a writ of execution against the estate of
the deceased which is in custodia legis. (Sec. 7 of Rule 39; Paredes v. Moya, 61 SCRA 527)
If it cannot be issued, what is the remedy of A? Answer:

(c) His remedy is to file a money claim against the estate of Y based on the judgment. Although the
period for filing money claims has already lapsed, the same may be allowed before an order of
distribution is entered. (Secs. 2 and 5 of Rule 86; Echaus v. Blanco, supra)
C. Over the issues
Q: In complex crimes, how is the jurisdiction of a court determined? (2003 Bar

In a complex crime, jurisdiction over the whole complex crime must be lodged with the trial court
having jurisdiction to impose the maximum and most serious penalty imposable on an offense
forming part of the complex crime. (Cuyos v. Garcia, 160
SCRA 302 [1988]).
D. Over the res or property in litigation
Q: Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the
ownership and possession of two parcels of land; one situated in Pampanga, and the other in
Bulacan.
(a) May the action prosper? Explain. (2%) (2009 Bar Question) SUGGESTED ANSWER:
NO, the action may not prosper, because under Rep. Act No. 7691, exclusive original jurisdiction
in civil actions which involve title to, or possession of real property or any interest therein is
determined on the basis of the assessed value of the land involved, whether it should be P20,OOO
in the rest of the Philippines, outside of the Manila with courts of the first level or with the-
Regional Trial Court. The assessed value of the parcel of land in Pampanga is different from the
assessed value of the land in Bulacan. What is involved is not merely a matter of venue, which is
waivable, but of a matter of jurisdiction.
However, the action may prosper if jurisdiction is not in issue, because venue can be waived.
ALTERNATIVEANSWER:
YES, if the defendant would not file a motion to dismiss on ground of improper venue and the
parties proceeded to trial.
(b) Will your answer be the same if the action was for foreclosure of the mortgage over
the two parcels of land? Why or why not? (2%)
SUGGESTEDANSWER:
NO, the answer would not be the same. The foreclosure action should be brought in the
proper court of the province where the land or any part thereof is situated, either in Pampanga or in
Bulacan. Only one foreclosure action need be filed unless each parcel of land is covered by distinct
mortgage contract.
In foreclosure suit, the cause of action is for the violation of the terms and conditions of the
mortgage contract; hence, one foreclosure suit per mortgage contract violated is necessary.
E. Jurisdiction of courts
1. Supreme Court
If the Supreme Court en banc is equally divided in opinion covering an original action, the
case shall be: (2012 BAR)
a. re-raffled to a division.
b. original action shall be dismissed.
c. The judgment appealed from shall be official. d. again deliberated upon.
A decision or resolution of a division of the Supreme Court when concurred in by members

who actually took part in the deliberation on the issues in a case and voted thereon, is a
decision or resolution of the Supreme Court. (2012 BAR)
e. three (3);
f. five(S);
g. eight (8);
h. ten (10).
Q: Compare the certiorari jurisdiction of the Supreme Court under the

Constitution with that under Rule 65 of the Rules of Civil Procedure. (4%) (2008
Bar Question) SUGGESTED ANSWER:
Under the Constitution, the certiorari jurisdiction of the Supreme Court provides for its expanded
jurisdiction power of judicial power over [governs] all branches or instrumentalities of the
government where is a grave abuse of discretion amounting to lack or excess of jurisdiction, as
[agencies and instrumentalities] provided in Section 1, second par., Art. VIII of the 1987
Constitution. The petition is filed under Rule 45 of the Rules of Court, and [The writ is directed not
only to tribunal, board or officer exercising judicial or quasi-judicial functions. And] the period
fixed for availing of the remedy is within 30 days from receipt of the copy of the decision, order or
ruling in question (Sec.
7, Art. IX).
But under Rule 65 of the Rules of Court, the certiorari jurisdiction of the Supreme Court is limited
to acts done without or in excess of jurisdiction or grave abuse of discretion amounting to lack or
excess of jurisdiction, by a tribunal, board or officer exercising judicial or quasi- judicial functions
only. And the period fixed for availing of the remedy is not later than 60 days from notice of
judgment; order or resolution in question (Secs. 1 and 4, Rule 65, Rules of Court).
Q: Can a suit for injunction be aptly filed with the Supreme Court to stop the President of
the Philippines from entering into a peace agreement with the National Democratic Front?
(2003 Bar Question)
SUGGESTED ANSWER:
No, a suit for injunction cannot aptly be filed with the Supreme Court to stop the President of the
Philippines from entering into a peace agreement with the National Democratic Front, which is a
purely political question. (Madarang v. Santamaria, 37
Phil. 304 [1917]). The President of the Philippines is immune from suit.
Q: After the First Division of the Supreme Court decided a case, the losing party sought a
reconsideration from the Supreme Court en banc.
Is the action taken by the said losing party proper? Explain your answer. (1990
Bar Question) Answer:
No, because the Supreme Court en banc is not an appellate court to which decisions or resolutions
of a Division may be appealed. However, a motion for reconsideration may be considered by the
Supreme Court en banc if three members of the Division are of the opinion that the same merits the
attention of the Court en banc and a majority of the Court en banc decide to consider it. (Circular
No. 2.89, Feb. 7,
1989)
2. Court of Appeals
Q: Goodfeather Corporation, through its President, Al Pakino, filed with the Regional Trial
Court (RTC) a complaint for specific performance against Robert White. Instead of filing an
answer to the complaint, Robert White filed a motion to dismiss the complaint on the ground
of lack of the appropriate board resolution from the Board of Directors of Good feather
Corporation to show the authority of Al Pakino to represent the corporation and file the
complaint in its behalf. The RTC granted the motion to dismiss and, accordingly it ordered
the dismissal of the complaint. Al Pakino filed a motion for reconsideration which the RTC
denied. As nothing more could be done by Al Pakino before the RTC, he file an appeal before
the Court of Appeals (CA). Robert White moved for dismissal of the appeal in the ground
that the same involved purely a question of law and should have been filed with the Supreme
Court (SC). However, Al Pakino claimed that the appeal involved mixed questions of fact and
law because there must be a factual determination if, indeed, Al Pakino was duly authorized
by Goodfeather Corporation to file the complaint. Whose position is correct? Explain. (2014)
Answer:
Al Pakino is correct in claiming that the appeal involved mixed questions of fact and law. There is
a question of law when the doubt or difference arises as to what the law is on a certain state of
facts. On the other hand, there is a question of fact, when the doubt or
difference arises as to the truth or falsehood of alleged facts. (Mirant Philippines Corporation v.
Sario, G.R. No. 197598, November 21, 2012). Since the complaint was dismissed due to the alleged
lack of appropriate board resolution from the Board of Directors of Goodfeather Corporation, the
appeal will necessarily involve a factual determination of the authority to file the Complaint for the
said Corporation. Hence, the appeal before the Court of Appeals is correct.
Q: Give at least three instances where the Court of Appeals may act as a trial court. (3%)
(2008 Bar Question)
SUGGESTED ANSWER:
Instances where the Court of Appeals may act as a trial court are:
a) In annulment of judgment under Secs. 5 and 6, Rule 47. Should the Court o£ Appeals find
prima facie merit in the petition, the same shall be given
due course and summons shall be served on the respondent, after which
trial will follow, where the procedure in ordinary civil cases shall be observed.
b) When a motion for new trial is granted by the Court of Appeals, the procedure in the new
trial shall be the same as that granted by a Regional
Trial Court (Sec. 4, Rule 53).
c) A petition for habeas corpus shall be set for hearing (Sec. 12, Rule 102).
d) In a petition for the writs of amparo and habeas data, a hearing can be conducted.
e) Under Section 12, Rule 124 of the Rules of Criminal Procedure, the Court of Appeals has
the power to try cases and conduct hearings, receive
evidence and perform any and all acts necessary to resolve factual issues cases which fall within its
original and appellate jurisdiction.
f) The Court of Appeals can grant a new trial based on the ground of newly discovered
evidence. (Sec. 14, Rule 124).
g) The Court of Appeals, under Section 6, Rule 46, whenever necessary to resolve factual
issues, may conduct hearing thereon or delegate the
reception of the evidence of such issues to any of its members or to an appropriate agency or office.
[NOTE: It is suggested that an answer with any three (3) of the enumerated instances should be
considered as correct].
Q: Does the Court of Appeals have jurisdiction to review the Decisions in criminal and
administrative cases of the Ombudsman? 2.5% (2006 bar Question)
SUGGESTED ANSWER:
The Court of Appeals can only review the Decisions of the Ombudsman in administrative cases in
an appeal by petition for review under Rule 43 of the 1997
Revised Rules of Civil Procedure. It has no jurisdiction to review Decisions of the
Ombudsman in criminal cases, the proper remedy being to file with the Supreme Court an original
petition for certiorari under Rule 65 (Fabian v. Ombudsman Desierto, 295
SCRA 470 [1998J; Kuizon v. Ombudsman Desierto, 354 SCRA 158 [200lj: Mendoza- Arce v.
Ombudsman, 380 SCRA 325 [20021).
Q: Menez Duque filed an action against Fuji, Inc. before the Regional Trial Court for
recovery of actual, moral and exemplary damages resulting from his alleged unfounded and
unjust dismissal from his job. Fuji. Inc. filed an answer asserting that Menez dismissal was
for just and valid cause.
After trial, the Regional Trial Court rendered a decision sustaining Menez’ claim and
ordering Fuji, Inc. to pay him actual, moral and exemplary damages. Fuji, Inc. appealed to
the
Court of Appeals where it insisted that Menez’ dismissal was for valid and just cause.
Without resolving the assigned error, the Court of Appeals set aside the appealed decision
and dismissed the case on the ground that it is the Labor Arbiter, not the ordinary courts,
which has jurisdiction to entertain the claim for damages.
Pursuant to Rep. Act No. 6715, "claims for actual, moral exemplary and other forms of
damages arising from employer-employee relations" fall within the “original and exclusive
Jurisdiction of Labor Arbiters. Considering, however, that the lack of jurisdiction of the trial
court was not assigned as error in the appellant’s brief, did the Court of Appeals act properly
in its decision? Why? (1993 Bar Question)
Answer:
Yes, because the fact that the lack of Jurisdiction of the trial court was not assigned as error in the
appellant’s brief should not prevent the Court of Appeals from taking up that issue, as the lack of
jurisdiction of the lower court is apparent from the face of the record. It is fundamental that a court
of justice could only validly act upon a cause of action or subject matter of a case over which
it has jurisdiction. Said jurisdiction is one conferred by law and cannot be acquired through, or
waived by, any act or omission of the parties. (Calimlim vs. Ramirez, 118 SCRA 399; Dy vs.
National Labor Relations Commission, 145 SCRA 211).
Alternative Answer:
Fuji, Inc. is estopped from raising the question of jurisdiction, inasmuch as it filed an answer
asserting Menez’s dismissal was for just and valid cause and in its appeal to the Court of Appeals,
it insisted on that defense. (Tijam vs. Sibonghanoy, 23 SCRA 29 and other cases)
Q: Roxanne, a widow, filed a petition for habeas corpus with the Court of Appeals against
Major Amor who is allegedly detaining her 18-year-old son Bong without authority of law.
After Major Amor had filed a return alleging the cause of detention of Bong, the Court of
Appeals promulgated a resolution remanding the case to the Regional Trial Court for a full-
blown trial due to the conflicting facts presented by the parties in their pleadings. In directing
the remand, the Court of Appeals relied on Sec. 9(1), in relation to Sec. 21 of BP 129
conferring upon said Court the authority to try and decide habeas corpus cases
concurrently with the Regional Trial Courts.
Did the Court of Appeals act correctly in remanding the petition to the Regional
Trial Court? Why? (1993 Bar Question)
Answer:
No. because while the Court of Appeals has original jurisdiction over habeas corpus concurrent
with Regional Trial Courts, it has no authority for remanding to the latter original actions filed with
the former. On the contrary, the Court of Appeals Is specifically given the power to receive
evidence and perform any and all acts necessary to resolve factual issues raised in cases falling
within its original jurisdiction. (Sec. 9. second paragraph of B.P. Big. 129, as amended by E.O. No.
33 s. 1986; Orda vs. Court of Appeals. 192 SCRA 768).
Alternative Answer:
Yes, because there is no prohibition in the law against a superior court referring a case to a lower
court having concurrent Jurisdiction. The Supreme Court has referred to the Court of Appeals or
the Regional Trial Court cases falling within their concurrent Jurisdiction.
3. Sandiganbayan
Sandiganbayan exercises concurrent jurisdiction with the Supreme Court and the
Court of Appeals over: (2012 BAR)
a. Petitions for Writ of Certiorari and Prohibition;
b. Petitions for Writ of Habeas Corpus;
c. Petitions for Quo Warranto;
d. Petitions for Writ of Amparo and Habeas Corpus.
The Sandiganbayan can entertain a quo warranto petition only in: (2012 BAR)
e. cases involving public officers with salary grade 27 or higher. f. only in aid of its appellate
jurisdiction.
g. as a provisional remedy.
h. cases involving "ill gotten wealth".
The judgment in a criminal case may be promulgated by the following, except by: (2012
BAR)
a. a Sandiganbayan justice in cases involving anti-graft laws.
b. a Clerk of Court of the court which rendered judgment.
c. an Executive Judge of a City Court if the accused is detained in another city. d. any judge of the
court in which it was rendered.
Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences.
In the exercise of its original jurisdiction, the Sandiganbayan may grant petitions for the
issuance of a writ of habeas corpus. (2009 Bar Question)
SUGGESTED ANSWER:
FALSE. The Sandiganbayan may grant petitions for Habeas corpus only in aid of its appellate
jurisdiction (RA 7975, as amended by RA 8249), not in the exercise of “original” jurisdiction.
Q: The Ombudsman, after conducting the requisite preliminary investigation, found

probable cause to charge Gov. Matigas in conspiracy with Carpinter, a private individual, for
violating Section 3(e) of Republic Act (RA) No. 3019 (Anti- Graft and Corrupt Practices Act,
as amended). Before the information could be filed with the Sandiganbayan, Gov. Matigas
was killed in an ambush. This, notwithstanding, an information was filed against Gov.
Matigas and Carpintero.
At the Sandiganbayan, Carpintero through counsel, filed a Motion to Quash the information,
on the ground of lack of jurisdiction of the Sandiganbayan, arguing that with the death of
Gov. Matigas, there is no public officer charged in the information.
Is the Motion to Quash legally tenable? (2014)
A: NO. The Motion to quash is not legally tenable. While it is true that by reason of the death of
Gov. Matigas, there is no longer any public officer with whom he can be charge for violation of
R.A. 3019, it does not mean, however, that the allegation of conspiracy between them can no
longer be proved or that their alleged conspiracy is already expunged. The only thing extinguished
by the death of Gov. Matigas is his criminal liability. His death did not extinguish the crime nor did
it remove the basis of the charge of conspiracy between him and Carpintero. The requirement
before a private person may be indicated for violation of Section 3(g) of R.A. 3019, among others,
is that such private person must be alleged to have acted in conspiracy with a public officer. The
law, however, does not require that such person must, in all instances, be indicated together with
the public officer. Indeed, it is not necessary to join all alleged co-
conspirators in an indictment for conspiracy (People of the Philippines v. Henry T. Go, G.R. No.
168539, March 25, 2014).
4. Regional Trial Courts
Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the

statement is false. Explain your answer in not more than two (2) sentences. (5%)
The filing of a motion for the reconsideration of the trial court’s decision results in the
abandonment of a perfected appeal. (2009 Bar Question)
SUGGESTED ANSWER:
FALSE. The trial court has lost jurisdiction after perfection of the appeal and so it can no longer
entertain a motion for reconsideration.
ALTERNATIVE ANSWER:
FALSE, because the appeal may be perfected as to one party but not yet perfected as to the other
party who may still file a motion for reconsideration without abandonment of his right of appeal
even though the appeal of the case is perfected already as to the other party.
Q: On August 13, 2008, A, as shipper and consignee, loaded on the M/V Atlantis in Legaspi
City 100,000 pieces of Century eggs. The shipment arrived in Manila totally damaged on
August 14, 2008. A filed before the Metropolitan Trial Court (MeTC)of Manila a complaint
against B Super Lines, Inc. (B Lines), owner of the M/V Atlantis, for recovery of damages
amounting to P167,899. He attached to the complaint the Bill of Lading. B Lines filed a
Motion to Dismiss upon the ground that the Regional Trial, Court has exclusive original
jurisdiction over "all actions in admiralty and maritime" claims. In his Reply, A contended
that while the action is indeed "admiralty and maritime" in nature, it is the amount of the
claim, not the nature of the action, that governs jurisdiction. Pass on the Motion to Dismiss.
(3%) (2010 Bar Question)
SUGGESTED ANSWER:
The Motion to Dismiss is without merit and therefore should be denied. Courts of the first level
have jurisdiction over civil actions where the demand is for sum of money not exceeding P300,
000.00 or in Metro-Manila, P400, 000.00, exclusive of Interest, damages, attorney's fees, litigation
expenses and, costs: this jurisdiction includes admiralty and marine cases. And where the main
cause of action is the claim for damages, the Amount thereof shall be considered in determining the
jurisdiction of the court (Adm. Circular No. 09-94, June 14, 1994).
Q: Anabel filed a complaint against B for unlawful detainer before the Municipal Trial Court
(MTC) of Candaba, Pampanga. After the issues had been joined, the MTC dismissed the
complaint for lack of jurisdiction after noting that the action was one for accion publiciana.
Anabel appealed the dismissal to the RTC which affirmed it and accordingly dismissed her
appeal. She elevates the case to the Court of Appeals, which remands
The case to the RTC, Is the appellate court correct? Explain (3%). (2010 Bar
Yes, the Court of Appeals is correct in remanding the case to RTC for the latter to try the same on
the merits. The RTC, having jurisdiction over the subject matter of the case appealed from MTC
should try the case on the merits as if the case was originally med with it, and not just to affirm the
dismissal of the case.
Rep. Act No.7691, however, vested jurisdiction over specified accion publiciana with courts of the
first level (Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts)
in cases where the assessed value of the real property involved does not exceed P20, 000.00 outside
Metro Manila, or in Metro Manila, where such value does not exceed P50, 000.00.
What court has jurisdiction over an action for specific performance filed by a subdivision
homeowner against a subdivision developer? Choose the correct answer. Explain. 2.5%
a) The Housing and Land Use Regulatory Board

b) The Securities and Exchange Commission
c) The Regional Trial Court
d) The Commercial Court or the Regional Trial Court designated by the Supreme Court
to hear and decide “commercial cases”
SUGGESTED ANSWER:
The Housing and Land Use Regulatory Board (HLURB) that has jurisdiction over an action for
specific performance filed by a subdivision homeowner, who is a lot-buyer or the latter’s
successor-in-interest, against a subdivision developer (Manila Bankers v. Ng Kok Wei, 418 SCRA
454 [2001]).
ANOTHER SUGGESTED ANSWER:
It is the RTC that has jurisdiction where the issue involved is an ordinary sale between buyer and
seller. “Mere assertion by the petitioner that it is a subdivision developer and the land involved is a
subdivision lot, will not automatically strip the trial court of its jurisdiction and authorize the
HLURB to take cognizance of the complaint"
[Lacson Hermanos, Inc. v. Heirs of Ignacio, 462 SCRA 291 [2005J). The mere relationship
between the “Homeowner" and the
Developer alone does not vest the HLURB with jurisdiction, but the nature of the action which is to
be determined by the allegations of the complaint. Jurisdiction of the HLURB in cases of specific
performance refers to complaints for compliance with contractual and statutory obligations. The
question does not specify what is the contractual stipulation or statutory obligation sought to be
performed. An action for specific performance is an action incapable of pecuniary estimation
which falls under the jurisdiction of the Regional Trial Court unless it is shown that the action falls
under the jurisdiction of any other court or quasi-judicial agency like the HLURB.
Q: A and B are brothers. Their late father, during his lifetime, donated his only real estate
property to B. Thereafter. B sold the property to C who had it titled. C died intestate and was
survived by his son. D. A. claiming that his legitime had been impaired, filed a case for
annulment of donation and sale, cancellation of title and recovery of possession of the
property before Branch 85 of the Regional Trial Court. D filed a motion to dismiss the
complaint on the ground that there is a pending intestate estate proceeding before Branch 87
involving the estate of C. his father, which included the subject real property. A opposed
the motion arguing that Branch 85 has jurisdiction since ownership of the land is involved
and the said branch has jurisdiction to resolve the question of ownership.
As Judge of Branch 85 resolve the motion to dismiss. (1996 Bar Question) Answer:
I would deny the motion because it is Branch 85 of the Regional Trial Court that has jurisdiction to
decide the question of ownership of said property.
Q: Judge Villamor was the Presiding Judge of the Regional Trial Court of Quezon City
(Branch 50), in the criminal case for qualified theft against Ding. After trial. Judge Villamor
acquitted Ding of the charge.
Subsequently, Paterno, the complaining witness in the aforesaid criminal case, filed a civil
action for damages against Judge Villamor for knowingly rendering an unjust judgment
when he acquitted Ding of the qualified theft. The case was filed in the Regional Trial Court
of Pasay City (Branch 100) presided over by Judge Villegas. Judge Villamor filed a motion to
dismiss the civil case for lack of authority on the part of Regional Trial Court of Pasay City
(Branch 100) to review his (Judge Villamor) decision.
How should the motion dismiss be resolved? Why? (1993 Bar Question)
Answer:
The motion to dismiss should be granted. The Regional Trial Court of Pasay City has no authority
to review the decision of Judge Villamor acquitting Ding. To allow Judge Villegas to proceed with
the action for damages against Judge Villamor, a co- equal judge of a co-equal court would in
effect permit a court to review and interfere with the Judgment of a co-equal court over which it
has no appellate Jurisdiction or power to review. [Villamor vs. Solas, 203 SCRA 540).
Alternative Answer:
The motion to dismiss should be denied. Since the criminal case was terminated with the acquittal
of Ding, the civil action for damages against Judge Villamor for knowingly rendering an
unjust Judgment may properly be filed with the RTC of Pasay City having jurisdiction thereof.
Q: While Alfredo was abroad, a parcel of land belonging to him was intruded into and
occupied by Rodrigo on January 1, 1991. When Alfredo returned on February
1, 1991, he immediately demanded that Rodrigo vacate the property. When the demand went
unheeded. Alfredo prepared a complaint alleging: that he is the
owner of the property which Rodrigo has intruded into and is occupying; that the intrusion
done with strategy and stealth, has caused him actual damages of
P30.000.00; and he, therefore, is praying the court to restore him to the possession of
the property, to award him damages, and to further grant him such
other reliefs as may be proper in the premises. The complaint was filed on March
1. 1991 with the Regional Trial Court which eventually rendered a decision declaring
Alfredo to be the owner of the land, awarding him damages of
P5.000.00, and ordering that possession of the property be restored to him.
Rodrigo appealed to the Court of Appeals where he ques-tioned the jurisdiction of the
Regional Trial Court, pertinently contending that it was the Municipal Trial Court which
had original and exclusive jurisdiction over the case because (1) it was a forcible entry case,
having been filed within one year from the alleged intrusion; (2) the intrusion was allegedly
done through strategy and stealth which are hallmarks of a forcible entry case; and (3) the
declaration of ownership was uncalled for since Alfredo did not ask for it.
As counsel for Alfredo, what points will you raise and advance to rebut the arguments of
Rodrigo and to justify the jurisdiction, as well as the decision of the Regional Trial
Court?(1992 Bar Question)
Suggested Answer:
As counsel for Alfredo. I would raise the point that the action was not one of forcible entry, but an
accion publiciana or a plenary action for recovery of possession de jure which is within the
jurisdiction of the Regional Trial Court. Moreover, the claim of actual damages in the amount of
P30.000.00. is not within the jurisdiction of the
Municipal Trial Court If it were an action of forcible entry, the damages that could be claimed
would be the reasonable compensation for the use and occupation of the land and the amount
hereof could exceed Twenty Thousand Pesos. But damages other than the reasonable
compensation for the use and occupation of the premises are not recoverable in an action of
forcible entry. (Reyes us. Court of Appeals, 38 SCRA 138)
With respect to the declaration of ownership, I would argue that it was correct inasmuch as Rodrigo
did not question the ownership of Alfredo.
Q: (2002 Bar Question)
P sued A in the RTC-Manila to recover the following sums: (1) P200,000.00 on an overdue
promissory note, (2) P80,000.00 on the purchase price of a computer, (3) P150,000.00 for
damages to his car and (4) P100,000.00 for attorney’s fees and litigation expenses. Can A
move to dismiss the case on the ground that the court has no jurisdiction over the subject
matter? Explain. (2%)
SUGGESTED ANSWER:
B. No, because the RTC-Manila has jurisdiction over the subject matter. P may sue A In one
complaint asserting as many causes of action as he may have and since all the claims are
principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.
[Rule 2, sec. 5(d)]. The aggregate amount claimed is P430,000.00, exclusive of the amount of
P100,000.00 for attorney’s fees and expenses of litigation. Hence, the RTC-Manila has jurisdiction.
Q: Estrella was the registered owner of a huge parcel of land located in a remote part of their
barrio in Benguet. However, when she visited the property after she took a long vacation
abroad, she was surprised to see that her childhood friend, John, had established a vacation
house on her property. Both Estrella and John were residents of the same barangay.
To recover possession, Estrella filed a complaint for ejectment with the Municipal Trial
Court (MTC), alleging that she is the true owner of the land as evidenced by her certificate of
title and tax declaration which showed the assessed value of the property as P21,000.00. On
the other hand, John refuted Estrella’s claim of ownership and submitted in evidence a Deed
of Absolute Sale between him and Estrella. After the filing of John’s answer, the MTC
observed that the real issue was one of ownership and not of possession. Hence, the MTC
dismissed the complaint for lack of jurisdiction.
On appeal by Estrella to the Regional Trial Court (RTC), a full-blown trial was conducted as
if the case was originally filed with it. The RTC reasoned that based on the assessed value of
the property, it was the court of proper jurisdiction. Eventually, the RTC rendered a
judgment declaring John as the owner of the land and, hence, entitled to the possession
thereof. (2014)
a. Was the MTC correct in dismissing the complaint for lack of jurisdiction? Why or why
not?
A: NO. The Metropolitan Trial Court was not correct in dismissing the Complaint for lack of
jurisdiction. It is well settled that jurisdiction is determined by the allegations contained in
the complaint. The contention of defendant in his Motion to Dismiss has nothing to do in the
determination of jurisdiction. Otherwise, jurisdiction would become dependent almost entirely
upon the whims of the defendant (Medical Plaza Makati Condominium v. Cullen, G.R. No. 181416,
November 11, 2013). Relative thereto, the Municipal Trial Courts have exclusive original
jurisdiction over cases of forcible entry and unlawful detainer (Section 33, B.P. 129). Hence, the
Metropolitan Trial Court is not correct in dismissing the complaint for lack of jurisdiction. Besides,
the rules allow provisional determination of ownership in ejectment cases when the defendant
raises the defense of ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership (Sec. 16, Rule 70). Accordingly, the inferior courts have
jurisdiction to resolve questions of ownership whenever it is necessary to decide the question of
possession in an ejectment case. (Serreno v. Spouses Gutierrez, G.R. No. 162366, November 10,
2006).
b. Was the RTC correct in ruling that based on the assessed value of the property,
the case was within its original jurisdiction and, hence, it may conduct a full-blown trial of
the appealed case as if it was originally filed with it? Why or why not?
A: NO. It is settled that forcible entry and unlawful detainer cases are within the exclusive
original jurisdiction of the MTC. Moreover, all cases decided by the MTC are generally appealable
to the RTC irrespective of the amounts involved (Sec. 22, B.P.
129).
5. Family Courts
Cesar, age 16, a habitual offender, was caught in possession of .001 grams of marijuana. He
was charged for violation of Sec. 16 of R.A. 9165, The Comprehensive Dangerous Drugs Law.
The court which has jurisdiction is: (2012
BAR)
a. the MTC;
b. the RTC;
c. Special Drugs Court;
d. Family Court.
Q: Juliet invoking the provisions of the Rule on Violence Against Women and their Children
filed with the RTC designated as a Family Court a petition for issuance of a Temporary
Protection Order (TPO) against her husband, Romeo. The Family Court issued a 30-day
TPO against Romeo. A day before the expiration of the TPO, Juliet filed a motion for
extension. Romeo in his opposition raised, among others, the constitutionality of R.A. No.
9262 (The VAWC Law)
arguing that the law authorizing the issuance of a TPO violates the equal protection and due
process clauses of the 1987 Constitution. The Family Court judge, in granting the motion for
extension of the TPO, declined to rule on the constitutionality of R.A. No. 9262. The Family
Court judge reasoned that Family Courts are without jurisdiction to pass upon constitutional
issues, being a special court of limited jurisdiction and R.A. No. 8369, the law creating the
Family Courts, does not provide for such jurisdiction. Is the Family Court judge correct
when he declined to resolve the constitutionality of R.A. No. 9262? (2015)
A: NO, the Family Court Judge is not correct when it declined to resolve the constitutionality of
R.A. No. 9262.
In Garcia v. Hon. Rey Allan Drilon, G.R. No. 179267, June 25, 2013, the Supreme Court held that
the “Family Courts have authority and jurisdiction to resolve the constitutionality of a
statute. In spite of its designation as a family court, the RTC remains to possess the authority as a
court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal, special
proceedings, land registration, guardianship, naturalization, admiralty or insolvency. This authority
is embraced in the general definition of judicial power to determine the valid and binding laws in
conformity with the fundamental law.”
A. How should the records of child and family cases in the Family Courts or Regional Trial
Court designated by the Supreme Court to handle Family Court cases be treated and dealt
with? (3%)
SUGGESTED ANSWER:
The records of child and family cases in the Family Courts or Regional Trial Court designated by
the Supreme Court to handle Family Court cases shall be dealt with utmost confidentiality. (Sec.
12, Family Courts Act of 1997) shall not be divulged unless necessary and with authority of the
judge. (Id.)
6. Metropolitan Trial Courts/Municipal Trial Courts
The MTC, acting as an Environmental Court, has original and exclusive jurisdiction
over the following, except: (2012 BAR)
a. criminal offenses punishable under the Chain Saw Act (R.A. 9175)
b. violation of the NIPAS Law (R.A. 7586)
c. violation of the Mining Laws
d. violation of Anti-Pollution Laws
Q: In an action for unlawful detainer in the Municipal Trial Court (MTC), defendant
X raised in his Answer the defense that plaintiff A is not the real owner of the
house subject of the suit. X filed a counterclaim against A for the collection of a debt of
P80.000 plus accrued interest of P15,000 and attorney’s fees of P20.000.
1. Is X's defense tenable? [3%]

2. Does the MTC have jurisdiction over the counterclaim? [12%] (1998 Bar
Question)
SUGGESTED ANSWER:
1. No. X's defense is not tenable if the action is filed by a lessor against a lessee. However, if the
right of possession of the plaintiff depends on his ownership then the defense is tenable.
2. The counterclaim is within the jurisdiction of the Municipal Trial Court which does not exceed
P100,000.00, because the principal demand is POO,000.00, exclusive of interest and
Attorney's fees. (Sec. 33, B.P. Big. 129, as amended.)'. However, inasmuch as all actions of
forcible entry and unlawful detainer are subject to summary procedure and since the counterclaim
is only permissive, it cannot be entertained by the Municipal Court. (Secs. 1A(1) and 3(A) of
Revised Rule on Summary Procedure.)
Q: Filomeno brought an action in the Metropolitan Trial Court (MeTC) of Pasay City
against Marcelino pleading two causes of action. The first was a demand for the recovery of
physical possession of a parcel of land situated in Pasay City with an assessed value of
P40,000; the second was a claim for damages of P500,000 for Marcelino’s unlawful retention
of the property Marcelino filed a motion to dismiss on the ground that the total amount
involved, which is P540,000, is beyond the jurisdiction of the MeTC. Is Marcelino
correct? (4%)(2008 Bar Question)
SUGGESTED ANSWER:
No, Marcelino is not correct. Under Rep. Act No. 7691, Metropolitan Trial Courts and other courts
of the first level have been vested with exclusive original jurisdiction in all civil actions which
involved title to, or possession of real property or any interest therein where the assessed value of
the property or interest therein does not exceed P20,000.00, or in civil actions in Metro Manila,
where such assessed value does not exceed P50,000.00 exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses and costs. Pasay City where the action for recovery of
physical possession was filed, is part of Metro Manila and therefore has exclusive jurisdiction over
the parcel of land situated therein whose assessed value is P40,000.00. The claim for damages of
P500,000.00 for the unlawful retention of the land involved is not determinative of the
court’s jurisdiction which is based on the nature of the action. The claim for damages of
P500,000.00 is just a consequence of the unlawful detention of the property subject of the action,
which should not be taken separately from the land. Filomeno has only one cause of action which
is the action for recovery of possession of the land against Marcelino, with damages.
Q: Plaintiff filed a complaint for a sum of money against defendant with the MeTC- Makati,
the total amount of the demand, exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs, being PI .000,000. In due time, defendant filed a
motion to dismiss the complaint on the ground of the MeTC’s lack of jurisdiction over the
subject matter. After due hearing, the MeTC 11) ruled that the court indeed lacked
jurisdiction over the subject matter of the complaint; and (2) ordered that the case therefore
should be forwarded to the proper Regional Trial Court immediately.
Was the court's ruling concerning jurisdiction correct? Was the court’s order to forward the
case proper? Explain briefly. (5%)(2004 Bar Question)
SUGGESTED ANSWER:
Yes. The MeTC did not have jurisdiction over the case because the total amount of the demand
exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, was
PI M. Its jurisdictional amount at this time should not exceed P400,000.00 (Sec. 33 of B.P. Big.
129, as amended by R.A. No. 7691).
The court's order to forward the case to the RTC is not proper. It should merely dismiss the
complaint. Under Sec. 3 of Rule 16, the court may dismiss the action or claim, deny the motion or
order the amendment of the pleading but not to forward the case to another court.
Q: A filed with the Metropolitan Trial Court of Manila an action for specific performance
against B, a resident of Quezon City, to compel the latter to execute a deed of conveyance
covering a parcel of land situated in Quezon City having an assessed value of P19,000.00. B
received the summons and a copy of the Complaint on 02 January 2003. On 10 January 2003,
B filed a Motion to Dismiss the Complaint on the ground of lack of jurisdiction contending
that the subject matter of the suit was incapable of pecuniary estimation. The court denied
the motion. In due time, B filed with the Regional Trial Court a Petition for Certiorari
praying that the said Order be set aside because the Metropolitan Trial Court had no
jurisdiction over the case.
On 13 February 2003, A filed with the Metropolitan Trial Court a motion to declare B in
default. The motion was opposed by B on the ground that his Petition for Certiorari was still
pending.
Was the denial of the Motion to Dismiss the Complaint correct?
Resolve the Motion to Declare the Defendant in Default. (2003 Bar

Question)
SUGGESTED ANSWER:
(a) The denial of the Motion to Dismiss the Complaint was not correct. Although the assessed
value of the parcel of land involved was P19,000.00, within the jurisdiction of the Metropolitan
Trial Court of Manila, the action filed by A for Specific Performance against B to compel the latter
to execute a Deed of Conveyance of said parcel of land- was not capable of pecuniary estimation
and, therefore, the action was within the jurisdiction of Regional Trial Court. (Russel v. Vestil, 304
SCRA 738 [1999]; Copioso v. Copioso, G.R. No. 149243, October 28, 2002; Cabutihan v.
Landcenter Construction,
383 SCRA 353 [2002]).
ALTERNATIVE ANSWER:
If the action affects title to or possession of real property then it is a real action and jurisdiction is
determined by the assessed value of the property. It is within the jurisdiction therefore of the
Metropolitan Trial Court.
The Court could declare B in default because B did not obtain a writ of preliminary injunction or a
temporary restraining order from the Regional Trial Court prohibiting the judge from proceeding in
the case during the pendency of the petition for certiorari. (Sec. 7 of Rule 65; Diaz v. Diaz, 331
SCRA 302 [2000].
ALTERNATIVE ANSWER:
(b) The Court should not declare B in default inasmuch as the jurisdiction of Metropolitan
Trial Court was put in issue in the Petition For Certiorari filed with the Regional Trial Court.
The Metropolitan Trial Court should defer further proceedings pending the result of such petition.
(Eternal Gardens Memorial Park Corporation v. Court of Appeals, 164 SCRA
421 [1988]).
Q: A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth

P200,OOO.OO. In what court, taking into consideration the nature of jurisdiction and of
venue, should the probate proceeding on the estate of A be instituted? (2003 Bar Question)
SUGGESTED ANSWER:
The probate proceeding on the estate of A should be instituted in the Municipal Trial Court of
Malolos, Bulacan which has jurisdiction, because the estate is valued at P200,000.00, and is the
court of proper venue because A was a resident of Malolos at the time of his death. (Sec. 33 of BP
129 as amended by RA 7691; Sec. 1 of Rule 73).
Q: Josefa filed in the Municipal Circuit Trial Court of Alicia and Mabini, a petition for the
probate of the will of her husband, Martin, who died in the Municipality of Alicia, the
residence of the spouses. The probable value of the estate which
consisted mainly of a house and lot was placed at P95.000.00 and in the petition for the
allowance of the will, attorney's fees in the amount of P10,000.00, litigation expenses in the
amount of P5,000.00 and costs were included. Pedro; the next, of kin of Martin, filed an
opposition to the probate of the will on the ground that the total amount included in the relief
of the petition is more than P100,000.00, the maximum Jurisdictional amount for municipal
circuit trial court. The court overruled the opposition and proceeded to hear the case.
Was the municipal circuit trial court correct in its ruling? Why? (5%) (2001 Bar
Question)
SUGGESTED ANSWER:
Yes, the Municipal Circuit Trial Court was correct in proceeding to hear the case. It has exclusive
jurisdiction in all matters of probate, both testate and intestate, where the value of the estate does
not exceed P100,000,00 (now (P200.000.00). The value in this case of P95.000.00 is within its
jurisdiction. In determining the jurisdictional amount, excluded are attorney's fees, litigation
expenses and costs; these are considered only for determining the filing fees. (B.P. Big. 129, sec.
33, as amended)
A brings an action in the Metropolitan Trial Court of Manila against B for the annulment of
an extrajudicial foreclosure sale of real property with an assessed value of P50.000.00 located
in Laguna. The complaint alleged prematurity of the sale for the reason that the mortgage
was not yet due. B timely moved to dismiss the case on the ground that the action should have
been brought in the Regional Trial Court of Laguna. Decide with reasons. (3%)
A files an action in the Municipal Trial Court against B, the natural son of A’s father, for
the partition of a parcel of land located in Taytay, Rizal with an assessed value of
P20.000.00. B moves to dismiss the action on the ground that the case should have been
brought in the Regional Trial Court because the action is one that is not capable of pecuniary
estimation as it involves primarily a determination of hereditary rights and not merely the
bare right to real property.
Resolve the motion. (2%)
SUGGESTED ANSWER:
(a) The motion should be granted. The Metropolitan Trial Court of Manila has no
jurisdiction because the action for the annulment of the extrajudicial foreclosure is not capable of
pecuniary estimation and is therefore under the jurisdiction of the Regional Trial Courts. (Russell
v. Vestil 304 SCRA 738, (1999).
However, the action for annulment is a personal action and the venue depends on the residence of
either A or B. Hence, it should be brought in the Regional Trial Court of the place where either of
the parties resides.
(b) The motion should be granted. The action for partition depends on a determination of the
hereditary rights of A and B, which is not capable of pecuniary estimation. Hence, even though the
assessed value of the land is P20,000.00, the Municipal Trial Court has no jurisdiction. (Russell v.
Vestil, supra)
Q: Albert forcibly entered and occupied the house and lot in Quezon City owned by his
neighbor Carissa. Carissa immediately sued Albert for recovery of the property. She also
claimed damages amounting to P100,000.00, other undetermined losses as a result of the
forcible entry, and attorney’s fees of P25.000.00. Albert sets up affirmative defenses in his
answer without questioning Carissa's title over the property. (1995 Bar Question)
A. Is the case triable under summary procedure by the Metropolitan Trial Court of
Quezon City? Explain.
B. May Carissa present evidence of title? Explain. Answer:
A. Yes, because all actions for forcible entry and unlawful detainer are subject to summary
procedure irrespective of the amount of damages claimed, but the attorney’s fees should not exceed
P20,000.00.
B. Yes, but only to determine the question of possession. (BP 129 as amended). Albert may raise
the issue of lack of barangay conciliation prior to the filing of the
complaint.
Q: For failure of the tenant, X, to pay rentals, A, the court-appointed administrator of the
estate of Henry Datu, decides to file an action against the former for the recovery of
possession of the leased premises located In Davao City and for the payment of the accrued
rentals In the total amount of P25,000.00. (1991 Bar Question)
A. Is prior referral to the Lupon under P.D. No. 1508 necessary?
Answer:
No, because the law applies only to disputes between natural person, and does not apply to juridical
person such as the estate of a deceased. [Vda. de Borromeo v. Pogoy, 126 SCRA 217)
B. What is the court of proper jurisdiction and venue of the Intended action?
Answer:
The Court of proper jurisdiction and venue is the Municipal Trial Court of Davao City, since this is
an action of illegal detainer and the leased premises are located in Dayao City.
Another Answer:
If the action filed is for recovery of possession or accion publiciana, the Regional Trial Court of
Davao City would have jurisdiction and the venue would also be in Davao City.
C. Supposing that referral is necessary, but the complaint is filed without such referral, may
it be dismissed on the ground of lack of jurisdiction?
Answer:
No, because lack of referral would merely render the action premature for failure to comply with a
condition precedent.
If the case is filed with the Municipal Trial Court, in Cities (MTCC), is it covered by the Rule
on Summary Procedure?
Answer:
No, it is not covered by the Rule on Summary Procedure in any of the lower courts, because the
unpaid rentals exceed P20.000.00 (Sec. 1-A-l of Rule on Summary Procedure)
Supposing that A filed the complaint in the MTCC, and X filed an Answer wherein he
interposed a counterclaim for moral damages in the amount of P50.000 alleging that
the complaint is unfounded and malicious, would the MTCC have jurisdiction over the
counterclaim? If X did not set up the counterclaim, can he file a separate action to recover
the damages? Can A file a counterclaim to the counterclaim?
Answer:
No, because the counterclaim exceeds the jurisdictional amount of P20.000.00. Since the claim for
damages is not within the jurisdiction of the MTCC, it is not a compulsory counterclaim and X can
file a separate action in the RTC to recover the damages. [Reyes v. CA, 38 SCRA 130)
Another Answer:
The MTCC would have jurisdiction over the counterclaim if the excess of the amount thereof over
P20.000.00 is waived by X. (Agustin v. Bocalan, 135 SCRA 340)
Q: In an ejectment suit filed with the Metropolitan Trial Court of Manila, the judge rendered
a decision ordering the defendant (a) to vacate the property of the plaintiff and (b) to pay the
plaintiff the amount of P300 a month as reasonable compensation for the use of the land
starting from the time she occupied the same and until it is vacated by him; P10,000 as
unrealized earnings; P7,000 as moral damages; P5,000 as exemplary damages; and P3,000 as
attorney’s fees. The defendant contends that the decision is improper. Decide. (1989 Bar
Question)
Answer:
The Metropolitan Trial Court exceeded its jurisdiction in awarding damages, other than the
reasonable compensation for the use and occupation of the land, totalling P25,000.00. Hence, the
decision should be nullified as to the excess of P5,000 over the jurisdictional amount of P20,000.00
(Augustin vs. Bocalan, 135 SCRA 340)
Only rentals or reasonable compensation for the use and occupation of the premises and attorney’s
fees may be awarded in an ejectment case.
Q: Andres filed a case for unlawful detainer before the Metropolitan Court of Manila against
Lito for refusing to vacate the leased premises after the expiration of his Lease Contract and
for non-payment of rentals. As counterclaim, Lito claimed moral damages in the amount of
P15,000.00.
A. May the Metropolitan Court proceed to try and decide the case including the claim of
P15,000.00? Explain.
B. In case Lito is adjudged to vacate the leased premises and to pay the accrued
rentals in arrears, how can he stay the execution of the judgment?
C. How does unlawful detainer differ from forcible entry? (1988 Bar Question)
Answer:
A. Yes, because the amount of the counterclaim, P15,000.00, is within the jurisdiction of the
Metropolitan Court which has also exclusive original jurisdiction over the unlawful detainer case.
(Agustin vs. Bocalan, 135 SCRA 340).
B. Lito must appeal; file a supercede as bond in an amount equivalent to the rents, damages and
costs accruing down to the time of the judgment; and deposit with the Regional Trial Court the
amount of the reasonable value of the use and occupation of the premises for the preceding month
or period at the rate determined by the judgment, on or before the tenth day of each succeeding
month or period. (Sec. 8 of Rule 70)
C. In unlawful detainer, the possession is legal at the beginning but subsequently becomes illegal
after the expiration or termination of the right to hold possession, whereas in forcible entry the
possession is illegal from the beginning because the entry was made by force, intimidation, threat,
strategy or stealth.
Q: “A” leased his commercial land and building in Malate, Manila, to “B”, a resident, of
Malolos, Bulacan. The Contract of Lease provided that in the event “A" violates the
Contract, “B” may file suit in Manila. “AY’ residence, and if “B” violates the Contract, “A”
may sue “B” in Malolos. “B” violated the Contract, entitling “A” to sue for ejectment.
If you were the lawyer of “A”, where and which court can you lawfully file the action for
ejectment? Explain. (1987 Bar Question)
Answer:
I can lawfully file the action for ejectment either in the Metropolitan Trial Court of Manila or in the
Municipal Trial Court of Malolos. Metropolitan and Municipal Trial Courts have exclusive original
jurisdiction over the cases of forcible entry and unlawful detainer or ejectment cases. The
stipulation in the contract of lease that if “B” violates the contract “A” may sue “B” in Malolos is
vvalid, because the location of the real property in such cases determines the venue of the action
and not jurisdiction over the subject matter. However, since the agreement as to venue is merely
permissive, as shown by the use of the word “may”, the action may also be filed in Manila where
the real property is located. (Villanueva vs. Masqueda, 155 SCRA 904).
Q: What courts have jurisdiction over the following cases filed in Metro Manila? (1997 Bar
Question)
a) An action for specific performance or. In the alternative, for damages In the amount of
P180,000.00
b) An action for a writ of injunction.
c) An action for replevin of a motorcycle valued at P150.000.00.
d) An action for Interpleader to determine who between the defendants is entitled to receive
the amount of P190.000.00 from the plaintiff.
e) A petition for the probate of a will involving an estate valued at P200.000.00.
Answer:
a) An action for specific performance or, in the alternative, for damages in the amount of
180,000.00falls within the jurisdiction of Metropolitan Trial Courts in Metro Manila. Although an
action for specific performance is not capable of pecuniary estimation, since the alternative demand
for damages is capable of pecuniary estimation, it is within the Jurisdiction of the Metropolitan
Trial Courts in Metro Manila. (Sec. 33 of BP 129 as amended by RA No. 7691; Cruz vs. Tan 87
Phil. 627).
b) An action for injunction is not capable of pecuniary estimation and hence falls within the
jurisdiction of the Regional Trial Courts.
c) An action for replevin of a motorcycle valued at 150,000.00 falls within the jurisdiction
of the Metropolitan Trial Courts in Metro Manila (Sec. 33 of BP 129. as amended by RA No. 7691)
d) An action for interpleader to determine who between the defendants is entitled to receive the
amount of P190,000.00 falls within the jurisdiction of the Metropolitan Trial Courts in Metro
Manila. {Id.; Makati Dev. Corp. v. Tanjuatco, 27 SCRA 401)
e) A petition for the probate of a will involving an estate valued at 200,000.00 falls within the
jurisdiction of the Metropolitan Trial Courts in Metro Manila (Id; Sec. 19(41 of BP 129, as
amended).
Additional Answer:
(b) An application for a writ of preliminary injunction may be granted by a Municipal Court in an
action of forcible entry and unlawful detainer? (Sec. 33 of BP 129; Day vs. RTC of Zamboanga.
191 SCRA 610).
F. Over small claims; cases covered by the Rules on Summary Procedure and
Barangay conciliation
The Rule on Small Claims is applicable to: (2012 BAR)

a. claims for unpaid rentals of P 100,000 or less, with prayer for ejectment.
b. enforcement of a barangay amicable settlement involving a money claim of P 50,000 after
one (1) year from date of settlement.
c. action for damages arising from a quasi-delict amounting to P 100,000.
d. action to collect on a promissory note amounting to P 105,000 where plaintiff expressly insists
in recovering only P 1 00,000.
A Small Claims Court . (2013 BAR)

(A) has jurisdiction over ejectment actions
(B) has limited jurisdiction over ejectment actions
(C) does not have any jurisdiction over ejectment actions
(D) does not have original, but has concurrent, jurisdiction over ejectment actions
(E) has only residual jurisdiction over ejectment actions
X and Y, both residents of Bgy. II, Sampaloc, Manila entered into a P 100,000 loan
agreement. Because Y defaulted, X sued Y for collection and the complainant prayed for
issuance of preliminary attachment. Y moved to dismiss the complaint because there was no
Barangay conciliation. The court should therefore: (2012
BAR)
a. dismiss X's complaint for prematurity.
b. dismiss X's complaint for lack of cause of action.
c. deny Y's motion because it is exempt from Barangay conciliation. d. deny Y's motion because
of the amount of the loan.
Q: Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio City a
complaint for annulment of sale against Henry. Marcos and Henry both reside in Asin Road,
Baguio City, while Mariano resides in Davao City. Henry filed a motion to dismiss the
complaint on the ground of prematurity for failure to comply with the mandatory barangay
conciliation. Resolve the motion with reasons. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
The motion to dismiss should be denied because the parties in interest, Mariano and Henry, do not
reside in the same city/municipality, or is the property subject of the controversy situated therein.
The required conciliation/mediation before the proper Barangay as mandated by the Local
Government Code governs only when the parties to the dispute reside in the same city or
municipality, and if involving real property, as in this case, the property must be situated also in the
same city or municipality.
Q: Albert forcibly entered and occupied the house and lot in Quezon City owned by his
neighbor Carissa. Carissa immediately sued Albert for recovery of the property. She also
claimed damages amounting to P100,000.00, other undetermined losses as a result of the
forcible entry, and attorney’s fees of P25.000.00. Albert sets up affirmative defenses in his
answer without questioning Carissa's title over the property. (1995 Bar Question)
A. Is the case triable under summary procedure by the Metropolitan Trial Court of
Quezon City? Explain.
B. May Carissa present evidence of title? Explain. Answer:

A. Yes, because all actions for forcible entry and unlawful detainer are subject to summary
procedure irrespective of the amount of damages claimed, but the attorney’s fees should not exceed
P20,000.00.
B. Yes, but only to determine the question of possession. (BP 129 as amended).
Albert may raise the issue of lack of barangay conciliation prior to the filing of the complaint.
Q: Edison was charged with the crime of less serious physical injuries in the Metropolitan
Trial Court of Manila. Under the Revised Penal Code, the penalty prescribed for this offense
is arresto mayor, Aside from the recital of the facts constituting the offense, the information
alleged that the offended party suffered
actual damages in the amount of P25,000. Instead of submitting his counter- affidavits as
required by the court, Edison filed a “motion to quash” contending that the court had no
jurisdiction over the case since the amount claimed as damages exceeds the jurisdic-tional
limit of trial courts in civil cases. If you were the judge trying the case, what would you do
with the-motion filed? How would you dispose of the question of jurisdiction raised in the
said motion? Explain. (1989 Bar Question)
Answer:
I would deny the motion to quash inasmuch as such a motion is not allowed in Summary
Procedure. The criminal case where the penalty prescribed by law for the offense charged does not
exceed six months of imprisonment is governed by Summary procedure.
On the question of jurisdiction, Summary Procedure applies irrespective of the civil liability arising
from the offense. Hence the fact that the civil liability exceeds P2Q,000 does not deprive the
Metropolitan Trial Court of jurisdiction. (Sec. B-4)
Q: An information for slight physical injuries was filed against Diego in the Municipal Trial
Court of Cainta, after which the judge directed him to appear and submit counter- affidavits
and those of his witnesses on September 12, 1989. Diego failed to appear on the said date.
Thereafter, the judge rendered judgment convicting Diego of the offense charged based on
the affidavits submitted by the complainant. Diego contends that this judgment is a nullity.
Decide. (1989 Bar Question)
Answer:
Diego’s contention is correct. Under Summary Procedure rules, the failure of Diego to appear and
submit counter-affidavits on the date specified may be a ground for the judge to issue a warrant for
his arrest upon a finding of probable cause. However, the judge may not render a judg-ment of
conviction of the offense charged based on the affidavits submitted by the complainant. He should
set the case for arraignment and trial if Diego pleads not guilty. Only after trial may the judge
render a judgment of conviction. (Secs. 10 and 11)
A. In what civil cases is the Summary Procedure before Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts applicable?
B. In what criminal cases is the Summary Procedure before the Metropolitan
Courts, Municipal Courts, and Municipal Circuit Trial Courts applicable? Answer:
A. Summary Procedure is applicable in the following civil cases:
1. Cases of forcible entry and unlawful detainer, accept where the question of ownership is
involved, or where the damages or unpaid rentals sought to be
recovered by the plaintiff exceed twenty thousand pesos (P20,000.00) at the
time of the filing of the complaint;
2. All other civil cases, except probate proceedings, falling within the jurisdiction of the
abovementioned courts, where the total amount of the plaintiff s claim
does not exceed ten thousand pesos (P10,000.00), exclusive if interest and
costs. (Sec. 1-A)
B. It is applicable in the following criminal cases:

1. Violations of traffic laws, rules and regulations;
2. Violations of the rental law;
3. Violations of municipal or city ordinances;
4. All other criminal cases where the penalty prescribed by law for the offense charged does not
exceed six months of imprisonment, or a fine of one thousand pesos (PI,000.00), or both,
irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising
therefrom: Provided, however, that in offenses involving damage to property through criminal
negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos
(P10,600 00). (Sec. 1-B)
Through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten
thousand pesos (P10,600 00). (Sec. 1-B)
G. Totality Rule
Q: Lender extended to Borrower a Pl00,000.00 loan covered by a promissory note. Later,

Borrower obtained another Pl00,000.00 loan again covered by a promissory note. Still later,
Borrower obtained a P300,000.00 loan secured by a real estate mortgage on his land valued at
P500,000.00. Borrower defaulted on his payments when the loans matured. Despite demand
to pay the P500,000.00 loan, Borrower refused to pay. Lender, applying the totality rule, filed
against Borrower with the Regional Trial Court (RTC) of Manila, a collection suit for
P500,000.00. Did Lender correctly apply the totality rule and the rule on joinder of causes of
action? (2015)
A: YES. The Lender correctly applied the totality rule and the rule on joinder of causes of action
because where the claims in all the causes of action are principally for recovery of sum of
money, the aggregate amount of the claim shall be the test of jurisdiction (Section 5(d), Rule 2).
Here, the total amount of the claim is P500,000.00. Hence, the Regional Trial Court (RTC) of
Manila has jurisdiction over the suit. At any rate, it is immaterial that one of the loans is secured by
a real estate mortgage because the Lender opted to file a collection of sum of money instead of
foreclosure of the said mortgage.
Q: At the trial, Borrower's lawyer, while cross-examining Lender, successfully elicited an
admission from the latter that the two promissory notes have been paid. Thereafter,
Borrower's lawyer filed a motion to dismiss the case on the ground that as proven only
P300,000.00 was the amount due to Lender and which claim is within the exclusive original
jurisdiction of the Metropolitan Trial Court. He further argued that lack of jurisdiction over
the subject matter can be raised at any stage of the proceedings. Should the court dismiss the
case? (2015)
A: NO. The court should not dismiss the case. What determines the jurisdiction of the court is the
nature of the action pleaded as appearing from the allegations in the complaint. The averments
therein and the character of the relief sought are the ones to be consulted (Navida v. Hon. Teodoro
A. Dizon, Jr., G.R. No. 125078, May 30, 2011).
Accordingly, even if the defendant is able to prove in the course of the trial that a lesser amount is
due, the court does not lose jurisdiction and a dismissal of the case is not in order (Paadlan v.
Dinglasan, G.R. No. 180321, March 20, 2013).
Q: Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City. Aside
from alleging payment as a defense, Ramon in his answer set up counterclaims for P100,000
as damages and P30,000 as attorney’s fees as a result of the baseless filing of the complaint, as
well as for P250,000 as the balance of the purchase price of the 30 units of air conditioners he
sold to Fe.
a) Does the RTC have jurisdiction over Ramon’s counterclaims, and if so, does he have to pay
docket fees therefor? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
a) Yes, the RTC has jurisdiction over Ramon’s counterclaims because they are all money claims in
which the totality rule applies in determining jurisdiction (Sec. 5[d], Rule
2, Rules of Court).
Ramon has to pay docket fees for his counterclaims whether the counterclaim is compulsory or
permissive in nature. Rule 141 of the Rules of Court has been amended to require payment of
docket fees for counterclaims and cross-claims whether compulsory or permissive.
[This amendment has not yet been implemented by the Supreme Court. The present practice still
exempts compulsory counterclaims from docket fees.]
Q: What do you understand by the “totality rule” in determining the jurisdiction of courts in
civil cases? Explain. (1989 Bar Question)
Answer:
Under the “totality rule”, where there are several claims or causes of action 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 transactions. (Sec. 33 of
BP 129; Sec. 11 of Interim Rules)
Q: Marissa brought an action against Dely and Inday in one complaint before the Regional
Trial Court of Manila. As her first cause of action, Marissa alleges that Dely purchased from
her on various occasions truck tires worth PI2,000 but refused to pay the said amount
despite several demands. As her second cause of action, Marissa alleges that Inday likewise
purchased from her on several occasions truck tires worth P10,000 but refused to pay the
said amount despite repeated demands. The total amount o£ Marissa’s demands against the
two is P22,000. Both Dely and Inday now separately move to dismiss the complaint on the
ground that the RTC has no jurisdiction over the case. How would you resolve these
motions? Explain. (1989 Bar Question)
Answer:
I would grant said motions to dismiss, because the totality rule is subject to the rule on permissive
joinder, of parties. In this case, there is misjoinder of parties defendant inasmuch as the
claims against the two defendants are separate and distinct from each other and cannot be joined in
a single complaint. Neither claim falls within the jurisdiction of the Regional Trial Court. (Flores v.
Mallare-Philipps, 142 SCRA 377).
III. Civil Procedure
A. Actions
1. Meaning of ordinary civil actions
Q: Distinguish special proceeding from an ordinary action. (1996 Bar Question) Answer:
A special proceeding is a remedy to establish the status or right of a party or a particular fact, while
an ordinary action is one by which one party prosecutes another for the enforcement or protection
of a right or the prevention or redress of a wrong. (Secs. 1 and 2 of Rule 2)
2. Meaning of special civil actions

Distinguish civil actions from special proceedings. [3%]
SUGGESTED ANSWER:
A civil action is one by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong. (Sec. 3[a], Rule 1. 1997 Rules of Civil Procedure), while a
special proceeding is a remedy by which a party seeks to establish a Status, a right or a particular
fact. (Sec. 3[C]. Rule X, 1997 Rules of Civil Procedure.)
3. Civil actions versus special proceedings

4. Personal actions and real actions
In real actions, the docket and filing fees are based on: (2012 BAR)
e. fair market value of the property. f. assessed value of the property.
g. BIR zonal value of the property.
h. fair market value of the property and amount of damages claimed.
Alternative Answer:
b. assessed value of the property
Q: What do you mean by (a) real actions; and (b) personal actions? 2% (2006 Bar
Real actions are actions affecting title to or possession of real property or an interest therein. All
other actions are personal actions (Sec. 1, Rule 4 of the 1997 Revised Rules of Civil Procedure).
5. Local and transitory actions
Q: On January 2,1989, Ernani purchased construction materials for his new building in
Calamba, Laguna, from a hardware store located in Batangas City and owned by Daniel. On
the same date and in payment of the materials, Emani issued a Metrobank check (Calamba
branch) for P500,000 which was drawn and signed by him in Calamba. Daniel deposited the
check with the Metrobank, Batangas City branch, but the same was dishonored for
“insufficient funds.” Despite several demands, Ernani failed to make good his check so that a
case for violation of B.P. 22 (The Bouncing Checks Law), after a preliminary investigation
thereof was conducted, was filed with the Regional Trial Court of Batangas City. Ernani
moved to quash the case on the ground of lack of jurisdiction, contending that the case should
have been filed with the Regional Trial Court of Calamba, Laguna, since the check was
drawn and signed in Calamba. How would you decide the motion? Explain. (1989 Bar
Question)
Answer:
Motion to quash is denied. Violation of the Bouncing Checks Law is a transitory or continuing
offense which may be validly tried either in the place where the check was
issued or in the place where the check was dishonored. Since the check in question was dishonored
by the Metrobank in Batangas City, the Regional Trial Court of Batangas City has
jurisdiction over the case. (People vs. Grospe, 157 SCRA 154)
6. Actions in rem, in personam and quasi in rem
Q: Distinguish: (1004 Bar Question)
1. an action in rem from an action quasi in rem

2. an action quasi in rem from an action in personam.
3. an action in personam from a personal action.
4. an action in rem from a real action.
5. a personal action from a local action. Answer:
1. An action in rem is an action against all who might be minded to make an objection of any sort
against the right sought to be established, while an action quasi in rem is an action against an
individual although the purpose of the suit is to subject his interest in a particular property to the
obligation or lien burdening the property.
The judgment rendered in actions in rem binds the whole world, while the Judgment rendered in
actions quasi in rem is conclusive only between the parties. (Banco Español FUipinov.
Palanca, 37 Phil. 921; Sandejas v. Robles, 81
Phil. 421.)
2. An action quasi in rem, as stated, is an action against a person over a particular property or
claims relating thereto, while an action in personam is an action to establish a claim against a
person with a judgment that binds him personally.
3. An action in personam, as stated, is an action against a person on the basis of his personal
liability while a personal action is an action where the plaintiff seeks the recovery of personal
property, the enforcement or resolution of a contract or the recovery of damages. (Hernandez v.
Rural Bank of Lucena, Inc., 81 SCRA
75 [1981]).
4. An action in rem is as stated above, while a real action is an action affecting title to real property
or for the recovery of possession, or for partition or condemnation of, or foreclosure of a mortgage
on, real property. (Rule 4, sec. 2[a]).
5. A personal action is as stated above, while a local action is that which must be brought in, a
particular place.
Plaintiff in a personal action may file it in the place where he resides or where the defendant
resides, while in a local action, plaintiff has no choice except to file the action in the place where
the property is located.
false. Explain your answer in not more than two (2) sentences. (5%)
xxx
A suit for injunction is an action in rem. (2009 Bar Question) SUGGESTED ANSWER:
FALSE .A suit for injunction is an action in personam. In the early case of Auyong Hian v. Court
of Tax Appeals (59 SCRA 110 [1974], it was held that a restraining order, like an injunction,
operates upon a person. It is granted in the exercise of equity jurisdiction and has no in rem effect
to invalidate an act done in contempt of an order of the court except where by statutory
authorization, the decree is so framed as to act in rem on property. (Air Materiel Wing Savings and
Loan Association, Inc. v. Manay, 535
SCRA356 [2007]).
B. Cause of action
1. Meaning of cause of action

A. Distinguish action from cause of action. (2%)
B. A sued B to recover P500, 000.00 based on a promissory note due and payable on
December 5,1998. The Complaint was filed on November 30, 1998, and summons was served
on B on December 7, 1998. B interposes a motion to dismiss on the ground that the
Complaint states no cause of action. If you were the judge, how would you rule on the
motion? (2%)
SUGGESTED ANSWER:
A. An action is one by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong. (Sec. 3(A), second par., Rule 1 of the
1997 Rules of Civil Procedure.) A cause of action is the act or omission by which a party
violates a right of another. (Sec. 2, Rule 2 of the 1997 Rules) An action must be based on a cause
of action. (Sec. 1, Rule 2 of the 1997 Rules)
B. If I were the judge, I would grant the motion on the ground that the complaint states no cause of
action. When the complaint was filed, the promissory note was not yet due and payable and hence
the complaint was filed prematurely. This defect was not cured by the service of the summons on
the defendant after the date when the promissory note became due and payable.
xxx
Cause of action from action
Answer:
xxx
A cause of action is an act or omission of one party in violation of the legal right or rights of the
other (Maao Sugar Central vs. Barrios. 79 Phil. 606; Sec. 2 of new Rule
2), causing damage to another. An action is an ordinary suit in a court of Justice by
which one party prosecutes another for the enforcement or protection of a right, or the prevention
or redress of a wrong. (Section 1 of former Rule 2).
A. The complaint alleged that the defendant acted in bad faith, arbitrarily, illegally,
wrongfully, and in violation of law. However, it did not contain any averment of facts
showing that defendant's acts were done in the manner alleged.
Does the complaint state a cause of action? Explain.
B. X brought an action against Y for the annulment of the sale of certain shares of stock.
After the case was decided in favor of X, he filed another action for the recovery of the
dividends that had already accrued when the first action was filed.
Is the second action for the recovery of the dividends proper? Answer:
A. No, because it does not state the ultimate facts constituting the plaintiffs cause of action. The
allegations that the defendant acted in bad faith, arbitrarily, illegally, wrongfully and in violation of
the law are mere conclusions of fact or conclusions of law. (Remitere vs. Vda. De Yulo, 16 SCRA
251)
Alternative Answer:
Yes, if the complaint alleges ultimate facts and states that the acts were done in bad faith,
arbitrarily, illegally, wrongfully and in violation of the law. The rule allows malice, intent,
knowledge or other condition of the mind to be averred generally. (Sec. 5 of Rule 8)
B. No, because the recovery of the dividends is part of the cause of action for the annulment of the
sale of certain shares of stock and should have been claimed in the first action. The second action
constituted splitting a single cause of action.
Q: A bought a Volvo Sedan from ABC Cars for P 5.0M. ABC Cars, before delivering to
A, had the car rust proofed and tinted by XYZ Detailing. When delivered to A, the car's
upholstery was found to be damaged. ABC Cars and XYZ Detailing both deny any liability. Who
can A sue and on what cause(s) of action? Explain. (2012 BAR)
A: A can file an action for specific performance and damages against ABC Cars since the damage
to the Volvo sedan’s upholstery was caused before delivery of the same to A, and therefore prior to
the transfer of ownership to the latter (Article 1477, NCC). Under Article 1170 of the Civil Code,
those who contravene the tenor of the obligation are liable for damages. Hence, an action for
specific performance against ABC Corporation to deliver the agreed Volvo Sedan in the contract
free form any damage or defects, with corresponding damages will lie against ABC Cars.
2. Right of action versus cause of action
3. Failure to state a cause of action
Q: Luis is the owner of a five-door apartment unit three doors of which he has leased to Fe,
Gary , and Marilou for a monthly rental of P250.00 per door. Fe, Gary, and Marilou have
been his tenants for close to thirty years at that rate. He occupies the fourth door as his own
residence. The fifth door is vacant. Alleging that he needs to repossess all three doors for the
use of his son, Fern, who had recently gotten married, and who does not allegedly have a
residence of his own, he sued, after the requisite letters to vacate, Fe, Gary, and Marilou
before the Metropolitan Trial Court for unlawful detainer. Fe, Gary, and Marilou answered
the complaint and set up the defense that ejectment was not proper because the fifth door
was available for Fern’s residence. At the trial, they likewise endeavored to prove that Fern
has in fact a residence of his own and that the suit was Luis mere strategy to force them to
agree to a rental hike of P1,500.00 a door, in violation of the rental laws. The trial judge,
however, decreed ejectment. On appeal to the Regional Trial Court, Fe, Gary, and Marilou
alleged that the decision was null and void, for lack of jurisdiction, there having been no
prior confrontation among the parties before the lupong tagapayapa pursuant to Presidential
Decree No. 1508. Luis countered that the jurisdictional question not having been raised
below, it cannot be raised for the first time on appeal.
A. Can Fe, Gary, and Marilou validly challenge the 65 jurisdiction of the
Metropolitan Trial Court? Explain.
B. What is the effect of Luis failure to resort to the conciliation process before the lupong
togapayapa provided for in P.D. No. 1508? Explain. (1988 Bar Question)
Answer:
(a) No, because lack of prior confrontation among the parties before the Lupong Tagapayapa
pursuant to Presidential Decree No. 1508 does not affect the jurisdiction of the Metropolitan Trial
Court over the action for unlawful detainer. (It is presumed that the complaint was filed within one
year from the demand to vacate.) (Rayales vs. I AC,
127 SCRA 470)
Moreover, by answering the complaint and setting up their defense without objecting to the
jurisdiction of the court, they are estopped from raising the question of jurisdiction. (Tijam vs.
Sabonghanoy, 23 SCRA 29)
(b) Luis failure to resort to the conciliation process affects the sufficiency of his cause of action and
makes his complaint subject to dismissal on the ground of lack of cause of action or prematurity.
(Rayales vs. IAC, supra)
4. Test of the sufficiency of a cause of action
xxx
Rolando filed a petition for declaration of the nullity of his marriage to
Carmela because of the alleged psychological incapacity of the latter. After trial, the court
rendered judgment dismissing the petition on the ground that Rolando failed to prove the
psychological incapacity of his wife. The judgment having become final, Rolando filed
another petition, this time on the ground that his marriage to Carmela had been celebrated
without a license. Is the second action barred by the judgment in the first? Why (2%)
SUGGESTED ANSWER:
No, the second action is not barred by the judgment in the first because they are different causes of
action. The first is for annulment or marriage on the ground of psychological incapacity under
Article 36 of the Family Code, while the second is for declaration of nullity of the marriage in view
of the absence of a basic requirement, which Is a marriage license. [Arts. 9 and 35(3), Family
Code]. They are different causes of action because the evidence required to prove them are not the
same. [Pagsisfhan v. Court of Appeals, 95 SCRA 540 (1980) and other cases].
Q: Agustin, a 21-year old son of the spouses Edgardo and Gloria, was a paying passenger
who suffered serious physical injuries when the bus he was riding fell
off a cliff due to the recklessness of its driver. The bus belonged to the Inter-City
Transit.
The spouses, together with Agustin, sued for damages. After Inter- City Transit filed its
answer, Agustin, in consideration of P10,000, executed a “Release of Claim.” On the basis
thereof, Inter-City filed a motion to dismiss alleging that the claim had already been paid and
released.
Plaintiff-spouses opposed the motion and asserted that their son was totally dependent on
them for support; that his hospitalization and other medical expenses were shouldered by
them; that they were not even consulted on the “Release of Claim”; and, that the “Release of
Claim” could not operate as a valid ground for dismissal because it did not have the
conformity of all the parties since only their son, Agustin, signed it. Decide the motion to
dismiss. (1989 Bar Question)
Answer:
Motion to dismiss is granted. The contract of carriage was between Agustin, who was of legal age,
and Inter-City Transit. Hence, the “Release of Claim" executed by him is valid. (Baliwag Transit
vs. Court of Appeals, January 31, 1989).
Motion to dismiss is granted only with respect to Agustin. The parents of Agustin have a cause of
action against Inter-City Transit to the extent of the expenses incurred by them due to the
recklessness of its driver.
5. Splitting a single cause of action and its effects
A. What is the rule against splitting a cause of action and its-effect on the respective
rights of the parties for failure to comply with the same? (2%)
B. A purchased a lot from B for PI,500,000.00. He gave a down payment of
P500,000.00, signed a promissory note payable thirty days after date, and as a security for the
settlement of the obligation, mortgaged the same lot to B.
When the note fell due and A failed to pay, B commenced suit to recover from
A the balance of P1,000,000.00. After securing a favorable judgment on his claim, B brought
another action against A before the same court to foreclose the mortgage. A now files a
motion to dismiss the second action on the ground of bar by prior judgment. Rule on the
motion. (2%)
SUGGESTED ANSWER:
A. The rule against splitting a cause of action and its effect are that if two or more suits are
instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for the dismissal of the others. (Sec.
4, Rule 2 of the 1997 Rules)
B. The motion to dismiss should be granted. When B commenced suit to collect on the promissory
note, he waived his right to foreclose the mortgage. B split his
cause of action.
Q: Give the effects of the following:
A. Splitting a single cause of action; and [3%] (1998 Bar Question)

B. x x x
SUGGESTED ANSWER:
A. The effect of splitting a single cause of action is found in the rule as follows: If two or more
suits are instituted on the basis of the same cause of action, the filing of one or a judgment on the
merits in any one is available as a ground for the dismissal of the others. (Sec. 4 of Rule 2, 1997
Rules of Civil Procedure.)
B. x x x
Q: Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation and Y

Corporation to compel them to interplead. He alleged therein that the three corporations
claimed title and right of possession over the goods deposited in his warehouse and that he
was uncertain which of them was entitled to the goods. After due proceedings, judgment was
rendered by the court declaring that X Corporation was entitled to the goods. The decision
became final and executory.
Raphael filed a complaint against X Corporation for the payment of PI00,000.00 for storage
charges and other advances for the goods. X Corporation filed a motion to dismiss the
complaint on the ground of res judicata. X Corporation alleged that Raphael should have
incorporated in his complaint for interpleader his claim for storage fees and advances and
that for his failure he was barred from interposing his claim. Raphael replied that he
could not have claimed storage fees and other advances in his complaint for interpleader
because he was not yet certain as to who was liable therefore.
Resolve the motion with reasons. (4%) SUGGESTED ANSWER:

The motion to dismiss should be granted. Raphael should have incorporated in his complaint for
interpleader his claim for storage fees and advances. They are part of Raphael’s cause of action
which he may not split. The filing of the interpleader is available as a ground for the dismissal of
the second case. (Sec. 4, Rule 2, 1997 Rules of Civil Procedure.) It is akin to a compulsory
counterclaim which, if not set up, is barred. (Sec. 2, Rule 9, 1997 Rules of Civil Procedure). The
law also abhors the
multiplicity of suits; hence, the claim for storage fees should have been made part of his cause of
action in the interest of complete adjudication of the controversy and its incidents. [Arreza v. Diaz,
364 SCRA 88 [2001]).
ALTERNATIVE SUGGESTED ANSWER:
The motion to dismiss should not be granted. Raphael not being a party to the case cannot file a
counter complaint. A complaint for interpleader which is a special civil action is merely an action
for the parties to interplead among themselves. The claim for storage fees is a separate and distinct
cause of action. It is an ordinary action for collection which cannot be joined in a special civil
action. (Sec. 5(b) Rule 2)
6. Joinder and mis-joinder of causes of action
The following are accurate statements on joinder of causes of action, except: (2012 BAR)
a. joinder of actions avoids multiplicity of suits.
b. joinder of actions may include special civil actions. c. joinder of causes of action is permissive.
d. the test of jurisdiction in case of money claims in a joinder of causes of
act1on, is the "totality rule".
A sued B in the RTC of Quezon City, joining two causes of action: for partition of real
property and breach of contract with damages. Both parties reside in Quezon City but the
real property is in Manila. May the case be dismissed for improper venue? (2011 BAR)
(A) Yes, since causes of action pertaining to different venues may not be joined in one action.
(B) No, since causes of action pertaining to different venues may be joined in the
RTC if one of the causes of action falls within its jurisdiction.
(C) Yes, because special civil action may not be joined with an ordinary civil action.
(D) No, since plaintiff may unqualifiedly join in one complaint as many causes of action as he has
against opposing party.
Q: Distinguish joinder of causes of action from joinder of parties. (1996 Bar

Question) Answer:
Joinder of causes of action may be made in the same complaint by one party against another; or by
or against several parties. In cases of joinder of causes of action by one party against another, the
totality of the demand determines the Jurisdiction of the court.
But in cases of Joinder of causes of action by or against several parties, the right to relief must arise
out of the same transaction or series of transactions and there must be a common question of fact or
law. If these requisites are present, the totality of the demand determines the jurisdiction of the
court. {Sec. 6 of Rule 3; Flores vs. Mallare- Phiilips, 144 SCRA 377)
Q: The complaint filed before the Regional Trial Court of Manila states two (2) causes of
action, one for recission of contract and the other for the recovery of One Hundred Thousand
Pesos (PI00.000.00), both of which arose out of the same transaction.
Is the joinder of the two (2) causes of action proper? Explain. (1996 Bar Question) Answer:
Yes, since the first cause of action for rescission of contract falls within the jurisdiction of the
Regional Trial Court of Manila, because the subject is not capable of pecuniary estimation, and the
second cause of action for recovery of P100,000.00 is within the jurisdiction of a lower court and
arose out of the same transaction, both may be joined in the complaint filed with the Regional Trial
Court. {Sec. 5 of Rule 2)
A. What is the rule on joinder of causes of action? (2%)

B. A secured two loans from B, one for P500.000.00 and the other for
P1,000,000.00, payable on different dates. Both have fallen due. Is B obliged to file only one
complaint against A for the recovery of both loans? Explain. (2%)
SUGGESTED ANSWER:
A. The rule on joinder of causes of action is that a party may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against an opposing party,
provided that the rule on joinder of parties is complied with; the joinder shall not include special
civil actions or actions governed by special rules, but may include causes of action pertaining to
dif-ferent venues Or jurisdictions provided one cause of action falls within the jurisdiction of a
Regional Trial Court and venue lies therein; and the aggregate amount claimed shall be the test of
jurisdiction where the claims in all the causes of action are principally for the recovery of money.
(Sec. 5, Rule
2 of the 1997 Rules)
B. No. Joinder is only permissive since the loans are separate loans which may be governed by the
different terms and conditions. The two loans give rise to two separate causes of action and may be
the basis of two separate complaints.
Q: Give the effects of the following:
x x x
Non-joinder of a necessary party. [2%] (1998 Bar Question) SUGGESTED ANSWER:
xxx
The effect of the non-joinder of a necessary party may be stated as follows: The court may order
the inclusion of an omitted necessary party if jurisdiction over his
person may be obtained. The failure to comply with the order for his inclusion without
justifiable cause is a waiver of the claim against such party. The court may proceed with the action
but the judgment rendered shall be without prejudice to the rights of such necessary party. (Sec. 9
of Rule 3, 1997 Rules of Civil Procedure.)
Q: Perry is a resident of Manila, while Ricky and Marvin are residents of Batangas City.
They are the co-owners of a parcel of residential land located in Pasay City with an assessed
value of P100,000.00. Peny borrowed PI00,000.00 from Ricky which he promised to pay on or
before December 1, 2004. However, Perry failed to pay his loan. Perry also rejected Ricky
and Marvin's proposal to partition the property.
Ricky filed a complaint against Perry and Marvin in the Regional Trial Court of Pasay City
for the partition of the property. He also incorporated in his complaint his action against
Perry for the collection of the latter's PI00,000.00 loan, plus interests and attorney's fees.
State with reasons whether it was proper for Ricky to join his causes of action in his
complaint for partition against Perry and Marvin in the Regional Trial Court of Pasay City.
(5%)(2005 Bar Question)
SUGGESTED ANSWER:
It was not proper for Ricky to join his causes of action against Perry in his complaint for partition
against Perry and Marvin. The causes of action may be between the same parties, Ricky and Perry,
with respect to the loan but not with respect to the partition which includes Marvin. The joinder is
between a partition and a sum of money, but the partition is a special civil action under Rule 69,
which cannot be joined. (Sec. 5, Rule 2, 1997 Rules of Civil Procedure.}. Also, the causes of action
pertain to different venues and jurisdictions. The case for a sum of money pertains to the municipal
court and cannot be filed in Pasay City because the plaintiff is from Manila while Ricky and
Marvin are from Batangas City. (Sec. 5, Rule 2, 1997 Rules of Civil Procedure.)
Q: Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation and Y

Corporation to compel them to interplead. He alleged therein that the three corporations
claimed title and right of possession over the goods deposited in his warehouse and that he
was uncertain which of them was entitled to the goods. After due proceedings, judgment
was rendered by the court
declaring that X Corporation was entitled to the goods. The decision became final and
executory.
Raphael filed a complaint against X Corporation for the payment of PI00,000.00 for storage
charges and other advances for the goods. X Corporation filed a motion to dismiss the
complaint on the ground of res judicata. X Corporation alleged that Raphael should have
incorporated in his complaint for interpleader his claim for storage fees and advances and
that for his'failure he was barred from interposing his claim. Raphael replied that he
could not have claimed storage fees and other advances in his complaint for interpleader
because he was not yet certain as to who was liable therefore.
Resolve the motion with reasons. (4%) SUGGESTED ANSWER:

The motion to dismiss should be granted. Raphael should have incorporated in his complaint for
interpleader his claim for storage fees and advances. They are part of Raphael’s cause of action
which he may not split. The filing of the interpleader is available as a ground for the dismissal of
the second case. (Sec. 4, Rule 2, 1997 Rules of Civil Procedure.) It is akin to a compulsory
counterclaim which, if not set up, is barred. (Sec. 2, Rule 9, 1997 Rules of Civil Procedure). The
law also abhors the multiplicity of suits; hence, the claim for storage fees should have been made
part of his cause of action in the interest of complete adjudication of the controversy and its
incidents. [Arreza v. Diaz, 364 SCRA 88 [2001]).
The motion to dismiss should not be granted. Raphael not being a party to the case cannot file a
counter complaint. A complaint for interpleader which is a special civil action is merely an action
for the parties to interplead among themselves. The claim for storage fees is a separate and distinct
cause of action. It is an ordinary action for collection which cannot be joined in a special civil
action. (Sec. 5(b) Rule 2)
Q: “A”, the surviving husband of “B” executed in favor of “C” a deed entitled “Contract of
Sale a Retro” over a certain parcel of land registered under the Torrens System in which the
owner is described as “A, married to B.” Subsequently, “A” sued “C” for reformation of the
contract, alleging that what was agreed upon was really a mortgage and not a sale a retro.
“AY” complaint was dismissed for failure to prosecute, however, and the dismissal
became final.
A year later, the children of “A” and “B” sued 4tC” for the annulment of the
Contract of sale a
Retro, alleging that the subject piece of land was acquired by their parents during their
marriage, hence their father had no right to include in the sale the children's interest in the
property as heirs of their mother, such children not having consented to the sale.
“C" moved to dismiss the complaint on the ground of bar by former judgment. Resolve the
motion to dismiss. Explain. (1987 Bar Question) Answer:
Motion to dismiss denied. There is no bar by former judgment because there is no identity of
causes of action. The cause of action of the children of “A” and “B” is different from the cause of
action of “A”. “A" had no right to sell the parcel of land inasmuch as the same was the conjugal
property of “A" and “B". “A” could legally sell only his conjugal share of said property and could
not legally sell the conjugal share of his deceased wife which was inherited by * their children
without their consent.
C. Parties to civil actions
1. Real parties-in-interest; indispensable parties; representatives as parties;

necessary parties; indigent parties; alternative defendants
Allan was riding a passenger jeepney driven by Ben that collided with a car driven by Cesar,
causing Allan injury. Not knowing who was at fault, what is the best that Allan can do? (2011
BAR)
(A) File a tort action against Cesar.
(B) Await a judicial finding regarding who was at fault. (C) Sue Ben for breach of contract of
carriage.
(D) Sue both Ben and Cesar as alternative defendants.
In which of the following cases is the plaintiff the real party in interest? (2011
BAR)
(A) A creditor of one of the co-owners of a parcel of land, suing for partition
(B) An agent acting in his own name suing for the benefit of a disclosed principal
(C) Assignee of the lessor in an action for unlawful detainer
(D) An administrator suing for damages arising from the death of the decedent
Q: Strauss filed a complaint against Wagner for cancellation of title. Wagner moved to
dismiss the complaint because Grieg, to whom he mortgaged the property as duly annotated
in the TCT, was not impleaded as defendant. (2015)
a. Should the complaint be dismissed?
A: NO. The complaint should not be dismissed because the mere non-joinder of an indispensable
party is not a ground for the dismissal of the action (Sec. 11, Rule 3; Republic v. Hon. Mangotara,
G.R. No. 170375, July 7, 2010).
b. If the case should proceed to trial without Grieg being impleaded as a party to the case,
what is his remedy to protect his interest?
A: If the case should proceed to trial without Grieg being impleaded as a party, he may intervene in
the action (Sec. 1, Rule 19). He may also file a petition for annulment of judgment under Rule 47
of the Rules of Court.
In Metrobank v. Hon. Floro Alejo, G.R. No. 141970, September 10, 2001, the Supreme Court held
that it in a suit to nullify an existing Torrens Certificate of Title (TCT) in which a real estate
mortgage is annotated, the mortgagee is an indispensable party. In such suit, a decision cancelling
the TCT and the mortgage annotation is subject to a petition for annulment of judgment, because
the non-joinder of a mortgagee deprived the court of jurisdiction to pass upon the controversy.
Q: Isagani drove the car of his father, Pedro, and left it in the parking area of the Fairview
motel where he was a guest. Isagani entrusted the key of the car to a security guard hired by
the Prime Resort Company, the owner/operator of the motel. Emilio, pretending to be the
brother of Isagani, got the key from the security guard and drove the car away.
The car was never recovered. Later, Pedro sued Prime Re¬sort for the value of the
carnapped vehicle plus damages. Prime Resort sets up the defense that Pedro has no
interest in the case, hence, has no cause of action, as he was not the guest of the motel but his
son, Isagani. Is the defense tenable? Explain. (1989
Bar Question) Answer:
No, because Pedro is the owner of the car which was carnapped due to the fault or negligence of
the security guard of the owner/operator of the motel in which his son Pedro was a guest. Hence,
Pedro is a real party in interest. (Dilson Enterprises vs. IAC, Feb. 27, 1989).
2. Compulsory and Permissive Joinder of parties
Q: Distinguish joinder of causes of action from joinder of parties. (1996 Bar

Question) Answer:
Joinder of causes of action may be made in the same complaint by one party against another; or by
or against several parties. In cases of joinder of causes of action by one party against another, the
totality of the demand determines the Jurisdiction of the court.
But in cases of Joinder of causes of action by or against several parties, the right to relief must arise
out of the same transaction or series of transactions and there must be a common question of fact or
law. If these requisites are present, the totality of the demand determines the jurisdiction of the
court. {Sec. 6 of Rule 3; Flores vs. Mallare- Phiilips, 144 SCRA 377)
Q: A filed an action against B, driver of the truck. C. owner of said truck, and D, insurer of
the truck, for damages when the truck rammed his car. A and D entered into a compromise
agreement upon an amount lower than that sued upon by A against all three defendants.
Accordingly, the court dismissed the case against D. B and C moved to dismiss the case
against them on the ground that, being indispensable parties under a common cause of
action, non-inclusion of D would not make the case prosper.
Are the defendants indispensable parties? How would you resolve the motion. (1996 Bar
Question)
Answer:
I would deny the motion. D is not an indispensable party. The liability of the insurer D is based on
the contract of insurance whereas the liability of B and C is based on quasi-delict. Hence, the
plaintiff does not have a common cause of action against all the defendants and the dismissal of the
complaint against D will not affect the complaint against B and C. (Inson vs. Court of Appeals. 239
SCRA
58)
P sued A and B in one complaint in the RTC- Manila, the cause of action against A being on
an overdue promissory note for P300,000.00 and that against B being on an alleged balance
of P300.000.00 on the purchase price of goods sold on credit. Does the RTC-Manila have
jurisdiction over the case? Explain. (3%)
xxx
SUGGESTED ANSWER:
A. No, the RTC- Manila has no jurisdiction over the case. A and B could not be joined as
defendants in one complaint because the right to relief against both defendants do not arise out of
the same transaction or series of transactions and there is no common question of law or fact
common to both. (Rule 3, sec. 6). Hence, separate complaints will have to be filed and they would
fall under the jurisdiction of the Metropolitan Trial Courts. [Flores v. Mall a re-Philipps, 144
SCRA 377 (1986)].
3. Misjoinder and Non-joinder of parties
Unexplained or unjustified non-joinder in the Complaint of a necessary party despite court

order results in (2011 BAR)
(A) the dismissal of the Complaint. (B) suspension of proceedings.
(C) contempt of court.
(D) waiver of plaintiff’s right against the unpleaded necessary party.
Q: X was driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan. Due to
his negligence, X hit and injured V who was crossing the street: Lawyer L, who witnessed the
incident, offered his legal services to V.
V, who suffered physical injuries including a fractured wrist bone, underwent surgery to
screw a metal plate to his wrist bone. On complaint of V, a criminal case for Reckless
Imprudence Resulting in Serious Physical Injuries was filed against X before the Municipal
Trial Court (MTC) of Sta. Maria. Atty. L, the private prosecutor, did not reserve the filing of
a separate civil action.
V subsequently filed a complaint for Damages against X and Y before the Regional
Trial Court of Pangasinan in Urdaneta where he resides. In his "Certification against Forum
Shopping” V made no mention of the pendency of the, criminal case in Sta. Maria.
xxxxxx
Suppose only X was named as defendant in the complaint for damages, may he move for the
dismissal of the complaint for failure of V to implead Y as an
indispensable party? (2%)
SUGGESTED ANSWER:
No, X may not move for dismissal of the civil action for damages on the contention that Y
is an indispensable party who should be impleaded. Y is not an indispensable party but only a
necessary party. Besides, non-joinder and' misjoinder of parties is not a ground for dismissal of
actions (Rule 3, Sec. 11, Rules of Court.)
Q: Florencio sued Guillermo for partition of a property they owned in common. Guillermo
filed a motion to dismiss the complaint because Florencio failed to implead Hernando and
Inocencio, the other co-owners of the property. As judge, will you grant the motion to
dismiss? Explain. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
NO, because the non-joinder of parties is not a ground for dismissal of action
(Rule 3, Sec 11). The motion to dismiss should be denied.
4. Class suit
Q: Distinguish a derivative suit from a class suit. (2005 Bar Question) SUGGESTED
ANSWER:
A derivative suit is a suit in equity that is filed by a minority shareholder in behalf of a corporation
to redress wrongs committed against it, for which the directors refuse to sue, the real party in
interest being the corporation itself (Lim v. Lim-Yu, 352 SCRA 216 [2001]). A class suit is filed in
behalf of many persons so numerous that it is impracticable to join all as parties. (Sec. 12, Rule 3,
1997 Rules of Civil Procedure).
Q: Four hundred residents of Barrio Ramos Initiated a class action suit through Albert, a
former mayor of the town, to recover damages sustained due to their exposure to toxic waste
and fumes emitted by the cooking gas plant of Top Fuel Gas Corporation located in the town.
Is the class suit proper? (1994 Bar Question) Answer:

No. The class suit is not proper. Each plaintiff suffered separate and distinct damages from their
exposure to the toxic waste and fumes emitted by the cooking gas plant. Each of them has to prove
his or her damages. (Newsweek. Inc. v. Intermediate Appellate Court, 142 SCRA 171 [1986];
Heirs of passengers of Doha Paz, March 3.
1988).
Q: An airplane carrying 200 passengers crashed somewhere in the jungles of Agusan. All the
passengers and crew perished. Twenty (20) relatives of the fatalities filed for themselves and
in behalf of the relatives of all those who perished in the mishap a class suit for damages
totaling P5 Million against the airline. The propriety of the class suit is questioned by the
defendant. Resolve the issue. (1991 Bar Question)
Answer:
A class suit is not proper in this case because there is no common or general interest in the subject
matter of the controversy. Each of the plaintiffs has a separate claim for damages. (Newsweek v.
IAC, 142 SCRA 171; Administrative Matter No. 88-1-
646-0 on Request of Plaintiffs, heirs of passengers of the Dona Paz, March 3, 1988.)
5. Effect of death of party-litigant
Q: Prince Chong entered into a lease contract with King Kong over a commercial building
where the former conducted his hardware business. The lease contract
stipulated, among others, a monthly rental of P50,000.00 for a four (4) – year period
commencing on January 1, 2010. On January 1, 2013, Prince Chong died. Kin II Chong was
appointed administrator of the estate of Prince Chong, but the former failed to pay the
rentals for the months of January to June 2013 despite King Kong’s written demands. Thus,
on July 1, 2013, King Kong filed with the Regional Trial Court (RTC) an action for rescission
of contract with damages and payment of accrued rentals as of June 30, 2013. (2014)
a. Can Kin II Chong move to dismiss the complaint on the ground that the RTC is without
jurisdiction since the amount claimed is only P300,000.00?
A: NO. Kin II Chong cannot move to dismiss the Complaint. An action for rescission of contract
with damages and payment of accrued rentals is considered incapable of pecuniary estimation and
therefore cognizable by the Regional Trial Court. (Ceferina De Ungria v. Court of Appeals, G.R.
No. 165777, July 25, 2011).
b. If the rentals accrued during the lifetime of Prince Chong, and King Kong also filed the
complaint for sum of money during that time, will the action be dismissible upon Prince
Chong’s death during the pendency of the case?
A: NO. The action will not be dismissible upon Prince Chong’s death during the pendency of the
case. When the action is for recovery of money arising from contract, and defendant dies before
entry of final judgment in the court in which the action was pending at the time of such death, it
shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff shall be enforced under Rule 86 (Sec. 20, Rule 3).
Relative thereto, since the complaint for sum of money filed by King Kong survives the death of
Prince Chong, the case shall not be dismissed and the Court shall merely order the substitution of
the deceased defendant. (Atty. Rogelio E. Sarsaba v. Fe Vda. De Te, G.R. No. 175910, July 30,
2009).
A sued B for ejectment. Pending trial, B died, survived by his son, C. No substitution of party
defendant was made. Upon finality of the judgment against B, may the same be enforced
against C? (2011 BAR)
(A) Yes, because the case survived B’s death and the effect of final judgment in an ejectment case
binds his successors in-interest.
(B) No, because C was denied due process.
(C) Yes, because the negligence of B’s counsel in failing to ask for substitution, should not
prejudice A.
(D) No, because the action did not survive B’s death.
Q: Cresencio sued Dioscoro for collection of a sum of money. During the trial, but after the
presentation of plaintiffs evidence,-Dioscoro died. Atty. Cruz, Dioscoro’s counsel, then filed a
motion to dismiss the action on the ground of his client’s death. The court denied the motion
to dismiss and. instead, directed counsel to furnish the court with the names and addresses of
Dioscoro’s heirs and ordered
that the designated administrator of Dioscoro’s estate be substituted as representative party.
After trial, the court rendered judgment in favor of Cresencio. When the decision had
become final and executory, Cresencio moved for the issuance of a writ of execution against
Dioscoro’s estate to enforce his judgment claim. The court issued the writ of execution. Was
the court’s issuance of the writ of execution proper? Explain. (2%)
SUGGESTED ANSWER:
NO, the trial court's issuing the writ of execution is not proper and in excess of jurisdiction, since
the judgment obligor is already dead when the writ was issued. The judgment for money may only
be enforced against the estate of the deceased defendant in the probate proceedings, by way of a
claim filed with the probate court in accordance with Rule 86 of the Rules of Court.
Cresencio should enforce that judgment in his favor in the settlement proceedings of
the estate of Dioscoro as a money claim in accordance with Rule 86 or Rule 88 as the case may be.
Q: PJ engaged the services of Atty. ST to represent him in a civil case filed by OP against him
which was docketed as Civil Case No. 123. A retainership agreement was executed between
PJ and Atty. ST whereby PJ promised to pay Atty. ST a retainer sum of P24,000.00 a year
and to transfer the ownership of a parcel of land to Atty. ST after presentation of PJ's
evidence. PJ did not comply with his undertaking. Atty. ST filed a case against PJ which was
docketed as Civil Case No. 456. During the trial of Civil Case No. 456, PJ died.
A. Is the death of PJ a valid ground to dismiss the money claim of Atty. ST in

Civil Case No. 456? Explain. (2%)
B. Will your answer be the same with respect to the real property being claimed by Atty. ST
in Civil Case No. 456? Explain. (2%) (2000 Bar Question)
SUGGESTED ANSWER:
A. No. Undo: Sec. 20. Rule 3, 1997 Rules of Civil Procedure, when the action is for recovery of
money arising from contract, express or Implied, and the defendant dies before entry of final
judgment in the court in which the action is pending at the time of such death, it shall not be
dismissed but shall instead be allowed to continue until entry of final Judgment. A favorable
judgment obtained by the plaintiff shall be enforced in the manner especially provided in the Rules
for prosecuting claims against the estate of a deceased person.
B. Yes, my answer is the same. An action to recover real property In any event survives
the death of the defendant (Sec. 1, Rule 87, Rules of Court). However, a favorable Judgment may
be enforced in accordance with Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure) against the
executor or administrator or successor in interest of the deceased.
A. What is the effect of the death of a party upon a pending action? (2%)
B. When A (buyer) failed to pay the remaining balance of the contract price after it became
due and demandable, B (seller) sued him for collection before the RTC. After both parties
submitted their respective evidence, A perished in a plane accident. Consequently, his heirs
brought an action for the settlement of his estate and moved for the dismissal of the collection
suit.
Will you grant the motion? Explain. (2%)
C. Will your answer be the same if A died while the case is already on appeal to the Court of
Appeals? Explain. (2%)
D. In the same case, what is the effect if B died before the RTC has rendered judgment? (2%)
SUGGESTEDANSWER:
A. When the claim in a pending action is purely personal, the death of either of the parties
extinguishes the claim and the action is dismissed. When the claim is not purely personal and is not
thereby extinguished, the party should be substituted by his heirs or his executor or administrator.
(Sec. 16, Rule 3, 1997 Rules) If the action is for recovery of money arising from contract, express
or implied, and the defendant dies before entry of final judgment in the court in which the action
was pending at the time of such death, it shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. A favorable judgment obtained by the plaintiff shall be
enforced in the manner provided in the rules for prosecuting claims against the estate of a deceased
person. (Sec. 20, Rule 3, 1997 Rules)
B. No, because the action will not be dismissed but shall instead be allowed to continue
until entry of final judgment. (Id.)
C. No. If A died while the case was already on appeal in the Court of Appeals, the case will
continue because there is no entry yet of final judgment. (Id.)
D. The effect is the same. The action will not be dismissed but will be allowed to
continue until entry of final judgment. (Id.)
Q: After termination of trial on the merits, and as the trial Judge was about to finish his
decision dismissing plaintiffs suit for payment of a purported
P369.000.00 loan, the defendant died. His counsel accordingly filed with the court a notice of
defendant's death.
Simultaneously, he moved that plaintiff’s suit be dismissed, to be thereafter pursued as a

money claim in the proceeding for the settlement of defendant’s estate. The Judge denied the
motion to dismiss on the ground that there is no need for any further proceeding since he is
going to dismiss the case anyway in a forthcoming decision. Three (3) days later, the decision
dismissing the case was promulgated.
Did the judge act correctly? Explain your answer. (1992 Bar Question) Suggested
Answer:
No, because in an action for the recovery of money, if the defendant dies before a final judgment is
rendered by the Regional Trial Court, the action shall be dismissed and prosecuted as a money
claim. (Rule 3) The fact that the Judge was ready to render a decision dismissing the case does not
prevent the application of the rule.
Yes, the Judge acted correctly in deciding the case, because the defendant died after termination of
the trial on the merits. To dismiss the case and require the parties to present their evidence all over
again before the probate court would cause unnecessary expense and delay. The plaintiff may
appeal from the decision and if the judgment is reversed, the judgment entered would then be filed
as a proven money Claim with the probate court.
Q: (a) Plaintiff sued to recover an unpaid loan and was awarded P333,000.00 by the Regional
Trial Court of Manila. Defendant did not appeal within the period allowed by law. He died
six days after the lapse of the period to appeal. Forthwith, a petition for the settlement of his
estate was properly filed with the Regional Trial Court of Pampanga where an inventory of
all his assets was filed and correspondingly approved. Thereafter, plaintiff filed a motion for
execution with the Manila court, contending therein that the motion was legally justified
because the defendant died after the judgment in the Manila court had become final. Resolve
the motion and state your reasons. (1992 Bar Question)
Suggested Answer:
Motion for execution denied.
Although the defendant died after the judgment had become final and executory, it cannot be
enforced by a writ of execution against the estate of the deceased which is in custodia legis. The
judgment should be filed as a proven money claim with the Regional Trial Court of Pampanga.
[Paredes v. Moya, 61 SCRA 527)
(b) Under the same set of facts as (a), a writ of execution was issued by the Manila court upon
proper motion three days after the lapse of the period to appeal. The corresponding levy on
execution was duly effected on defendant’s parcel of land worth P666.000.00 a day before the
defendant died. Would it be proper, on motion, to lift the levy on defendant’s property? State
the reasons for your answer.
Suggested Answer:
b) No, since the levy on execution was duly effected on defendant’s parcel of land a day before the
defendant died, it was valid. The land may be sold for the satisfaction of the judgment and the
surplus shall be accounted for by the sheriff to the corresponding executor or administrator. (Sec.
7-C of Rule 39)
Q: A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a promissory
note in the- sum of P50.000.00, for liquidated damages of P5.000.00 and attorney’s fees of
P5.000.00. After he filed his answer, Y died, but his lawyer did not file a motion to dismiss. In
the meantime, Y*s widow filed with the above court a special proceeding for the settlement of
the intestate estate of Y. The widow, Z, was appointed the administratrix of the estate. A filed
in the civil case a motion to have Y substituted by the administratrix; the latter did not
object. The court granted the motion. Trial on the merits was had. In due course, the court
rendered a decision in favor of A. At the time it was rendered, the period to file claims in the
intestate estate of Y had already lapsed. The administratrix, X, did not appeal from the
decision; and after it became final. A moved for the execution of judgment, Z opposed the
motion contending that the decision is void because the claim does not survive. The case
should have been dismissed upon the death of Y since upon his death, the court lost
jurisdiction over the case. (1991 Bar Question)
(a) Rule on the issue. Answer:

Since Y died before final Judgment in the RTC, the action for money should have been dismissed
and prosecuted as a money claim against his estate. However, since the widow. Z, who was
appointed administratrix of the estate, did not object to the trial on the merits and did not appeal
from the decision, she is deemed to have waived the right to have the claim litigated in the estate
proceedings. Moreover, she is estopped from questioning the court's jurisdiction. Hence, the
decision is valid. (Sec. 21 of Rule 3; Ignacio v. Pambusco, 20 SCRA 126; Echaus u. Blanco. 179
SCRA 704)
If the opposition is without merit, can the writ of execution be validly issued?
Answer:
No, because a Judgment for money cannot be enforced by a writ of execution against the estate of
the deceased which is in custodia legis. (Sec. 7 of Rule 39; Paredes v. Moya, 61 SCRA 527)
If it cannot be issued, what is the remedy of A? Answer:

(c) His remedy is to file a money claim against the estate of Y based on the judgment. Although the
period for filing money claims has already lapsed, the same may be allowed before an order of
distribution is entered. (Secs. 2 and 5 of Rule 86; Echaus v. Blanco, supra)
D. Venue
Q: A law was passed declaring Mt. Karbungko as a protected area since it was a major
watershed. The protected area covered a portion located in Municipality A of the Province I
and a portion located in the City of Z of Province II. Maingat is the leader of Samahan ng
Tagapag-ingat ng Karbungko (STK), a people's organization. He learned that a portion of
the mountain located in the City of Z of Province II was extremely damaged when it was
bulldozed and leveled to the ground, and several trees and plants were cut down and burned
by workers of World Pleasure Resorts, Inc. (WPRI) for the construction of a hotel and golf
course. Upon inquiry with the project site engineer if they had a permit for the project,
Maingat was shown a copy of the Environmental Compliance Certificate (ECC) issued by the
DENR-EMB, Regional Director (RD-DENR-EMB). Immediately, Maingat and STK filed a
petition for the issuance of a writ of continuing mandamus against RD-DENR-EMB and
WPRI with the RTC of Province I, a designated environmental court, as the RD-DENR-EMB
negligently issued the ECC to WPRI.
On scrutiny of the petition, the court determined that the area where the alleged actionable
neglect or omission subject of the petition took place in the City of Z of Province II, and
therefore cognizable by the RTC of Province II. Thus, the court dismissed outright the
petition for lack of jurisdiction. (2015)
a. Was the court correct in motu proprio dismissing the petition?
A: NO. The court was not correct in motu propio dismissing the petition. While it appears that the
alleged actionable neglect or omission took place in the City of Z of Province II and, therefore
cognizable by the RTC of Province II, nonetheless, venue is not jurisdictional, and it can be waived
in a special civil action for continuing mandamus (Dolot v. Hon. Paje, G.R. No. 199199, August 27,
2013).
Besides, under Section 1, Rule 9 of the Rules of Court, defenses and objections not pleaded in the
answer or in the motion to dismiss are deemed waived. Hence, the court cannot motu propio
dismiss the case on the ground of improper venue.
Q: Assuming that the court did not dismiss the petition, the RD-DENR-EMB in his Comment
moved to dismiss the petition on the ground that petitioners failed to appeal the issuance of
the ECC and to exhaust administrative remedies provided in the DENR Rules and
Regulations. Should the court dismiss the petition?
A: YES, the court should dismiss the petition because the proper procedure to question defect in an
ECC is to follow the DENR administrative appeal process in accordance with the doctrine of
exhaustion of administrative remedies (Dolot v. Hon. Paje, G.R. No.
199199, August 27, 2013; Paje v. Casiño, G.R. No. 207257, February 3, 2015).
1. Venue versus jurisdiction
Q: Distinguish jurisdiction from venue? 2% (2006 Bar Question) SUGGESTED ANSWER:
Jurisdiction is the power of the Court to decide a case on the merits, while venue refers to the place
where the suit may be filed. In criminal actions, however, venue is jurisdictional. Jurisdiction may
not be conferred upon a court by consent through waiver, but venue may be waived except in
criminal cases.
2. Venue of real actions
Q: Angela, a resident of Quezon City, sued Antonio, a resident of Makati City before the
RTC of Quezon City for the reconveyance of two parcels of land situated in Tarlac and
Nueva Ecija, respectively. May her action prosper? (3%)
SUGGESTED ANSWER:
Yes, the action may prosper because improper venue can be waived; and there appears to be
no objection from the defendant. An action for reconveyance of parcels of land partakes of an
action to recover title to or possession of such land; hence a real action which should be filed in the
place where the parcels of land are situated in Tarlac and Nueva Ecija.
Assuming that the action was for foreclosure on the mortgage of the same parcels of
land, what is the proper venue for the action? (3%)
SUGGESTED ANSWER:
If the action was for foreclosure of mortgage, the action may be filed either in Tarlac or
Nueva Ecija where any of the parcels of land is situated. Only one action for foreclosure
need be filed as only one contract of mortgage had been constituted. (Bank of P.I. v. Green, 57
Phil. 712 [1932]).
3. Venue of personal actions
Gary who lived in Taguig borrowed P1 million from Rey who lived in Makati under a
contract of loan that fixed Makati as the venue of any action arising from the contract. Gary
had already paid the loan but Rey kept on sending him letters of demand for some balance.
Where is the venue of the action for harassment that Gary wants to file against Rey? (2011
BAR)
(A) In Makati since the intent of the party is to make it the venue of any action between them
whether based on the contract or not.
(B) In Taguig or Makati at the option of Gary since it is a personal injury action. (C) In Taguig
since Rey received the letters of demand there.
(D) In Makati since it is the venue fixed in their contract.
Q: A resident of Lingayen, Pangasinan sued X. a resident of San Fernando. La Union in the

Regional Trial Court (RTC) of Quezon City for the collection of a debt of PI million.
X did not file a motion to dismiss for improper venue but filed his answer raising therein
improper venue as an affirmative defense. He also filed a counterclaim for P80.000 against A
for attorney’s fees and expenses for litigation. X moved for a preliminary hearing on said
affirmative defense. For his part, A filed a motion to dismiss the counterclaim for lack of
jurisdiction.
Rule on the affirmative defense of improper venue. [3%]

xxx
SUGGESTED ANSWER:
There is improper venue. The case for a sum of money, which was filed in Quezon City, is a
personal action. It must be filed in the residence of either the plaintiff, which is in Pangasinan, or of
the defendant, which is in San Fernando, La Union. (Sec. 2 of Rule 4,
1997 Rules of Civil Procedure.) The fact that it was not raised in a motion to dismiss does not
matter because the rule that If improper venue is not raised in a motion to dismiss it is deemed
waived was removed from the 1997 Rules of Civil Procedure. The new Rules provide that if no
motion to dismiss has been filed, any of the grounds for dismissal may be pleaded as an affirmative
defense in the answer. (Sec. 6 of Rule 16.)
xxx
Q: X, a resident of Angeles City, borrowed P300.000.00 from A, a resident of Pasay City. In

the loan agreement, the parties stipulated that “the parties agree to sue and be sued in the
City of Manila.”
A. In case of non-payment of the loan, can A file his complaint to collect the loan from X in
Angeles City?
B. Suppose the parties did not stipulate in the loan agreement as to the venue, where
can A file his complaint against X?
C. Suppose the parties stipulated in their loan agreement that Venue for all suits arising from
this contract shall be the courts in Quezon City," can A file his complaint against X in Pasay
City? (1997 Bar Question)
Answer:
A. Yes, because the stipulation in the loan agreement that “the parties agree to sue and be sued in
the City of Manila’ does not make Manila the “exclusive venue thereof." (Sec. 4 of Rule 4, as
amended by Circular No. 13-95: Sec. 4 of new Rule 4) Hence, A can file his complaint in Angeles
City where he resides. (Sec. 2 of Rule 4).
B. If the parties did not stipulate on the venue, A can file his complaint either in
Angeles City where he resides or in Pasay City where X resides. (Id).
C. Yes, because the wording of the stipulation does not make Quezon City the exclusive venue.
(Philbanking v. Tensuan, 230 SCRA 413; Unimasters
Conglomeration. Inc. v. CA. GR-119657, Feb. 7. 1997).
Alternative Answer:
A. No. If the parties stipulated that the venue “shall be in the courts in Quezon City", A cannot file
his complaint in Pasay City because the use of the word “shall" makes Quezon City the
exclusive venue thereof. (Id. See also Hoechst Philippines vs. Torres, 83 SCRA 297).
4. Venue of actions against non-residents

5. When the rules on venue do not apply
The mortgage contract between X, who resides in Manila, and Y, who resides in Naga,
covering land in Quezon provides that any suit arising from the agreement may be filed
"nowhere else but in a Makati court". Y must thus sue only in: (2012
BAR)
a. Makati;
b. Makati and/or Naga;
c. Quezon and/or Makati;
d. Naga.
Which of the following stipulations in a contract will supersede the venue for actions that the
rules of civil procedure fix? (2011 BAR)
(A) In case of litigation arising from this contract of sale, the preferred venue shall be in the proper
courts of Makati.
(B) Should the real owner succeed in recovering his stolen car from buyer X, the latter shall have
recourse under this contract to seller Y exclusively before the proper Cebu City court.
(C) Venue in case of dispute between the parties to this contract shall solely be in the proper courts
of Quezon City.
(D) Any dispute arising from this contract of sale may be filed in Makati or
Quezon City.
(a) A complaint entitled “A as Attorney -In- Fact for X, plaintiff, versus B, Defendant” was
filed to recover a car in the possession of B. A’s Power of Attorney expressly authorized him
(A) to sue for the recovery of the car. B files a Motion to Dismiss the Complaint for lack of
capacity to sue.
Decide the Motion. Explain.
(b) A and B, both residents of Batangas, entered into a Contract of Lease over a parcel of
land belonging to B, located in Calapan, Mindoro. A filed a complaint before the Regional
Trial Court, sitting in Batangas City, for the rescission of the Lease Contract of the land in
Mindoro. B filed a Motion to Dismiss on the ground that the Batangas Court did not have
jurisdiction over the subject matter, the land being located in Mindoro. B however did
not alleged improper venue in his motion.
Decide with reasons. Answer:

A. Motion to dismiss is denied. A has legal capacity to sue, but is not the real party in interest. The
ground of the motion to dismiss should have been that the complaint states no cause of action
because it was filed by “A as Attorney-in- fact for X.” The complaint should have been filed in the
name of X as plaintiff. (Arroyo vs. Granada, 18
Phil. 484)
B. Motion to dismiss is denied. The fact that the land is located in Mindoro does not affect the
jurisdiction of the Regional Trial Court sitting in Batangas City. The proper venue of the action is
the Regional Trial Court in Mindoro. However, since B did not object to the improper venue in his
motion, that ground is deemed waived. (Sec. 4 of Rule 4)
E. Pleadings
1. Kinds of pleadings
A. What pleadings are allowed by the rules?

B. What pleadings must be verified?
C. x x x
Answer:
A. The pleadings allowed by the rules are the complaint, the answer, the counterclaim, the
crossclaim, the reply, the third-party (fourth-party etc.) complaint. (Sec. 2 of Rule
6)
B. Those required by law to be verified, such as:
a. Forcible Entry and Unlawful Detainer. (Sec. 1 of Rule 70)

b. Denial of genuineness and due execution of a written instrument which is the basis of an action
or defense. (Sec. 8 of Rule 8)
c. Denial of allegations of usury. (Sec. 1 of Rule 9)
d. Petitions for certiorari, prohibition and mandamus. (Rule 65)
e. Pleadings in Summary Procedure. C. x x x
a. Complaint
b. Answer (Negative defenses, Negative pregnant, Affirmative defenses)
Q: For failure of KJ to file an answer within the reglementary period, the Court, upon
motion of LM, declared KJ in default. In due time, KJ filed an unverified motion to lift the
order of default without an affidavit of merit attached to it. KJ however attached to the
motion his answer under oath, stating in said answer his reasons for his failure to file an
answer on time, as well as his defenses. Will the motion to lift the order of default prosper?
Explain. (3%)
SUGGESTED ANSWER:
Yes, there is substantial compliance with the rule. Although the motion is unverified, the answer
attached to the motion is verified. The answer contains what the motion to lift the order of default
and the affidavit Of merit should contain, which are the reasons for movant's failure to answer as
well as his defenses. (Sec. 3 (bj of Rule 9,
1997 Rules of Civil Procedure; Cf. Citibank, N.A. v. Court of Appeals, 304 SCRA 679,
[19991; Consul v. Consul. 17 SCRA 667, 671 (19661; Tolentino v. Carlos, 66 Phil. 140,
143-144 (19381, Nasser v. Court of Appeals, 191 SCRA 783 (19921).
c. Counterclaims (Compulsory counterclaim, Permissive counterclaim, Effect on the
counterclaim when the complaint is dismissed)
What is a counterclaim? (2%)

xxxxxx
SUGGESTED ANSWER:
A counterclaim is any claim which a defending party, may have against an opposing party. (Sec. 6,
Rule 6 of the 1997 Rules)
Q: True or False. If the answer is false, explain your answer briefly.
xxxxxxxxx
A counterclaim is a pleading. (2%) (2007 Bar Question) SUGGESTED ANSWER:
True. A counterclaim is a pleading by which a defending party makes a claim against an opposing
party (Sec. 6, Rule 6, Rules of Court).
Q: Is a “motion to dismiss with counterclaim" sanctioned by the Rules of Court?
A. If your answer is YES, state your reasons.
B. If your answer is NO, give your reasons and state what the defendant should instead file in
court to preserve his counterclaim while maintaining the ground asserted in his motion to
dismiss as an issue that should be the subject of a preliminary hearing. (1992 Bar Question)
Suggested Answer:
No, because a counterclaim is contained in an answer and not in a motion to dismiss. What the
defendant should do is to plead the ground of his motion to dismiss (except
improper venue) as an affirmative defense in his answer, together with his counterclaim, and ask
for a preliminary hearing on his affirmative defense as if a motion to dismiss had been filed. (Sec. 5
of Rule 16)
Compulsory counterclaim
Q: PX filed a suit for damages against DY. In his answer, DY incorporated a counterclaim
for damages against PX and AC, counsel for plaintiff in said suit, alleging in said
counterclaim, inter alia, that AC, as such counsel, maliciously induced PX to bring the suit
against DY despite AC’s knowledge of its utter lack of factual and legal basis. In due time,
AC filed a motion to dismiss the counterclaim as against him on the ground that he is not a
proper party to the case, he being merely plaintiff’s counsel.
Is the counterclaim of DY compulsory or not? Should AC’s motion to dismiss the

counterclaim be granted or not? Reason. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
Yes. The counterclaim of DY is compulsory because it is one which arises out of or is connected
with the transaction or occurrence constituting the subject matter of the opposing party 's claim and
does not require for its adjudication the presence of third parties of whom the court cannot acquire
jurisdiction.(Sec. 7 of Rule 6).
The motion to dismiss of plaintiff’s counsel should not be granted because bringing in plaintiff’s
counsel as a defendant in the counterclaim is authorized by the Rules. Where it is required for the
grant of complete relief in the determination of the counterclaim, the court shall order the
defendant's counsel to be brought in since jurisdiction over him can be obtained. (Sec. 12 of
Rule 6; Aurelio v. Court of Appeals
196 SCRA 674 [1994]); and other cases). Here, the counterclaim was against both the plaintiff and
his lawyer who allegedly maliciously induced the plaintiff to file the suit.
ALTERNATIVE ANSWER:
The counterclaim should be dismissed because it is not a compulsory counterclaim. When a lawyer
files a case for a client, he should not be sued on a counterclaim in the very same case he has filed
as counsel. It should be filed in a separate and distinct civil action. (Chavez v. Sandiganhayan, 193
SCRA 282 [1991]).
Q: A resident of Lingayen, Pangasinan sued X. a resident of San Fernando. La Union in the

Regional Trial Court (RTC) of Quezon City for the collection of a debt of PI million.
X did not file a motion to dismiss for improper venue but filed his answer raising therein
improper venue as an affirmative defense. He also filed a counterclaim for P80.000 against A
for attorney’s fees and expenses for litigation. X moved for a preliminary hearing on said
affirmative defense. For his part, A filed a motion to dismiss the counterclaim for lack of
jurisdiction.
x x x
Rule on the motion to dismiss the counterclaim on the ground of lack of jurisdiction over the
subject matter. (12%)
SUGGESTEDANSWER:
xxx
The motion to dismiss on the ground of lack of jurisdiction over the subject matter should be
denied. The counterclaim for attorney's fees and expenses of litigation is a compulsory
counterclaim because it necessarily arose out of and is connected with the complaint. In an
original action before the Regional Trial Court, the counterclaim may be considered
compulsory regardless of the amount. (Sec. 7 of Rule 6, 1997 Rules of Civil Procedure.)
Permissive counterclaim
Defendant Dante said in his answer: "1. Plaintiff Perla claims that defendant Dante
owes her P4,000 on the mobile phone that she sold him; 2. But Perla owes Dante P6,000 for
the dent on his car that she borrowed." How should the court treat the second statement?
(2011 BAR)
(A) A cross claim
(B) A compulsory counterclaim
(C) A third party complaint
(D) A permissive counterclaim
1) A filed an action against B for recovery of possession of a piece of land. B in his answer
specifically denied A’s claim and interposed as counterclaim the amount of P150,000.00,
arising from another transaction, consisting of the price of the car he sold and delivered to A
and which the latter failed to pay.
Is B’s counterclaim allowed under the rules? Explain.
2) A sued B for damages. B in his answer alleged as new matter the issue of prescription. No
reply thereto was filed by A.
Can the action be dismissed for failure of A to controvert the new matter set up by B?
Explain.
3) X filed an action for damages against Y arising from the latter’s tortious act. Y filed his
answer with a counterclaim for damages suffered and expenses incurred on account of X’s
suit. Thereafter, X moved to dismiss the case since he lost interest in the case. Y did not
object. The court dismissed the action without prejudice. Y moved the court to set the
reception of his evidence to prove his counterclaim.
If you were the judge, how would you resolve the motion? Explain
Answer:
1) B’s counterclaim is a permissive counterclaim inasmuch as it arises out of another transaction

that is the subject-matter of A’s complaint. It is allowed if it is within the jurisdiction of the court.
(Sec. 8 of Rule 6)
Alternative Answer:
The question does not state to what court A filed the action. If the assessed value of the property
does not exceed P20.000.00, the action may be filed In a Municipal Trial Court, in which case the
counterclaim of P150,000.00 may not be allowed inasmuch as it is not within its jurisdiction.
If the assessed value does not exceed P50.000.00, the action may be filed in a Metropolitan Trial
Court, in which case the counterclaim of P150,000.00 may be allowed inasmuch as it is within its
jurisdiction. (Sec. 33 of BP 129 as amended by RA No. 7691)
If the assessed value exceeds P50.000.00, the action may be filed in a Regional Trial Court. If
filed in Metro Manila, the counterclaim of P150.000.00 may not be allowed, but if filed
outside Metro Manila, it may be allowed. (Sec. 19 of BP 129 as amended by RA 7691)
2. No, because if no reply is filed, all the new matters alleged in the answer are deemed
controverted. (Sec. 11 of Rule 6)
3. I would deny the motion. Inasmuch as Y's counterclaim for damages incurred on account of X’s
suit cannot remain pending for independent adjudication. Y should have objected to the dismissal
of the complaint. His failure to object deprived him of the right to present evidence to prove his
counterclaim. (Sec. 2 of Rule 17; Ynotorio vs. Lira, 12 SCRA 369)
Q: Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be reimbursed
of the value of improvements she had introduced on the same land and the payment of
damages she had sustained. Should Lea file a separate action against Aya for that purpose?
(1994 Bar Question)
Answer:
No. Lea’s claim cannot be made in a separate action. It is a compulsory counterclaim in the suit
filed by Aya against Lea for the recovery of the land. A compulsory counterclaim is one which
arises out of or is necessarily connected with the transaction or occurrence that is the subject-matter
of the opposing party’s claim and does not require the presence of third parties of whom the
court cannot acquire
jurisdiction. If Lea’s claim is not set up in the suit filed by Aya, the claim is barred. (Sec.
4, Rule 9; Baclayon v. Court of Appeals 182 SCRA 761 [1990]).
Alternative Answer:
If Aya’s action for recovery of land is one of forcible entry or unlawful detainer. Lea s claim
cannot be filed as a counterclaim but should be filed in a separate action.
d. Cross-claims
Q: (1999 Bar Question) A. x x x
B. Distinguish a counterclaim from a crossclaim. (2%) C. x x x
SUGGESTED ANSWER:
A. x x x
B. A counterclaim is distinguished from a crossclaim in that a cross-claim is any claim by one
party against a co-party arising out of the transaction or occurrence that is the
subject matter either of the original action or of a counterclaim therein. A counterclaim is
against an opposing party while a cross-claim is against a co-party. (Sec. 8, Rule 6 of the 1997
Rules)
C. x x x
Q: B and C borrowed P400.000.00 from A. The promissory note was executed by B and C in
a joint and several capacity. B, who received the money from A. gave C P200.000.00. C, in
turn, loaned P 100,000.00 out of the P200.000.00 he received to D.
A. In an action filed by A against B and C with the Regional Trial Court of Quezon
City, can B file a cross-claim against C for the amount of P200.000.00?
B. Can C file a third party complaint against D for the amount of P100.000.00? (1997 Bar
Question)
Answer:
A. Yes. B can file a cross-claim against C for the amount of 200,000.00 given to C. A cross-claim
is a claim filed by one party against a co-party arising out of the transaction or occurrence that is
the subject matter of the original action or a counterclaim therein and may include a claim that the
party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim
asserted against the cross-claimant. (Sec. 7 of former Rule 6; Sec. 8 of new Rule 6. Rules of Court).
B. No, C cannot file a third-party complaint against D because the loan of 100,000.00 has no
connection with his opponent’s claim. C could have loaned the money out of other funds in his
possession.
Alternative Answer:
(B) X Yes, C can file a third-party complaint against D because the loan of 100.000.00 was taken
out of the P200.000.00 received from B and hence the loan seeks contribution in respect to
his opponent's claim. (Sec. 12 of former Rule 6; Sec. 11 of new Rule 6)
1) A assembles an owner-type jeep for B who in turn rents it to X. Due to faulty brakes, X
figures in a vehicular accident causing him severe injuries. X files an action for damages
against A and B.
May B file a third-party complaint against A for indemnity? Explain.
2) X sued Y for breach of contract with damages. After Y filed his answer, the parties
amicably settled. The court rendered Judgment based on said compromise. Within the period
to perfect the appeal, Y filed a motion for new trial under Rule 37 alleging vitiation of his
consent due to mistake and prayed that the agreement be set aside.
Resolve the motion.
3) Plaintiff filed a complaint against defendant for recovery of possession of real property
with the Regional Trial Court of Manila. Defendant filed an answer with affirmative defenses
and interposed a counterclaim for damages and attorney’s fees arising from the filing of the
complaint. When plaintiff failed to file an answer on the counterclaim, defendant moved to
declare him in default. Notwithstanding notice of the motion, plaintiff did not file an
opposition.
As judge, how would you resolve the motion to declare plaintiff in default? Explain.
Answer:
1. No, because what B should file is a crossclaim against his co-defendant A.

2. A judgment by compromise is not appealable. Hence a motion for new trial is not proper. Y
should file a motion to set aside the agreement on the ground of mistake. (Reyes vs. Ugarte, 75
Phil.505) or he could file a petition for relief under Rule 38 of the Rules of Court or file a new
action to annul the agreement within the prescriptive period (Saminiada vs. Mata, 92 Phil. 426).
3. I would deny the motion. A compulsory counterclaim for damages and attorney’s fees arising
from the filing of the complaint raises issues which are inseparable from those of the complaint and
does not require an answer. (Navarro vs. Bello.
102 Phil. 1019)
e. Third (fourth, etc.) party complaints
Leave of court is always necessary in: (2012 BAR)

a. a demurrer to evidence in a civil case.
b. a demurrer to evidence in a criminal case. c. motion to amend a complaint.
d. third party complaint.
1. A filed an action against B for recovery of possession of a piece of land. B in his answer
specifically denied A’s claim and interposed as counterclaim the amount of P150,000.00,
arising from another transaction, consisting of the price of the car he sold and delivered to A
and which the latter failed to pay.
Is B’s counterclaim allowed under the rules? Explain.
2. A sued B for damages. B in his answer alleged as new matter the issue of prescription. No
reply thereto was filed by A.
Can the action be dismissed for failure of A to controvert the new matter set up by B?
Explain.
3. X filed an action for damages against Y arising from the latter’s tortious act. Y filed his
answer with a counterclaim for damages suffered and expenses incurred on account of X’s
suit. Thereafter, X moved to dismiss the case since he lost interest in the case. Y did not
object. The court dismissed the action without prejudice. Y moved the court to set the
reception of his evidence to prove his counterclaim.
If you were the judge, how would you resolve the motion? Explain. Answer:
1. B’s counterclaim is a permissive counterclaim inasmuch as it arises out of another transaction

that is the subject-matter of A’s complaint. It is allowed if it is within the jurisdiction of the court.
(Sec. 8 of Rule 6)
Alternative Answer:
The question does not state to what court A filed the action. If the assessed value of the property
does not exceed P20.000.00, the action may be filed In a Municipal Trial Court, in which case the
counterclaim of P150,000.00 may not be allowed inasmuch as it is not within its jurisdiction.
If the assessed value does not exceed P50.000.00, the action may be filed in a Metropolitan Trial
Court, in which case the counterclaim of P150,000.00 may be allowed inasmuch as it is within its
jurisdiction. (Sec. 33 of BP 129 as amended by RA No. 7691)
If the assessed value exceeds P50.000.00, the action may be filed in a Regional Trial Court. If
filed in Metro Manila, the counterclaim of P150.000.00 may not be allowed, but if filed
outside Metro Manila, it may be allowed. (Sec. 19 of BP 129 as amended by RA 7691)
2. No, because if no reply is filed, all the new matters alleged in the answer are deemed
controverted. (Sec. 11 of Rule 6)
3. I would deny the motion. Inasmuch as Y's counterclaim for damages incurred on account of X’s
suit cannot remain pending for independent adjudication. Y should have objected to the dismissal
of the complaint. His failure to object deprived him of the right to present evidence to prove his
counterclaim. (Sec. 2 of Rule 17; Ynotorio vs. Lira, 12
SCRA 369)
f. Complaint-in-intervention g. Reply
Q: X files a complaint in the Regional Trial Court for the recovery of a sum of money with
damages against Y.Y files his answer denying liability under the contract of sale and praying
for the dismissal of the complaint on the ground of lack of cause of action because the
contract of sale was superseded by a contract of lease, executed and signed by X and Y
two weeks after the contract of sale was executed. The contract of lease was attached to the
answer. X does not file a reply. What is the effect of the non-filing of a reply? Explain. (3%)
(2000 Bar Question)
SUGGESTED ANSWER:
A reply is generally optional. If it is not filed, the new matters alleged in the answer are deemed
controverted. (Sec. 10 of Rule 6. 1997 Rules of Civil Procedure). However, since the contract of
lease attached to the answer is the basis of the defense, by not filing a reply denying under oath the
genuineness and due execution of said contract, the plaintiff is deemed to have admitted the
genuineness and due execution thereof. (Secs. 7 and 8, Rule 8,1997 Rules of Civil Procedure;
Toribio u. Bidin, 134
SCRA 162 (1985]).
2. Pleadings allowed in small claim cases and cases covered by the Rules on
Summary Procedure
Which of the following precepts forms part of the rules governing small claims? (2011 BAR)
(A) Permissive counterclaim is not allowed.
(B) The court shall render its decision within 3 days after hearing. (C) Joinder of separate claims is
not allowed.
(D) Motion to declare defendant in default is allowed.
Q: As a new lawyer, Attorney Novato limited his practice to small claims cases, legal counseling
and the notarization of documents. He put up a solo practice law office and was assisted by his
wife who served as his secretary/helper. He used a makeshift hut in a vacant lot near the local
courts and a local transport regulatory agency. With this practice and location, he did not have
big-time clients but enjoyed heavy patronage assisting walk-in clients.
a) What role can Attorney Novato play in small claims cases when lawyers are not allowed to
appear as counsel in these cases? (2013 BAR)
A: Atty. Novato may only give counseling and assist claimants in accomplishing the Statement of
Claims and the Affidavits necessary to initiate a small claims action. He can also notarize the
aforementioned documents since the statement of Claims and Response are required to be verified
(Sec. 7, Rules of Procedure for Small Claims, A.M. No. 8-8-7 SC).
b) What legal remedy, if any, may Attorney Novato pursue for a client who loses in a small
claims case and before which tribunal or court may this be pursued? (2013 BAR)
A: Atty. Novato may file a Petition for Certiorari before the RTC since a decision in small claims
cases is final and unappealable (Sec. 23, A.M. No. 8-8-7 SC). The petition for certiorari should be
filed before the RTC conformably to the Principle of Judicial Hierarchy.
Q: SPO1 CNC filed with the Metropolitan Trial Court in Quezon City (MeTC-QC) a sworn
written statement duly subscribed by him, charging RGR (an actual resident of Cebu
City') with the offense of slight physical injuries allegedly inflicted on SPS (an actual
resident of Quezon City). The Judge of the branch to which the case was raffled thereupon
issued an order declaring that the case shall be governed by the Rule on Summary Procedure
in criminal cases. Soon thereafter, the Judge ordered the dismissal of the case for the reason
that it was not commenced by information, as required by said Rule.
Sometime later, based on the same facts giving rise to the slight physical injuries case, the
City Prosecutor filed with the same MeTC-QC an information for attempted homicide
against the same RGR. In due time, before arraignment, RGR moved to quash the
information on the ground of double jeopardy and after due hearing, the Judge granted his
motion.
Was the dismissal of the complaint for slight physical injuries proper? Was the grant of the
motion to quash the attempted homicide information correct? Reason (5%) (2004 Bar
Question)
SUGGESTEDANSWER:
Yes, the dismissal of the complaint for slight physical injuries is proper because in Metropolitan
Manila and in chartered cities, the case has to be commenced only by information. (Sec. 11,
Revised Rule on Summary Procedure).
No, the grant of the motion to quash the attempted homicide information on the ground of double
jeopardy was not correct, because there was no valid prosecution for slight physical injuries.
Q: Juan Santos appeals the decision against him to the Regional Trial Court (RTC) which
affirmed in toto the lower court’s decision. Juan Santos then filed a motion for
reconsideration. Maria Cruz moves to strike out the motion for reconsideration as it is a
prohibited pleading under the Rules on Summary Procedure.
Is this tenable? Decide with reasons. (1990 Bar Question) Answer:

No, because the rule on prohibited pleadings in summary procedure is applicable only to the
Metropolitan and Municipal Trial Courts (Glakihaca v. Aquino. Jan. 12.1990)
Q: Dalmacio filed a civil case against Cadio for the collection of P5,000 in the Municipal Trial
Court of Bacoor, After an examination of the complaint, the judge dismissed the case
outright due to improper venue. Dalmacio filed a “motion for reconsideration” of the order
of dismissal, contending that a provision in the promissory note attached to the complain and
made as the basis thereof clearly shows that the case must be filed with the Bacoor court.
Although realizing and admitting that he committed an error in dismissing the case, the
judge said that he could not revoke his previous order because no action can be taken on the
motion for reconsideration, which is a prohibited pleading under the Summary Rules. Is the
judge correct? Explain. (1989 Bar Question)
Answer:
No, because while a motion for reconsideration is not allowed under summary procedure rules in
order to avoid undue delay, a revocation of the erroneous order would avoid the delay occasioned
by an appeal by Dalmacio from the order of dismissal and a reversal of the said order by the
Regional Trial Court. (Cf. Heirs of Ricardo Olivas vs. Flory 161 SCRA 393)
Other acceptable Answers:
No, because the judge may correct his error under the inherent powers of the court to make the
order conform to law and justice.
Yes, because the Summary Procedure rules do not allow the filing of a motion for reconsideration.
The remedy of plaintiff is to appeal from the order.
3. Parts of a pleading a. Caption

b. Signature and address
c. Verification and certification against forum shopping
A certificate against Forum-Shopping is not required in: (2012 BAR)

a. petitions for probate of will.
b. application for search warrant. c. complaint-in-intervention.
d. petition for Writ of Kalikasan.
When a party or counsel willfully or deliberately commits forum shopping, the initiatory
pleading may: (2012 BAR)
a. be cured by amendment of the complaint.
b. upon motion, be dismissed with prejudice.
c. be summarily dismissed with prejudice as it may constitute direct contempt. d. be stricken from
the record.
Q: What is forum shopping? 2.5% (2007 Bar Question) SUGGESTED ANSWER:
Forum -shopping is the act of filing multiple suits involving the same parties for the same cause of
action, either simultaneously or successively, for the purpose of obtaining a favorable
judgment (Executive Secretary v. Gordon, 298 SCRA 735 (19981).
Q: Mr. Humpty file with the Regional Trial Court (RTC) a complaint against Ms. Dumpty
for damages. The RTC, after due proceedings, rendered a decision granting the complaint
and ordering Ms. Dumpty to pay damages to Mr. Humpty. Ms. Dumpty timely filed an
appeal before the Court of Appeals (CA), questioning the RTC decision. Meanwhile, the RTC
granted Mr. Humpty’s motion for execution pending appeal. Upon receipt of the RTC’s
order granting execution pending appeal, Ms. Dumpty filed with the CA another case, this
time a special civil action for certiorari assailing said RTC order. Is there a violation of the
rule against forum shopping considering that two (2) actions emanating from the same case
with the RTC were filed by Ms. Dumpty with the CA? Explain. (2014)
A: NO. There is no violation of the rule against forum shopping. The essence of forum shopping is
the filing by a party against whom an adverse judgment has been rendered
in one forum, seeking another and possibly favorable opinion in another suit other than by appeal
or special civil action for certiorari; the act of filing of multiple suits involving the same parties for
the same cause of action, either simultaneously or successively for the purpose of obtaining a
favorable judgment. Forum shopping exists where the elements of litis pendentia are present or
where a final judgment in one case will amount to res judicata in the action under consideration
(Roberto S. Benedicto v. Manuel Lacson, G.R. No. 141508, May 5, 2010). In Philippines Nails and
Wires Corporation v. Malayan Insurance Company, Inc., G.R. No. 143933, February 14, 2003, the
Supreme Court held that one party may validly question a decision in a regular appeal and at the
same time assail the execution pending appeal via certiorari without violating the rule against
forum shopping. This is because the merits of the case will not be addressed in the Petition dealing
with the execution and vice versa. Since Ms. Dumpty merely filed a special civil action for
certiorari, the same will not constitute a violation of the rules on forum shopping because the
resolution or a favorable judgment thereon will not amount to res judicata in the subsequent
proceedings between the same parties. (Roberto S. Benedicto v. Manuel Lacson, G.R. No. 141508,
May 5, 2010).
A complaint without the required "verification" (2011 BAR)

(A) shall be treated as unsigned.
(B) lacks a jurisdictional requirement. (C) is a sham pleading.
(D) is considered not filed and should be expunged.
xxxxxx
The verification and certification of non-forum shopping are fatally defective because
there is no accompanying certification issued by the
Philippine Consulate in New York, authenticating that^Mr. Brown is duly authorized to
notarize the document. (3%) Rule on the foregoing grounds
with reasons.(2009 Bar Question)
SUGGESTEDANSWER:
The third ground raised questioning the validity of the verification and certification of non-forum
shopping for lack of certification from the Philippine Consulate in New York, authenticating that
Mr. Brown is duly authorized to notarize the document, is likewise without merit. The required
certification alluded to, pertains to official acts, or
records of official bodies, tribunals, and public officers, whether of the Philippines or of a foreign
country: the requirement in Sec. 24, Rule 132 of the 1997 Rules refers only to paragraph (a) of Sec.
29 which does not cover notarial documents. It is enough that the notary public who notarized the
verification and certification of non-forum shopping is clothed with authority to administer oath in
that State or foreign country.
Q: What is forum-shopping? What are the sanctions imposed for its violation? (1996 Bar
Question)
Answer:
Forum-shopping is the filing of multiple petitions, complaints or other initiatory pleadings

involving the same issues in the Supreme Court, the Court of Appeals or other tribunals or
agencies, with the result that said courts, tribunals or agencies have to resolve the same issues.
Any violation thereof shall be a cause for the dismissal of the complaint, petition, application or
other initiatory pleading, upon motion and after hearing. However, any clearly, wilful and
deliberate forum shopping by any party and his counsel through the filing of multiple complaints or
other initiatory pleadings to obtain favorable action shall be a ground for summary dismissal
thereof and shall constitute direct contempt of court. Furthermore, the submission of false
certification or non-compliance with the undertakings therein shall constitute indirect contempt of
court, without prejudice to disciplinary proceedings against the counsel and the filing of a criminal
action against the guilty party. (Circular Nos. 28-91 and 04-94)
Q: RC filed a complaint for annulment of the foreclosure sale against Bank V. In its answer,
Bank V set up a counterclaim for actual damages and litigation expenses. RC filed a motion
to dismiss the counterclaim on the ground that Bank V’s Answer with Counterclaim was not
accompanied by a certification against forum shopping. Rule. (5%) (2007 Bar Question)
SUGGESTED ANSWER:
A certification against forum shopping is required only in initiatory pleadings. In this case, the
counterclaim pleaded in the defendant’s Answer appears to have arisen from the plaintiff's
complaint or compulsory in nature and thus, may not be regarded as an initiatory pleading. The
absence thereof in the Bank’s Answer is not a fatal defect. Therefore, the motion to dismiss on the
ground raised, lacks merit and should be denied (UST v. Surla, 294 SCRA 382 [1998]).
On the other hand, if the counterclaim raised by the defendant Bank’s Answer was not predicated
on the plaintiffs claim or cause of action, it is considered a permissive counterclaim. In which case,
it would partake of an initiatory pleading which requires a certification against forum shopping.
Correspondingly, the motion to dismiss based on lack of the required certificate against forum
shopping should be granted.
Q: Honey filed with the Regional Trial Court, Taal, Batangas a complaint for specific
performance against Bemie. Forlack of a certification against forum shopping, the judge
dismissed the complaint. Honey's lawyer filed a motion for reconsideration, attaching thereto
an amended complaint with the certification against forum shopping. If you were the judge,
how will you resolve the motion?
5%
SUGGESTED ANSWER:
If I were the judge, I will deny the Motion for Reconsideration. The requirement of filing a
certificate of non-forum shopping is mandatory; it is not curable by mere amendment of the
complaint but the dismissal of the case shall be without prejudice. [Sec. 5, Rule 7 of the 1997
Revised Rules of Civil Procedure]. However, The rule may be liberally construed when there are
compelling reasons and a strict and literal application of the rules on non-forum shopping and
verification will result in a patent denial of substantial justice (Valte v. Court of Appeals, 433
SCRA 185 [2004]; Wack Wack Golf &. Country Club v. National Labor Relations Commission,
456 SCRA 280 [2005]).
Q: As counsel for A, B, C and D. Atty. XY prepared a complaint for recovery of possession of

a parcel of land against Z. Before filing the complaint, XY discovered that his clients were not
available to sign the certification of non- forum shopping. To avoid further delays in the filing
of the complaint, XY signed the certification and immediately filed the complaint in court. Is
XY Justified in signing the certification? Why? (5%) (2000 Bar Question)
SUGGESTED ANSWER:
No. counsel cannot sign the anti-forum shopping certification because it must be executed by the
“plaintiff or principal party" himself (Sec. 5. Rule 7, 1997 Rules of Civil Procedure; Escorpizo v.
University of Baguio, 306 SCRA 497. (1999]). since the rule requires personal knowledge by the
party executing the certification, unless counsel gives a good reason why he is not able to secure
his clients’ signatures and shows that his clients will be deprived of substantial Justice {Ortiz v.
Court of Appeals, 299 SCRA
708,11998]) or unless he is authorized to sign It by his clients through a special power
of attorney.
d. Effect of the signature of counsel in a pleading
A. x x x
B. x x x
C. What is the significance of a lawyer’s signature in the pleadings?
Answer:
A. x x x
B. x x x
C. The signature of a lawyer constitutes a certification by him that he has read the pleading; that to
the best of his knowledge, information and belief there is good ground to support it; and that it is
not interposed for delay. (Sec. 5 of Rule 7)
The signature of counsel in the pleading constitutes a certification that .

(2013 BAR)
(A) both client and counsel have read the pleading, that to the best of their knowledge, information
and belief there are good grounds to support it, and that it is not interposed for delay
(B) the client has read the pleading, that to the best of the client’s knowledge, information and
belief, there are good grounds to support it, and that it is not
interposed for delay
(C) the counsel has read the pleading, that to the best of the client’s knowledge, information and
belief, there are good grounds to support it, and that it is not interposed for delay
(D) the counsel has read the pleading, that based on his personal information, there are good
grounds to support it, and that it is not interposed for delay
(E) The above choices are not totally accurate.
4. Allegations in a pleading
a. Manner of making allegations i. Condition precedent
ii. Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments,
official documents or acts
1. The complaint alleged that the defendant acted in bad faith, arbitrarily, illegally,
wrongfully, and in violation of law. However, it did not contain any averment of facts
showing that defendant's acts were done in the manner alleged.
Does the complaint state a cause of action? Explain.
2. X brought an action against Y for the annulment of the sale of certain shares of stock.
After the case was decided in favor of X, he filed another action for the recovery of the
dividends that had already accrued when the first action was filed.
Is the second action for the recovery of the dividends proper? Answer:
1. No, because it does not state the ultimate facts constituting the plaintiffs cause of action. The
allegations that the defendant acted in bad faith, arbitrarily, illegally,
wrongfully and in violation of the law are mere conclusions of fact or conclusions of law.
(Remitere vs. Vda. De Yulo, 16 SCRA 251)
Alternative Answer:
Yes, if the complaint alleges ultimate facts and states that the acts were done in bad faith,
arbitrarily, illegally, wrongfully and in violation of the law. The rule allows malice, intent,
knowledge or other condition of the mind to be averred generally. (Sec. 5 of Rule 8)
2. No, because the recovery of the dividends is part of the cause of action for the annulment of the
sale of certain shares of stock and should have been claimed in the first action. The second action
constituted splitting a single cause of action.
b. Pleading an actionable document
amounting to P167,899. He attached to the complaint the Bill of Lading.
A. x x x
B. The MeTC denied the Motion in question A. B Lines thus filed an Answer raising the
defense that under the Bill of Lading it issued to A, its liability was limited to Pl0, 000. At the
pre-trial conference, B Lines defined as one of the issues whether the stipulation limiting its
liability to Pl0, 000 binds A. A countered that this was no longer in issue 1l.S B Lines had
jailed to deny under oath the Bill of Lading. Which of the parties is correct? Explain. (3%)
(2010 Bar Question)
SUGGESTED ANSWER:
The Contention of B is correct: A’s contention is wrong. It was A who pleaded the Bill of Lading
as an actionable document where the stipulation limits B's liability to A to P10, 000.00 only. The
issue raised by B does not go against or impugn the genuineness and due execution of the
Bill of Lading as an actionable document pleaded by A, but invokes the binding effect of said
stipulation. The oath is not required of B, because the issue raised by the latter does not impugn the
genuineness and due execution of the Bill of Lading.
Q: Modesto sued Ernesto for a sum of money, claiming that the latter owed him PI-million,
evidenced by a promissory note, quoted and attached to the complaint. In his answer with
counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory note,
but that it is Modesto who really owes him PI.5-
million. Modesto filed an answer to Ernesto’s counterclaim admitting that he owed Ernesto,
but only in the amount of PO.5-million. At the pretrial, Modesto marked and identified
Ernesto’s promissory note. He also marked and identified receipts covering payments he
made to Ernesto, to the extent of PO.5-million, which Ernesto did not dispute. After pre-
trial, Modesto filed a motion for judgment on the pleadings, while Ernesto filed a motion
for summary judgment on his counterclaim. Resolve the two motions with reasons. (5%)
(2009 Bar Question)
SUGGESTED ANSWER:
Modesto’s motion for judgment on the pleadings should be denied. While it is true that under the
actionable document rule, Ernesto’s failure to deny under oath the promissory note in his answer
amounted to an implied admission of its genuineness and due execution, his allegation in his
answer that he was coerced into signing the promissory note tendered an issue which should be
tried. The issue of coercion is not inconsistent with the due execution and genuineness of the
instrument. Thus, Ernesto’s failure to deny the genuineness of the promissory note cannot be
considered a waiver to raise the issue that he was coerced in signing the same. Said claim of
coercion may also be proved as an exception to the Parol Evidence Rule.
On the other hand, Ernesto’s motion for summary judgment may be granted. Modesto’s answer to
Ernesto’s counterclaim — that he owed the latter a sum less than what was claimed — amounted to
an admission of a material fact and if the amount thereof could summarily be proved by affidavits,
deposition, etc., without the need of going to trial, then no genuine issue of fact exists.
ALTERNATIVE ANSWER:
Modesto’s motion for judgment on the pleadings should be denied because there is an issue of fact.
While Ernesto did not specifically deny under oath the promissory note attached to
Modesto’s complaint as an actionable document, such non-denial will not bar Ernesto’s evidence
that Modesto coerced him into signing the promissory note. Lack of consideration, as a defense,
does not relate to the genuineness and due execution of the promissory note.
Likewise, Ernesto’s motion for summary judgment should be denied because there is an issue of
fact — the alleged coercion — raise cf by Ernesto which he has yet to prove in a trial on its merits.
It is axiomatic that summary judgment is not proper or valid when there is an issue of fact
remaining which requires a hearing. And this is so with respect to the coercion alleged by Ernesto
as his defense, since coercion is not capable of being established by documentary evidence.
Q: In his answer to the complaint, Mario Reyes alleged that he does not owe Norma Alajar
any sum of money, and that he executed the promissory note only to enable Alajar to show
the same to her husband to explain the disappearance of the amount from the conjugal funds
as Norma Alajar lost the same in the casino. The answer is not verified. At the trial, the
lawyer of Norma Alajar objected to the testimony of Mario Reyes, as to his accommodation
story because, as the answer is not verified, he is deemed to have admitted the genuineness
and due execution of the promissory note.
Decide on the objection with reasons. (1990 Bar Question) Answer:

Objection overruled. A verified answer is necessary in denying the genuineness and due execution
of the promissory note on which the action is based. However, the defense of Mario Reyes does not
dispute the genuineness or due execution of the promissory note. His defense of want of
consideration, that he executed the promissory note only to enable Alajar to explain the loss of
conjugal funds does not require a verified answer. (Sec. 8 of Rule 8)
c. Specific denials (Effect of failure to make specific denials, When a specific denial requires
an oath)
Plaintiff Manny said in his complaint: "3. On March 1, 2001 defendant Letty borrowed P1
million from plaintiff Manny and made a promise to pay the loan within six months." In her
answer, Letty alleged: "Defendant Letty specifically denies the allegations in paragraph 3 of
the complaint that she borrowed P1 million from plaintiff Manny on March 1, 2001 and
made a promise to pay the loan within six months." Is Letty’s denial sufficient? (2011 BAR)
(A) Yes, since it constitutes specific denial of the loan.
(B) Yes, since it constitutes positive denial of the existence of the loan.
(C) No, since it fails to set forth the matters defendant relied upon in support of her denial.
(D) No, since she fails to set out in par. 2 of her answer her special and
affirmative defenses.
Q: In a complaint for recovery of real property, the plaintiff averred, among others,
that he is the owner of the said property by virtue of a deed of sale executed by the defendant
in his favor. Copy of the deed of sale was appended to the complaint as Annex “A" thereof.
In his unverified answer, the defendant denied the ^legation concerning the sale of the
property In question, as Well as the appended deed of sale, for lack of knowledge or
information sufficient to form a belief as to the truth thereof.
Is it proper for the court to render judgment without trial? Explain. (4%)(2005 Bar
Question)
SUGGESTED ANSWER:
Defendant cannot deny the sale of the property for lack of knowledge or information sufficient to
form a belief as to the truth thereof. The answer, being defective, amounts to an admission.
(Phil. Advertising Counselors, Inc. v. Revilla, 52
SCRA 246 [19731; Sec. 10, Rule 8,1997 Rules of Civil Procedure). Moreover, the genuineness
and due execution of the deed of sale can only be denied by the defendant under oath and
failure to do so is also an admission of the deed. (Sec. 8,
1997 Rules of Civil Procedure). Hence, a judgment on the pleadings can be rendered by the court
without need of a trial. (Gutierrez v. Court of Appeals, 74 SCRA 127
[1976]).
Q: In his complaint for foreclosure of mortgage to which was duly attached a copy of the
mortgage deed,, plain tiff PP alleged inter alia as follows: (1) that defendant DD duly executed
the mortgage deed, copy of which is Annex “A" of the complaint and made an integral part
thereof; and (2) that to prosecute his complaint, plaintiff contracted a lawyer, CC, for a fee of
P50.000. In his answer, defendant alleged, inter alia, that he had no knowledge of the
mortgage deed, and he also denied any liability for plaintiffs contracting with a lawyer for a
fee.
Does defendant’s answer as to plaintiff’s allegation no. 1 as well as no. 2 sufficiently raise an
issue of fact? Reason briefly. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
As to plaintiffs allegation no. 1. defendant does not sufficiently raise an issue of fact, because he
cannot allege lack of knowledge of the mortgage deed since he should have personal knowledge as
to whether he signed it or not and because he did not deny under oath the genuineness and due
execution of the mortgage deed, which is an actionable document. As to plaintiff’s allegation no. 2,
defendant did not properly deny liability as to plaintiffs contracting with a lawyer for a fee. He did
not even deny for lack of knowledge. (Sec. 10 of Rule 8).
Q: X sued Y, a shipping co., based on a contract of carriage contained in a bill of lading. The
bill of lading, an actionable document, was pleaded and attached to the complaint. Y, without
alleging anything else, merely assailed the validity of the agreement in the bill of lading for
being contrary to public policy. After presenting evidence, X did not formally offer for
admission the bill of lading. The court ruled for X. On motion for reconsideration. Y alleged
that X failed to prove his action as the bill of lading was not formally offered.
Decide. (1996 Bar Question) Answer:

Motion for reconsideration is denied. There was no need to formally offer for admission the bill
of lading, because the failure of Y to deny under oath the genuineness and due execution of
the bill of lading which was an actionable document constituted an admission thereof. (Sec. 8 of
Rule 8)
Q: In an action for recovery of a sum of money, the plaintiff averred in the complaint
that “on January 15, 1990, the defendant obtained a loan from the plaintiff in the sum of
P100,000.00 which he promised to pay to the latter on or before July 15,1990 plus interest
thereon at the rate of 18% per annum from January 15,1990 until fully paid" and that “the
aforesaid loan has long been overdue but despite repeated demands, the defendant failed and
refused, and still fails and refuses to pay to the plaintiff the aforesaid sum of P100,000.00 and
the accrued interest."
Answering the complaint, the defendant denied the aforequoted averments and gave the
reason for the denial his lack of knowledge or information sufficient to form a belief as to the
truth of said averments.
What is the effect of such denial? With such form of denial, what course of action may be
availed of by the plaintiff? Explain. (1993 Bar Question)
Answer:
The denial of the averments of the complaint claiming lack of knowledge or information sufficient
to form a belief as to the truth of said averments is not a sufficient specific denial. The allegation in
the complaint, that the defendant obtained a loan from the plaintiff and failed and refused to pay
the same, is so plainly and necessarily within the defendant’s knowledge that his claim of
ignorance must be palpably not true. [Warner Barnes vs. Reyes. 103 Phil. 602)
Since the answer tenders no issue or otherwise admits the material allegations of the complaint, the
plaintiff may properly file a motion for Judgment on the pleadings. (Rule 19: Manufacturers Bank
& Trust Co. vs. Diversified Industries. Inc.. 173 SCRA
357)
5. Effect of failure to plead

a. Failure to plead defenses and objections
a) X files a complaint in the Regional Trial Court for the recovery of a sum of money with
damages against Y.Y files his answer denying liability under the contract of sale and praying
for the dismissal of the complaint on the ground of lack of cause of action because the
contract of sale was superseded by a contract of lease, executed and signed by X and Y
two weeks after the contract of
sale was executed. The contract of lease was attached to the answer. X does not file a reply.
What is the effect of the non-filing of a reply? Explain. (3%)
SUGGESTED ANSWER:
a) A reply is generally optional. If it is not filed, the new matters alleged in the answer are deemed
controverted. (Sec. 10 of Rule 6. 1997 Rules of Civil Procedure). However, since the contract of
lease attached to the answer is the basis of the defense, by not filing a reply denying under oath the
genuineness and due execution of said contract, the plaintiff is deemed to have admitted the
genuineness and due execution thereof. (Secs. 7 and 8, Rule 8,1997 Rules of Civil Procedure;
Toribio u. Bidin, 134 SCRA 162 (1985]).
b. Failure to plead a compulsory counterclaim and cross-claim

Q: (2000 Bar Question) A. x x x
B. For failure of KJ to file an answer within the reglementary period, the Court, upon motion
of LM, declared KJ in default. In due time, KJ filed an unverified motion to lift the order of
default without an affidavit of merit attached to it. KJ however attached to the motion his
answer under oath, stating in said answer his reasons for his failure to file an answer on time,
as well as his defenses. Will the motion to lift the order of default prosper? Explain. (3%)
SUGGESTED ANSWER:
A. x x x
B. Yes, there is substantial compliance with the rule. Although the motion is unverified, the answer
attached to the motion is verified. The answer contains what the motion to lift the order of default
and the affidavit Of merit should contain, which are the reasons for movant's failure to answer as
well as his defenses. (Sec. 3 (bj of Rule 9, 1997 Rules of Civil Procedure; Cf. Citibank, N.A. v.
Court of Appeals, 304 SCRA 679, [19991; Consul v. Consul. 17 SCRA 667, 671 (19661; Tolentino
v. Carlos, 66 Phil. 140, 143-144 (19381, Nasser v. Court of Appeals, 191 SCRA 783 (19921).
6. Default
a. When a declaration of default is proper
A judgment by default can be issued despite an Answer being filed in: (2012 BAR)
a. annulment of marriage. b. legal separation.
c. cases where a party willfully fails to appear before the officer who is to take
his deposition.
d. declaration of nullity of marriage.
Q: Circe filed with the RTC a complaint for the foreclosure of real estate mortgage against
siblings Scylla and Charybdis, co-owners of the property and co- signatories to the mortgage
deed. The siblings permanently reside in Athens, Greece. Circe tipped off Sheriff Pluto that
Scylla is on a balikbayan trip and is billeted at the Century Plaza Hotel in Pasay City. Sheriff
Pluto went to the hotel and personally served Scylla the summons, but the latter refused
to receive summons for Charybdis as she was not authorized to do so. Sheriff Pluto
requested Scylla for the email address and fax number of Charybdis which the latter readily
gave. Sheriff Pluto, in his return of the summons, stated that "Summons for Scylla was
served personally as shown by her signature on the receiving copy of the summons. Summons
on Charybdis was served pursuant to the amendment of Rule 14 by facsimile transmittal of
the summons and complaint on defendant's fax number as evidenced by transmission
verification report automatically generated by the fax machine indicating that it was received
by the fax number to which it was sent on the date and time indicated therein." Circe, sixty
(60) days after her receipt of Sheriff Pluto's return, filed a Motion to Declare Charybdis in
default as Charybdis did not file any responsive pleading. (2015)
a. Should the court declare Charybdis in default?
A: NO, the court should not declare Charybdis in default because there was no proper service of
summons. Section 12, Rule 14 of the Rules of Court applies only to a foreign private juridical
entity that is not registered in the Philippines and has no resident agent in the country, and not to
individuals (A.M. No. 11-3-6-SC, March 15, 2011). The service of summons by facsimile under
said rule is, therefore, defective.
A foreclosure of real estate mortgage is a quasi in rem action, thus, the court can render judgments
as long as it has jurisdiction over the res and any of the modes of extraterritorial service of
summons under Section 15 of Rule 14 is complied with prior leave of court. There is,
unfortunately, no showing in the problem that a prior leave of court was obtained before resorting
to extra-territorial service of summons; hence, the service of summons is defective.
Q: Scylla seasonably filed her answer setting forth therein as a defense that Charybdis had
paid the mortgage debt. On the premise that Charybdis was properly declared in default,
what is the effect of Scylla's answer to the complaint?
A: Assuming that Charybdis was properly declared in default, the court shall try the case against all
the defendants upon the answer filed by Scylla, and render judgment upon the evidence presented
(Sec. 3[c], Rule 9).
In a complaint filed by the plaintiff, what is the effect of the defendant’s failure to file an
answer within the reglementary period? (2013 BAR)
(A) The court is allowed to render judgment motu proprio in favor of the plaintiff.
(B) The court motu proprio may declare the defendant in default, but only after due notice to the
defendant.
(C) The court may declare the defendant in default but only upon motion of the plaintiff and with
notice to the defendant.
(D) The court may declare the defendant in default but only upon motion of the plaintiff,
with notice to the defendant, and upon presentation of proof of
the defendant’s failure to answer.
(E) The above choices are all inaccurate.
Gerry sued XYZ Bus Co. and Rico, its bus driver, for injuries Gerry suffered when their bus
ran off the road and hit him. Of the two defendants, only XYZ Bus Co. filed an answer,
alleging that its bus ran off the road because one of its wheels got caught in an open manhole,
causing the bus to swerve without the driver’s fault. Someone had stolen the manhole cover
and the road gave no warning of the danger it posed. On Gerry’s motion and over the
objection of XYZ Bus Co., the court declared Rico, the bus driver, in default and
rendered judgment ordering him to pay P50,000 in damages to Gerry. Did the court act
correctly? (2011 BAR)
(A) No, since the court should have tried the case against both defendants upon the bus company’s
answer.
(B) No, the court should have dropped Rico as defendant since the moneyed defendant is the bus
company.
(C) Yes, the court can, under the rules, render judgment against the defendant declared in default.
(D) Yes, since, in failing to answer, Rico may be deemed to have admitted the allegations in the
complaint.
a. When may a party be declared in default? (2%) SUGGESTED ANSWER:

a. A party may be declared in default when he fails to answer within the time allowed therefor, and
upon motion of the claiming party with notice to the defending party, and proof of such failure.
(Sec. 3, Rule 9 of the 1997 Rules)
Q: May a party who is present at the pre-trial of a civil case and assisted by counsel still be
declared non-suited or as in default? Explain. (1989 Bar Question)
Answer:
No, because the only ground to declare a party non-suited or considered as in default at the pre-trial
is failure to appear thereat.
Other Acceptable Answers

1. A party who refuses to obey an order of the court under the rules on depositions and discovery
may be declared non-suited or as in default. (Sec. 3(c) of Rule 29)
2. A plaintiff who fails to prosecute may be declared non-suited or as in default. (Sec. 3
of Rule 17)
3. Under Circular 1-89 on mandatory continuous trial, failure to file a pre-trial brief is a ground to
be declared non-suited or as in default.
Tina Guerrero filed with the Regional Trial Court of Biñan, Laguna, a complaint for sum of
money amounting to PI Million against Carlos Corro. The complaint alleges, among
others, t1 at Carlos borrowed from Tina the said amount evidenced by a promissory
note signed by Carlos and his wife, jointly and severally. Carlos was served with summons
which was received by Linda, his secretary. However, Carlos failed to file an answer to the
complaint within the 15- day reglamentary period. Hence, Tina filed with the court a motion
to declare Carlos in default and to allow her to present evidence ex parte. Five days
thereafter, Carlos filed his verified answer to the complaint, denying under oath the
genuineness and due execution of the promissory note; and contending that he has fully paid
his loan with interest at 12% per annum. (2006 Bar Question)
A. x x x
B. If you were the judge, will you grant Tina’s motion to declare Carlos in default?
2.5% SUGGESTED ANSWER:
No, I will not grant Tina’s motion to declare Carlos in default. Considering that there was no
proper service of summons, the reglementary period to file a responsive pleading was not tolled.
Carlos was not duty bound to submit an Answer. Moreover, Carlos submitted a verified answer. It
is better to decide a case on the merits than on sheer technicality.
The plaintiff sued the defendant in the RTC for damages allegedly caused by the latter’s
encroachment on the plaintiff's lot. In his answer, the defendant denied the plaintiff’s claim
and alleged that it was the plaintiff who in fact had encroached on his (defendant’s)
land. Accordingly, the defendant counterclaimed against the plaintiff for damages resulting
from the alleged encroachment on his lot. The plaintiff filed an ex parte motion for extension
of time to answer the defendant's counterclaim, but the court denied the motion on the
ground that it should have been set for hearing. On the defendant’s motion, therefore, the
court declared the plaintiff in default on the counterclaim. Was the plaintiff validly
declared in default? Why? (5%)
x x x
SUGGESTED ANSWER:
No, the plaintiff was not validly declared in default. A motion for extension of time to file an
answer may be filed ex parte and need not be set for hearing. [Amante vs. Sunga,
64 SCRA 192 (1975)].
ALTERNATIVE ANSWER:
The general rule is that a counterclaim must be answered within ten (10) days from service. (Rule
11, sec. 4). However, a counterclaim that raises issues which are deemed automatically
joined by the allegations of the Complaint need not be answered [Gojo v. Goyaia, 35 SCRA 557
(1970)].
In this case, the defendant’s counterclaim is a compulsory counterclaim which arises out or is
connected with the transaction and occurrence constituting the subject matter of the plaintiff’s
claim. It raises the same issue of who encroached on whose land. Hence, there was no need to
answer the counterclaim.
Q: Tina Guerrero filed with the Regional Trial Court of Biñan, Laguna, a complaint for sum
of money amounting to PI Million against Carlos Corro. The complaint alleges, among
note signed by Carlos and his wife, jointly and
severally. Carlos was served with summons which was received by Linda, his secretary.
However, Carlos failed to file an answer to the complaint within the 15-
day reglamentary period. Hence, Tina filed with the court a motion to declare
Carlos in default and to allow her to present evidence ex parte. Five days thereafter, Carlos
filed his verified answer to the complaint, denying under oath the genuineness and due
execution of the promissory note; and contending that he has fully paid his loan with interest
at 12% per annum. (2006 Bar Question)
xxx
If you were the judge, will you grant Tina’s motion to declare Carlos in default? 2.5%
SUGGESTED ANSWER:
xxx
No, I will not grant Tina’s motion to declare Carlos in default. Considering that there was no
proper service of summons, the reglementary period to file a responsive pleading was not tolled.
Carlos was not duty bound to submit an Answer. Moreover, Carlos submitted a verified answer. It
is better to decide a case on the merits than on sheer technicality.
b. Effect of an order of default, Effect of a partial default
Being declared in default does not constitute a waiver of all rights. However, the following
right is considered waived: (2012 BAR)
a. be cited and called to testify as a witness b. file a motion for new trial
c. participate in deposition taking of witnesses of adverse party d. file a petition for certiorari
xxx
What is the effect of an Order of Default? (2%)
xxx
SUGGESTED ANSWER:
The effect of an Order of Default is that the court may proceed to render judgment
granting the claimant such relief as his pleading may warrant unless the court in its discretion
requires the claimant to submit evidence (Id.) The party in default cannot take part in the trial but
shall be entitled to notice of subsequent proceedings. (Sec. 3[A]. Rule 9 of the 1997 Rules)
c. Relief from an order of default, Extent of relief
A defendant declared in default may, after judgment but before finality, file a: (2012 BAR)
a. Petition for Relief from Judgment;
b. Petition for Certiorari;
c. Motion for Reconsideration;
d. Motion to Set Aside Order of Default.
a) x x x b) x x x
c) For failure to seasonably file his Answer despite due notice, A was declared in default in a
case instituted against him by B. The following day, A’s mistress who
is working as a clerk in the sala of the Judge before whom his case is pending, informed him
of the declaration of default. On the same day, A presented a
motion under oath to set aside the order of default on the ground that his failure to answer
was due to fraud and he has a meritorious defense. Thereafter, he went
abroad. After his return a week later, with the case still undecided, he received the order
declaring him in default. The motion to set aside default was opposed
by B on the ground that it was filed before A received notice of his having been
declared in default, citing the rule that the motion to set aside may be made at anytime after
notice but before judgment. Resolve the Motion. (2%)
SUGGESTED ANSWER:
a) x x x b) x x x
c) Assuming that the motion to set aside complies with the other requirements of the
rule, it should be granted although such a motion may be made after notice but before judgment
(Sec. 3[B] of Rule 9), with more reason may it be filed after discovery even before receipt of the
order of default.
Q: What are the available remedies of a party declared in default:
A. Before the rendition of Judgment; (1%]

B. After judgment but before its finality; and |2%)
C. After finality of judgment? [2%] (1998 Bar Question) SUGGESTED ANSWER:
The available remedies of a party declared in default are as follows:
A. Before the rendition of judgment (a) he may file a motion under oath to set aside the order of
default on the grounds of fraud, accident, mistake or excusable negligence and that he has a
meritorious defense (Sec. 3[b), Rule 9, 1997 Rules of Civil Procedure); and if it is denied, he may
move to reconsider, and if reconsideration is denied, he may file the special civil action of
certiorari for grave abuse of discretion tantamount to lack or excess of the lower court's
jurisdiction. (Sec. 1, Rule 65, Rules of Court) or (b) he may file a petition for certiorari If he has
been illegally declared in default, e.g. during the pendency of his motion to dismiss or before the
expiration of the time to answer. (Matute us. Court of Appeals, 26 SCRA768; Acosta-Ofalia vs.
Sundiam, 85 SCRA 412.)
B. After judgment but before its finality, he may file a motion for new trial on the grounds of fraud,
accident, mistake, excusable negligence, or a motion for reconsideration on the ground of excessive
damages, insufficient evidence or the decision or final order being contrary to law (See. 2, Rule 37,
1997 Rules of Civil Procedure); and thereafter. If the motion is denied, appeal la available under
Rules 40 or 41, whichever is applicable.
C. After finality of the Judgment, there are three ways to assail the Judgment, which are: (a) a
petition for relief under Rule 38 on the grounds of fraud, accident, mistake or excusable
negligence; (b) annulment of Judgment under Rule 47 for extrinsic fraud or lack of Jurisdiction; or
(c) certiorari if the Judgment Is void on Its face or by the judicial record. (Balangcad us. Justices qf
the Court of Appeals, G.R. No. 83888, February 12,
1992, 206 SCRA 171 and other cases).
Q: Jojie filed with the Regional Trial Court of Laguna a complaint for damages against Joe.
During the pre-trial, Jojie and her counsel (sic) failed to appear despite notice to both of
them. Upon oral motion of Jojie, Joe was declared as in default and Jojie was allowed to
present her evidence ex parte. Thereafter, the court rendered its Decision in favor of Jojie.
Joe hired Jose as his counsel. What are the remedies available to him? Explain.
5% (2006 Bar Question)
SUGGESTED ANSWER:
Under the present rule, there can be no judgment by default by mere failure of the defendant to
appear in the pre-trial. The only consequence of such failure to appear is that the plaintiff can
present his evidence ex parte and the court may render judgment on the basis thereof (Sec. 5, Rule
18 of the 1997 Revised Rules of Civil Procedure). The following are the remedies available to Joe:
1. motion for reconsideration;

2. motion for new trial;
3. appeal;
4. petition for relief from a judgment of default;
5. annulment of judgment under Rule 47; and
6. certiorari under Rule. 65.
Q: Mario was declared in default but before judgment was rendered, he decided to file a
motion to set aside the order of default.
A. What should Mario state in his motion in order to Justify the setting aside of the order of
default? (3%)
B. In what form should such motion be? (2%) (2001 Bar Question)
SUGGESTED ANSWER:
A. In order to justify the setting aside of the order of default, Mario should state in his motion that
his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a
meritorious defense. [Sec. 3(b) of Rule9,1997 Rules of Civil Procedure).
B. The motion should be under oath. (Id.)
d. Actions where default is not allowed
A defendant who fails to file a timely Answer or responsive pleading will not be declared in
default in: (2012 BAR)
a. probate proceedings where the estate is valued at P 1 00,000;
b. forcible entry cases;
c. collection case not exceeding P 100,000;
d. violation of rental law.
Q: Defendant was declared in default by the Regional Trial Court (KTC). Plaintiff was
allowed to present evidence in support of his complaint. Photocopies of official receipts and
original copies of affidavits were presented in court, identified by plain tiff on the witness
stand and marked as exhibits. Said documents were offered by plaintiff and admitted in
evidence by the court on the basis of which the RTC rendered judgment in favor of the
plaintiff, pursuant to the relief prayed for. Upon receipt of the judgment, defendant appeals
to the Court of Appeals claiming that the judgment is not valid because the RTC based its
judgment on mere photocopies and affidavits of persons not presented in court.
A. Is the claim of defendant valid? Explain. (3%)
B. Will your answer be the same if the photocopies of official receipts and photocopies
of affidavits were attached to the position paper submitted by plaintiff in an action for
unlawful detainer filed with the Municipal Trial Court on which basis the court rendered
Judgment in favor of plaintiff? Explain. (2%) (2000
A. The claim of defendant is not valid because under the 1997 Rules, reception of evidence is not
required. After a defendant is declared in default, the court shall proceed to render Judgment
granting the claimant such relief as his pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence, which may be delegated to the clerk of court. (Sec. 3,
Rule 9, 1997 Rules of Civil Procedure)
ALTERNATIVE ANSWER:
The claim of defendant is valid, because the court received evidence which it can order in its own
discretion, in which case the evidence of the plaintiff must pass the basic requirements of
admissibility.
SUGGESTED ANSWER:
B. The claim of defendant is valid, because although summary procedure requires merely the
submission of position papers, the evidence submitted with the position paper must be admissible
in evidence. (Sec. 9 of the Revised Rule on Summary Procedure). Photocopies of official
receipts and affidavits are not admissible without proof of loss of the originals. (Sec. 3 of Rule 130)
Q: At a pre-trial hearing in the Regional Trial Court of which the plaintiff and the defendant,
as well as their respective attorneys of record were duly notified, only plaintiff’s attorney
appeared but without the requisite power of attorney authorizing him to fully and effectively
represent plaintiff at the pre-trial hearing.
Because of the absence of the defendant and his counsel, plaintiff’s attorney moved in open
court to have the defendant declared as in default.
Under the circumstances, what should the court do? Discuss fully. (1992 Bar
Question) Suggested Answer:
The court should deny the motion to have the defendant declared as in default and dismiss the
action on the ground that only the plaintiff’s attorney appeared but without the requisite power of
attorney to fully and effectively represent plaintiff at the pre-trial hearing. [Home Insurance
Company vs. U.S. Lines Co., 21 SCRA 865)
Considering the fact that plaintiff’s attorney appeared, the court should make the dismissal without
prejudice, or reset the pre-trial hearing with notice to the parties.
Answer:
2. A plaintiff who fails to prosecute may be declared non-suited or as in default. (Sec. 3 of Rule
17)
7. Filing and service of pleadings
X filed a complaint with the RTC through ABC, a private letter forwarding agency. The date
of filing of the complaint shall be: (2012 BAR)
a. the date stamped by ABC on the envelope containing the complaint.
b. the date of receipt by the Clerk of Court.
c. the date indicated by the receiving clerk of ABC. d. the date when the case is officially raffled.
a. Modes of service (Personal service, Service by mail, Substituted service)
Atty. X fails to serve personally a copy of his motion to Atty. Y because the office and
residence of Atty. Y and the latter's client changed and no forwarding addresses were given.
Atty. X's remedy is to: (2012 BAR)
a. Serve by registered mail;
b. Serve by publication;
c. Deliver copy of the motion to the clerk of court with proof of failure to serve;
d. Certify in the motion that personal service and through mail was impossible.
Q: “A” filed before the Regional Trial Court in Makati, Metro Manila, an action for damages
against “B” for a tort alledgedly committed by “B” while “B” was on a vacation in the
Philippines when he temporarily lived at the residence of his brother in Makati. The
summons was served on “BY brother. “B’s” lawyer filed a motion to dismiss on behalf of “B”
and asserted that “B” was not a resident of and could not be found in 'the Philippines so that
the court cannot acquire jurisdiction over his person. The motion also alleged that anyway
the action has prescribed the further asserted a claim for litigation expenses. Assume that
“B’s" lawyer had been authorized by “B” to represent him.
If you were the judge, will you dismiss the case on the ground of the court’s lack of
jurisdiction over the person of “B”? Explain. (1987 Bar Question)
Answer:
No. Although substituted service of summons on “B’s” brother was not valid inasmuch as “B” was
not a resident of the Philippines, the motion to dismiss filed by “B’s” lawyer , constituted a
voluntary appearance, inasmuch as it not only questioned the jurisdiction of the court over his
person, but also alleged prescription and a claim for litigation expenses. (Note: The claim for
litigation expenses may properly be made In a counterclaim.)
Which of the following is NOT REGARDED as a sufficient proof of personal service

of pleadings? (2011 BAR)
(A) Official return of the server. (B) Registered mail receipt.
(C) Written admission of the party served.
(D) Affidavit of the server with a statement of the date, place and manner of service.
8. Amendment
a. Amendment as a matter of right
Q: Arturo lent PI Million to this friend Robert on the condition that Robert execute a
promissory note for the loan and a real estate mortgage over his property
located in Tagaytay City. Robert complied. In his promissory note dated September 20, 2006,
Robert undertook to pay the loan within a year from its date at 12% per annum interest. In
June 2007, Arturo requested Robert to pay ahead of time but the latter refused and
insisted on the agreement. Arturo issued a demand letter and when Robert did not
comply, Arturo filed an action to foreclose the mortgage. Robert moved to dismiss the
complaint for lack of cause of action as the debt was not yet due. The resolution of the motion
to dismiss was delayed because of,the retirement of the judge.
a) On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed an amended
complaint alleging that Robert’s debt had in the meantime become due but that Robert
still refused to pay. Should the amended complaint be allowed considering that no
answer has been filed? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
a) No. Even though an amendment of the complaint before answer is a matter of right, lack of a
cause of action at the commencement of a suit is not cured by the accrual of a cause of action
subsequent thereto, such that an amendment setting up the after- accrued cause of action is not
allowed (Swagman Hotels And Travel, Inc. v. Court of Appeals, 455 SCRA 175 [2005]).
b. Amendments by leave of court
Q: After an answer has been filed, can the plaintiff amend his complaint, with leave of court,
by changing entirely the nature of the action? (2003 Bar Question)
SUGGESTED ANSWER:
Yes. the present rules allow amendments substantially altering the nature of the cause of action.
(Sec. 3, Rule 10, 1977 Rules of Civil Procedure; Heirs of Marcelino Pagobo v. Court of Appeals,
280 SCRA 870 [1997]). This should only be true, however, when the substantial change or
alteration in the cause of action or defense shall serve the higher interests of substantial justice and
prevent delay and equally promote the laudable objective of the rules which is to secure a just,
speedy and inexpensive disposition of every action and proceeding. (Valenzuela v. Court of
Appeals, 363 SCRA
779 [2001]).
c. Formal amendment
d. Amendments to conform to or authorize presentation of evidence
With leave of court, a party may amend his pleading if: (2012 BAR)
a. there is yet no responsive pleading served. b. the amendment is unsubstantial.
c. the amendment involves clerical errors of defect in the designation of a party. d. the amendment
is to conform to the evidence.
Danny filed a complaint for damages against Peter. In the course of the trial, Peter
introduced evidence on a matter not raised in the pleadings. Danny promptly objected on the
ground that the evidence relates to a matter not in issue. How should the court rule on the
objection? (2013 BAR)
(A) The court must sustain the objection.
(B) The court must overrule the objection.
(C) The court, in its discretion, may allow amendment of the pleading if doing so would serve
the ends of substantial justice.
(D) The court, in its discretion, may order that the allegation in the pleadings
which do not conform to the evidence presented be stricken out. (E) The matter is subject to the
complete discretion of the court.
Q: In a complaint for a sum of money filed before the MM Regional Trial Court, plaintiff did
not mention or even just hint at any demand for payment made on defendant before
commencing suit. During the trial, plaintiff duly offered Exh. “A" in evidence for the stated
purpose of proving the making of extrajudicial demand on defendant to pay P500.000, the
subject of the suit. Exh. “A" was a letter of demand for defendant to pay said sum of money
within 10 days from receipt, addressed to and served on defendant some two months before
suit was begun. Without objection from defendant, the court admitted Exh. “A" in evidence.
Was the court’s admission of Exh. “A” in evidence erroneous or not? Reason. (5%) (2004 Bar
Question)
SUGGESTED ANSWER:
The court’s admission of Exh. ‘‘A’’ in evidence is not erroneous. It was admitted in evidence
without objection on the part of the defendant. It should be treated as if it had been raised in the
pleadings. The complaint may be amended to conform to the evidence, but if it is not so amended,
it does not affect the result of the trial on this issue. (Sec. 5 of Rule 10).
Q: During trial, plaintiff was able to present, without objection on the part of defendant in an
ejectment case, evidence showing that plaintiff served on defendant a written demand to
vacate the 'subject property before the commencement of the suit, a matter not alleged or
otherwise set forth in the pleadings on file.
May the corresponding pleading still be amended to conform to the evidence? Explain.
(5%)(2004 Bar Question)
SUGGESTED ANSWER:
Yes. The corresponding pleading may still be amended to conform to the evidence, because
the written demand to vacate, made prior to the commencement of
the ejectment suit, was presented by the plaintiff in evidence without objection on the part of the
defendant. Even if the demand to vacate was jurisdictional, still, the amendment proposed was to
conform to the evidence that was already in the record and not to confer jurisdiction on the court,
which is not allowed. Failure to amend, however, does not affect the result of the trial on these
issues. (Sec. 5 of Rule 10).
ALTERNATIVEANSWER:
It depends. In forcible entry, the motion may be allowed at the discretion of the court, the demand
having been presented at the trial without objection on the part of the defendant. In unlawful
detainer, however, the demand to vacate is jurisdictional and since the court did not acquire
jurisdiction from the very beginning, the motion to conform to the evidence cannot be
entertained. The amendment cannot be allowed because it will in effect confer jurisdiction when
there is otherwise no jurisdiction.
Q: An information was filed, in the proper court against Arturo charging him with theft of
300 blocks of industrial aluminum worth P999.000.00 allegedly committed “on or about the
period from January 1986 to December 23,1991. Arturo filed a motion to quash the
information on the ground that it was grossly insufficient and fatally defective since there is
such a great gap in the inclusive period of the alleged commission of the offense. He is, in
effect, being deprived of a reasonable opportunity to defend himself.
In resolving the motion to quash, what basic and ancillary rulings should the court make so
that it can extend to the accused optimum and adequate relief. Discuss fully. (1992 Bar
Question)
Suggested Answer:
The court may grant the motion to quash on the ground that the allegation of the time of
commission of the offense is defective because the period from January 1986 to December 23.
1991, or almost six years, is too indefinite to give the accused an opportunity to prepare-his
defense; or the court may order the amendment of the information or the submission of a bill of
particulars so as to allege the actual date or at least as near to it as possible in order not to surprise
and substantially prejudice the accused.
Q: A complaint was filed by the counsel for Superior Sales (an entity without a distinct
juridical personality) against Mr. Garcia on a money claim for goods delivered. Mr. Garcia
did not file a motion to dismiss. Eventually, trial was held and his liability was established
through several invoices, each of which uniformly- showed on its face that Mr. Tan is the
proprietor of Superior Sales. After Superior Sales had rested its case. Mr. Garcia filed a
motion to dismiss on the ground that, since there is actually no person properly suing as
plaintiff, no relief can be granted by the court. On the other hand, the counsel for Superior
Sales filed a motion to amend the complaint to make it conform to the evidence,
that the real party plaintiff is Mr. Tan. The court denied said motion on the ground that it
was filed too late and instead, dismissed the case.
Did the court act correctly? Explain. (1992 Bar Question) Suggested Answer:
No, the court erred in denying the motion to amend the complaint and dismissing the case.
The mistake in the name of the plaintiff (which should have been Mr. Tan instead of Superior Sales
which had no juridical personality) was cured by the presentation of evidence (without objection)
that Mr. Tan is the proprietor of Superior Sales. Hence the amendment of the complaint to conform
to the evidence was proper, and even if no amendment was made, it would not affect the result of
the trial on the issue of the real party in interest. (Sec. 5 of Rule 10)
e. Effect of amended pleading
Q: Upon termination of the pre-trial, the judge dictated the pretrial order in the presence of
the parties and their counsel, reciting what had transpired and defining three (3) issues to be
tried.
[a] If, immediately upon receipt of his copy of the pretrial order, plaintiffs counsel should
move for its amendment to include a fourth (4th) triable issue which he allegedly
inadvertently failed to mention when the judge dictated the order. Should the motion to
amend be granted? Reasons. (2%) (2009 Bar Question)
SUGGESTED ANSWER:
Depending on the merit of the issue sought to be brought in by the amendment, the motion to
amend may be granted upon due hearing. It is a policy of the Rules that parties should be afforded
reasonable opportunity to bring about a complete determination of the controversy between them,
consistent with substantial justice. With this end in view, the amendment before trial may be
granted to prevent manifest injustice. The matter is addressed to the sound and judicious discretion
of the trial court.
[b] Suppose trial had already commenced and after the plaintiffs second witness had testified,
the defendant’s counsel moves for the amendment of the pre-trial order to include a fifth
(5th) triable issue vital to his client’s defense. Should the motion be granted over the
objection of plaintiffs counsel? Reasons. (3%) (2009
Bar Question)
SUGGESTED ANSWER:
The motion may be denied since trial had already commenced and two witnesses for the
plaintiff had already testified. Courts are required to issue pre-trial
Order after the pre-trial conference has been terminated and before trial begins, precisely
because the reason for such Order is to define the course of the action during the trial. Where trial
had already commenced, more so the adverse party had already presented witnesses
Q: Arturo lent PI Million to this friend Robert on the condition that Robert execute a
promissory note for the loan and a real estate mortgage over his property located in Tagaytay
City. Robert complied. In his promissory note dated September 20, 2006, Robert undertook
to pay the loan within a year from its date at 12% per annum interest. In June 2007, Arturo
requested Robert to pay ahead of time but the latter refused and insisted on the
agreement. Arturo issued a demand letter and when Robert did not comply, Arturo filed an
action to foreclose the mortgage. Robert moved to dismiss the complaint for lack of cause of
action as the debt was not yet due. The resolution of the motion to dismiss was delayed
because of,the retirement of the judge.
a) On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed an amended
complaint alleging that Robert’s debt had in the meantime become due but that Robert
still refused to pay. Should the amended complaint be allowed considering that no
answer has been filed? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
No. Even though an amendment of the complaint before answer is a matter of right, lack of a cause
of action at the commencement of a suit is not cured by the accrual of a cause of action subsequent
thereto, such that an amendment setting up the after-accrued cause of action is not allowed
(Swagman Hotels And Travel, Inc. v. Court of Appeals, 455 SCRA 175 [2005]).
b) Would your answer be different had Arturo filed instead a supplemental complaint
stating that the debt became due after the filing of the original complaint (2%) (2008
Bar Question)
SUGGESTED ANSWER:
No, because a complaint whose cause of action has not accrued yet when filed, does not gain any
standing in court such that no amendment, whether by amended or supplemental pleading, can cure
the deficiency. The subsequent cause of action that arose may only be subject of a different suit but
cannot be pleaded as a supplement to the complaint where no cause of action exists. Simply put, no
amended or supplemental complaint is allowed (Swagman Hotels And Travel, Inc. v. Court of
Appeals, 455 SCRA
175 [2005]).
Q: On May 12. 2005, the plaintiff filed a complaint in the Regional Triad Court of Quezon
City for the collection of P250,000.00. The defendant filed a motion to dismiss the complaint
on the ground that the court had no jurisdiction over the
action since the claimed amount of P250.000.00 is within the exclusive jurisdiction
of the Metropolitan Trial Court of Quezon City.
Before the court could resolve the motion, the plaintiff, without leave of court, amended his
complaint to allege a new cause of action consisting in the inclusion of an additional amount
of P200,000.00, thereby increasing his total claim to P450,000.00. The plaintiff thereafter filed
his opposition to the motion to dismiss, claiming that the Regional Trial Court had
jurisdiction over his action.
Rule on the motion of the defendant with reasons. (4%) (2005 Bar Question) SUGGESTED
ANSWER:
The motion to dismiss should be denied. A plaintiff is entitled as a matter of right to amend the
complaint before a responsive pleading is served, without leave of court, even if there is a pending
motion to dismiss (Sec. 2, Rule 10, 1997, Rules of Civil Procedure; Soledad v. Manangun, 8 SCRA
110 11963]; Remington Industrial Sales Corporation v. Court of Appeals, 382 SCRA 499 [2002]),
While a complaint cannot be amended to confer jurisdiction on a court where there was none
(Calabig v. Villanueva,
135 SCRA300 [1985]), the rule applies where a responsive pleading has already been
filed because in such a case, amendment should be by leave of court under Section 3
Rule 10. If the court is without jurisdiction, it has no jurisdiction to grant leave of court. A
motion to dismiss is not a responsive pleading, therefore, amendment is a matter of right (Rule 10,
Sec. 1, Rules of Civil Procedure Dauden-Herfiaez v. de los Angeles, 27
SCRA 1276 [1969]; Gumabay v. Baralin 77 SCRA 258 [1977]).
Q: X, an illegitimate child of Y, celebrated her 18th birthday on May 2, 1996. A month before
her birthday. Y died. The legitimate family of Y refused to recognize X as an illegitimate
child of Y. After countless efforts to convince them, X filed on April 25, 2000 an action for
recognition against Z, wife, of Y. After Z filed her answer on August 14, 2000, X filed a
motion for leave to file an amended complaint and a motion to admit the said amended
complaint impleading the three (3) legitimate children of Y. The trial court admitted the
amended complaint on August 22, 2000. What is the effect of the admission of the
amended complaint? Has the action of X prescribed? Explain. (5%) (2000 Bar Question)
SUGGESTED ANSWER:
No. The action filed on April 25, 2000 is still within the four-year prescriptive period which started
to run on May 2, 1996. The amended complaint impleading the three legitimate children, though
admitted on August 22, 2000 beyond the four-year prescriptive period, retroacts to the date of filing
of the original complaint. Amendments impleading new defendants retroact to the date of the filing
of the complaint because they do not constitute a new cause of action. (Verzosa u. Court of
Appeals, 299 SCRA
100 (1938]).
(Note: The four-year period is based on Article 285 of the Civil Code)
ALTERNATIVE ANSWER:
Under the 1997 Rules of Civil Procedure, if an additional defendant is impleaded in a later
pleading, the action is commenced with regard to him on the date of the filing of such later
pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court.
(Sec. 5 of Rule 1).
Consequently, the action of X has prescribed with respect to the three (3)
legitimate children of Y who are indispensable parties.
ANOTHER ALTERNATIVE ANSWER:
Under Article 175 of the Family Code, the action must be brought within the lifetime of X if the
action is based on a record of birth or an admission of filiation In a public document or a private
handwritten instrument signed by Y. In such case, the action of X has not prescribed.
However, if the action is based on the open and continuous possession of the status of an
illegitimate child, the action should have been brought during the lifetime of Y. In such case, the
action of X has prescribed.
Q: Michelle sued Juliet for reinvindication for the recovery of land. After the hearing but
previous to the rendition-of judgment, Michelle amended her complaint making the prin-
cipal action one for rescission of contract. Juliet objected.
If you were the judge, would you allow the amendment? (1994 Bar Question) Answer:
No. I would not allow the amendment because the amendment of the complaint from recovery of
land to one for rescission of contract is a substantial change in the cause of action which may not
be done alter the trial and previous to the rendition of judgment. (Torres vs. Tomacruz, 49 Phil.
913).
Alternative Answer:
Yes. The amendment of the complaint to one of rescission of contract is not a substantial change in
the cause of action, because Michelle’s objective is actually for the recovery of land. The rule on
amendment should not be Inflexible but liberal.
F. Summons
1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
W, a legal researcher in the RTC of Makati, served summons on an amended complaint on Z

at the latter's house on a Sunday. The service is invalid because: (2012 BAR)
a. it was served on a Sunday.
b. the legal researcher is not a "proper court officer". c. (a) and (b) above
d. there is no need to serve summons on an amended complaint.
Summons was served on "MCM Theater," a business entity with no juridical personality,
through its office manager at its place of business. Did the court acquire jurisdiction over
MCM Theater’s owners? (2011 BAR)
(A) Yes, an unregistered entity like MCM Theater may be served with summons through its office
manager.
(B) No, because MCM has no juridical personality and cannot be sued.
(C) No, since the real parties in interest, the owners of MCM Theater, have not been served with
summons.
(D) Yes since MCM, as business entity, is a de facto partnership with juridical
personality.
Q: Summons was issued by the MM Regional Trial Court and actually received on time by
defendant from his wife at their residence. The sheriff earlier that day had delivered the
summons to her at said residence because defendant was not home at the time. The sheriff’s
return or proof of service filed with the court in sum states that the summons, with attached
copy of the complaint, was served on defendant at his residence thru his wife, a person of
suitable age and discretion then residing therein. Defendant moved to dismiss on the ground
that the court had no jurisdiction over his person as there was no valid service of summons
on him because the sheriffs return or proof of service does not show that the sheriff first
made a genuine attempt to serve the summons on defendant personally before serving it thru
his wife.
Is the motion to dismiss meritorious? What is the purpose of summons and by whom may it
be served? Explain. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
The motion to dismiss is not meritorious because the defendant actually received the summons on
time from his wife. Service on the wife was sufficient. (Boticano v. Chu,
148 SCRA 541 [1987D. It is the duty of the court to look into the sufficiency of the
service. The sheriffs negligence in not stating in his return that he first made a genuine
effort to serve the summons on the defendant, should not prejudice the plaintiff. (Mapa v. Court of
Appeals, 214 SCRA 417 [1992]).
The purpose of the summons is to inform the defendant of the complaint filed against him and to
enable the court to acquire jurisdiction over his person. It may served by the sheriff or his deputy or
any person authorized by the court.
ALTERNATIVE ANSWER:
Yes. The motion to dismiss is meritorious. Substituted service cannot be effected unless the sheriffs
return shows that he made a genuine attempt to effect personal service on the husband.
Proof of service of summons shall be through the following, except : (2012 BAR)
a. written return of the sheriff;
b. affidavit of the person serving summons;
c. affidavit of the printer of the publication;
d. written admission of the party served.
2. Voluntary appearance
Q: While the trial was ongoing, the lawyer of Mario Reyes discovered that there was
improper service of summons, the summons having been sent by registered mail. He filed a
motion to dismiss on the ground that the court had not acquired jurisdiction over the person
of Mario Reyes.
Should the said motion be granted? Explain your answer. (1990 Bar Question) Answer:
No, because by filing his answer and going to trial without previous objection to the lack of
jurisdiction over his person, Mario Reyes is deemed to have waived the defect of improper service
of summons. (Rule 14)
A. What is the effect of absence of summons on the judgment rendered in the case? (2%)
B. When additional defendant is impleaded in the action, is it necessary that summons be

served upon him? Explain; (2%)
C. Is summons required to be served upon a defendant who was substituted for the
deceased? Explain. (2%)
D. A sued XX Corporation (XXC), a corporation organized under Philippine laws, for
specific performance when the latter failed to deliver T-shirts to the former as stipulated in
their contract of sale. Summons was served on the corporation’s cashier and director. Would
you consider service of summons on either officer sufficient? Explain. (2%)
SUGGESTED ANSWER:
A. The effect of the absence of summons on a judgment would make the judgment null and void
because the court would not have jurisdiction over the person of the defendant, but if the
defendant voluntarily appeared before the court, his appearance is equivalent to the service
of summons. (Sec. 20, Rule 14, 1997 Rules)
B. Yes. Summons must be served on an additional defendant impleaded in the action so that the
court can acquire jurisdiction over him, unless he makes a voluntary appearance.
C. No. A defendant who was substituted for the deceased need not be served with summons
because it is the court which orders him as the legal representative of the deceased to appear and
substitute the deceased. (Sec. 16 of Rule 3.)
D. Summons on a domestic corporation through its cashier and director are not valid under the
present rules. (Sec. 11, Rule 14, Rules of Court.) They have been removed from those who
can be served with summons for a domestic corporation. Cashier was substituted by treasurer. (Id.)
3. Personal service
Q: Tina Guerrero filed with the Regional Trial Court of Biñan, Laguna, a complaint for sum
of money amounting to PI Million against Carlos Corro. The complaint alleges, among
note signed by Carlos and his wife, jointly and severally. Carlos was served with summons
which was received by Linda, his secretary. However, Carlos failed to file an answer to the
complaint within the 15- day reglamentary period. Hence, Tina filed with the court a motion
to declare Carlos in default and to allow her to present evidence ex parte. Five days
thereafter, Carlos filed his verified answer to the complaint, denying under oath the
genuineness and due execution of the promissory note; and contending that he has fully paid
his loan with interest at 12% per annum. (2006 Bar Question)
Was the summons validly served on Carlos? 2.5% SUGGESTED ANSWER:

No, the summons was not validly served on Carlos. As a general rule, summons must be served on
the defendant in person (Sec. 6, Rule 14 of the 1997 Revised lules
of Civil Procedure). Substituted service may be resorted to only when the defendant cannot be
served personally within a reasonable time and for a justifiable eason (Sec. 7, Rule 14 of the 1997
Revised Rules of Civil Procedure). The return must show impossibility of service and efforts of the
Sheriff to effect personal service.
4. Substituted service
Q: Alfie Bravo filed with the Regional Trial Court of Caloocan, a complaint for a sum of money
against Charlie Delta. The claim is for Php1.5Million. The complaint alleges that Charlie
borrowed the amount from Alfie and duly executed a promissory note as evidence of the loan.
Charlie’s office secretary, Esther, received the summons at Charlie’s office.
Charlie failed to file an answer within the required period, and Alfie moved to declare Charlie in
default and to be allowed to present evidence ex parte. Ten days later, Charlie filed his verified
answer, raising the defense of full payment with interest.
a) Was there proper and valid service of summons on Charlie? (2013 BAR)
A: NO. There is no showing that earnest efforts were exerted to personally serve the summons on
the defendant before substituted service was resoted to; the service of sumoons was improper.
In an action strictly in personam like a complaint for sum of money, personal service on the
defendant is the preferred mode of service, that is, by handing a copy of the summons to the
defendant in person. If defendant, for excusable reasons, cannot be served with summons within a
reasonable period, then substituted service can be resorted to (Manotoc v. Court of Appeals, G.R.
No.
130974, August 16, 2006). Otherwise stated, it is only when the defendant cannot be served
personally within a reasonable time that a substituted service
may be made. Impossibility of prompt service should be shown by stating the
efforts made to find the defendant personally and the fact that such efforts failed. This statement
should be made in the proof of service (Galura v. Math-Agro Corporation, G.R. No. 167230,
August 14, 2009).
Since there was no prior attempt to serve the summons in person, the substituted service to
Charlie’s secretary is invalid.
b) If declared in default, what can Charlie do to obtain relief? (2013 BAR)
A: If Charlie is declared in default, he has the following remedies to wit:

1. he may, at any time after discovery of the default but before judgment, file a motion, under oath,
to set aside the order of default on the ground that his failure to answer was due to fraud, accident,
mistake or excusable neglect, and that he has a meritorious defense;
2. if judgment has already been rendered when he discovered the default, but before the same has
become final and executory, he may file a motion for new trial under Section 1(a) of Rule 37;
3. if he discovered the default after the judgment has become final and executory, he may
file a petition for relief under Section 2 of Rule 38; and
4. he may also appeal from the judgment rendered against him as contrary to
the evidence or to the law, even if no petition to set aside the order of default has been presented by
him. (B.D. Longspan Builders, Inc. v. R.S. Ampeloquio Realty Development, G.R. No. 169919,
September 11, 2009)
NOTE: There are additional remedies to address judgments by default: Motion for
Reconsideration (Rule 37), Annulment of Judgment (Rule 47) and Petition for Certiorari (Rule 65).
Q: Summons was issued by the MM Regional Trial Court and actually received on time by
defendant from his wife at their residence. The sheriff earlier that day had delivered the
summons to her at said residence because defendant was not home at the time. The sheriff’s
return or proof of service filed with the court in sum states that the summons, with attached
copy of the complaint, was served on defendant at his residence thru his wife, a person of
suitable age and discretion then residing therein. Defendant moved to dismiss on the ground
that the court had no jurisdiction over his person as there was no valid service of summons
on him because the sheriffs return or proof of service does not show that the sheriff first
made a genuine attempt to serve the summons on defendant personally before serving it thru
his wife.
Is the motion to dismiss meritorious? What is the purpose of summons and by whom may it
be served? Explain. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
The motion to dismiss is not meritorious because the defendant actually received the summons on
time from his wife. Service on the wife was sufficient. (Boticano v. Chu,
148 SCRA 541 [1987D. It is the duty of the court to look into the sufficiency of the
service. The sheriffs negligence in not stating in his return that he first made a genuine effort to
serve the summons on the defendant, should not prejudice the plaintiff. (Mapa v. Court of Appeals,
214 SCRA 417 [1992]).
The purpose of the summons is to inform the defendant of the complaint filed against him and to
enable the court to acquire jurisdiction over his person. It may served by the sheriff or his deputy or
any person authorized by the court.
ALTERNATIVE ANSWER:
Yes. The motion to dismiss is meritorious. Substituted service cannot be effected unless the sheriffs
return shows that he made a genuine attempt to effect personal
service on the husband.
5. Extra-territorial service, when allowed
Q: In Its complaint before the RTC, Singer (Phil.). Inc., alleged that it is a corporation
organized and existing under Philippine laws: that another corporation, with the corporate
name Singer, Inc. and organized under the law of the United States, had incurred obligations
to several foreign creditors whom it refuses to pay; that although Singer (Phil.) Me. is a
corporation separate and distinct from Singer, Inc. and that Singer (Phil,). Inc. had no
participation or liability whatsoever regarding the transactions between Singer, Inc. and the
creditors, said creditors, have been demanding from Singer (Phil.). Inc. the payment of the
obligations to them (creditors of Singer, Inc.)
Singer (Phil.). Inc. therefore, prayed for Injunctive relief against the creditors (whom it
impleaded as the defendants in the action) by way of enjoining the latter from making further
demands on it for payment of the obligations of Singer. Inc. to them (creditors.)
The defendants are non-residents and without business addresses in the Philippines but in the
U.S. Consequently, Singer (Phil.), Inc. asked for leave of court to effect extraterritorial
service of summons pursuant to Sec. 17. Rule 14 of the Rules of Court. The trial court
granted the motion.
The defendants filed special appearances and questioned the jurisdiction of the court over
their persons. They contended that the court cannot acquire jurisdiction over their
persons because the action does not fall under any oi the situations authorizing
extraterritorial service or summons.
Is extraterritorial service of summons proper? Why? (1993 Bar Question) Answer:
No because it is only when the action affects the personal status of the plaintiff, or any property in
the Philippines in which defendants have or claim an interest, or which the plaintiff has attached,
that extraterritorial service of summons is proper. (Sec. 17 of Rule
14) In this case, the action is purely an action for injunction, which is a personal action as well as
an action in personam and not an action in rem or quasi in rem. Hence,
personal or substituted service of summons is necessary in order to confer jurisdiction
on the court Extraterritorial service of summons on defendants will not confer on the court
jurisdiction or power to compel them to obey its orders. [Kawasaki Port Services Corporation vs.
Amores, 199 SCRA 230)
(1) Are the rules on summons under Rule 14 of the Rules of Court applicable equally in
actions before the Regional Trial Courts as well as in the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts?
Answer:
Yes, because the procedure to be observed in the Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Court is the same as that observed in the Regional Trial Courts, and
Rule 5 which conveyed procedure in inferior courts including summons, was repealed. (Sec. 8 of
Interim Rules).
(2) When is extra-territorial service of summons proper? Answer:
Extraterritorial service of summons, is proper when the defendant does not reside and is not found
in the Philippines and the action affects the personal status of the plaintiff or relates to, or the
subject of which is, property within the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the defendant has been
attached within the Philippines. (Sec.
17 of Rule 14). It is also proper when the defendant ordinarily resides within the
Philippines, but is temporarily out of it. (Sec. 18 of Rule 14)
A. x x x B. x x x C. x x x D. x x x
E. Summons may be served by mail, (2009 Bar Question) SUGGESTED ANSWER:
FALSE. Rule 14 of the Rules of Court, on Summons, provide only for serving Summons (a) to the
defendant in person; or (b) if this is not possible within a reasonable time, then by substituted
service in accordance with Sec. 7 thereof; or (c) any of the foregoing two ways is not possible,
then with leave of court, by publication in accordance with same Rule.
ALTERNATIVE ANSWER:
TRUE, but only in extraterritorial service under Sec. 15 of the Rule on Summons where service
may be effected “in any other manner the court may deem sufficient".
G. Motions
1. Motions in general
a. Definition of a motion
b. Motions versus pleadings
Q: True or False. If the answer is false, explain your answer briefly. a) x x x

b) x x x
c) A motion is a pleading. (2%) (2007 Bar Question)
SUGGESTED ANSWER:
FALSE. A motion is not a pleading but a mere application for relief other than by a pleading (Rule
15, Sec. 1, Rules of Court).
c. Notice of hearing and hearing of motions
The following motions require a notice of hearing served on the opposite party, except: (2012
BAR)
a. Motion to Set Case for Pre-trial;
b. Motion to take deposition;
c. Motion to correct TSN;
d. Motion to postpone hearing.
Q: The Regional Trial Court rendered judgment against ST, copy of which was received by
his counsel on February 28, 2000. On March 10, 2000, ST, through counsel, filed a motion for
reconsideration of the decision with notice to the Clerk of Court submitting the motion for
the consideration of the court. On March 15,
2000, realizing that the Motion lacked a notice of hearing, ST*s counsel filed a
supplemental pleading. Was the Motion for Reconsideration filed within the
reglementary period? Explain. (5%) (2000 Bar Question)
SUGGESTED ANSWER:
Yes, because the last day for filing a motion for reconsideration was March 15 if February had 28
days or March 16 if February had 29 days. Although the original motion for reconsideration was
defective because it lacked a notice of hearing, the defect was cured on time by its filing on March
15 of a supplemental pleading, provided the motion was set for hearing and served on the adverse
party at least three (3) days before the date of hearing. (Sec. 4, Rule 15. 199.7 Rules of Civil
Procedure).
d. Omnibus Motion Rule
The defendant in an action for sum of money filed a motion to dismiss the complaint
on the ground of improper venue. After hearing, the court denied the
motion. In his answer, the defendant claimed prescription of action as affirmative defense,
citing the date alleged in the complaint when the cause of action accrued. May the
court, after hearing, dismiss the action on ground of prescription? (2011 BAR)
(A) Yes, because prescription is an exception to the rule on Omnibus Motion.
(B) No, because affirmative defenses are barred by the earlier motion to dismiss. (C) Yes, because
the defense of prescription of action can be raised at anytime
before the finality of judgment.
(D) No, because of the rule on Omnibus Motion.
Q: Charisse, alleging that she was a resident of Lapu-Lapu City, filed a complaint for
damages against Atlanta Bank before RTC of Lapu-Lapu City, following the dishonor of a
check she drew in favor of Shirley against her current account which she maintained in the
bank’s local branch.
The bank filed a Motion to Dismiss the complaint on the ground that it failed to state a cause
of action, but it was denied. It thus filed an Answer. (2010 Bar Question)
A. In the course of the trial, Charisse admitted that she was a US citizen residing in Los
Angeles, California and that she was temporarily billeted at the Pescado Hotel in Lapu-Lapu
City, drawing the bank to file another motion to dismiss, this time on the ground of improper
venue, since Charisse is not a resident of Lapu- Lapu City.
Charisse opposed the motion citing the omnibus motion rule.” Rule on the motion.
(3%)
SUGGESTED ANSWER:
The bank’s second motion to dismiss which is grounded on improper venue of an action is deemed
waived by the bank’s filing an earlier motion to dismiss without raising improper venue as an issue,
and more so when the bank filed an Answer without raising improper venue as an issue after its
first motion to dismiss was denied.
Under the “omnibus motion rule” (Rule 15, Sec. 8, Rules of Court) which governs the bank’s
motion to dismiss, such motion should include all objections then available; otherwise, all
objections not so included shall be deemed waived.
Although the improper venue became known only in the course of the trial, the same should not be
allowed to obstruct or disturb the proceedings since venue of civil actions is defined for the
convenience of the parties, may jurisdictional.
ALTERNATIVE ANSWER:
The "omnibus motion rule" should not apply, because the improper venue became known
and thus available only to the movant bank after the motions to dismiss
were filed and resolved by the court, and in the course of The trial of the case. In fairness to the
defendant bank, it should not be precluded by the "omnibus motion rule" From raising objection to
the improper venue only when said ground for objection became known to it.
The court may not resolve the second motion to dismiss precisely because of the "omnibus motion
rule", Since the bank filed an earlier motion to dismiss but did not raise the ground of improper
venue, the subsequently Filed an Answer wherein the improper venue has not again been raised.
Hence, the question of improper venue has become moot and academic.
The only grounds not barred by the "omnibus motion rule" are (a) lack of jurisdiction over the
subject matter; (b) litis pendencia; and (c) bar by prior judgment or by Statute of limitations.
B. Suppose Charisse did not raise the "omnibus motion rule, can the judge proceed to resolve
the motion to dismiss? Explain. (3%)
SUGGESTED ANSWER:
Yes, the judge can proceed to resolve the motion to dismiss, because the ground raised therefor
became known to the movant only during the trial, such that it was only. Then that the objection
became available to him.
C. Suppose the judge correctly denied the second motion to dismiss and rendered
judgment in favor of Charisse, ordering the bank to pay her Pl00, 000 in damages plus legal
interest. The judgment became final and executory in 2008. To date, Charisse has not moved
to execute the judgment. The bank is concerned that its liability will increase with the
delay because of the interest on the judgment award. As counsel of the bank, what move
should you take? (3%)
SUGGESTED ANSWER:
As counsel of the bank, I shall recommend to the bark as judgment obligor, to make a tender of
payment to the judgment oblige and thereafter make a consignation of the amount due by filing an
application therefor placing the same at the disposal of the court which rendered the judgment
(Arts. 1256 and 1258, Civil Code).
2. Motions for Bill of Particulars
a. Purpose and when applied for
(a) When can a bill of particulars be availed of?

SUGGESTED ANSWER:
(a) Before responding to a pleading, a party may move for a bill of particulars of any matter which
is not averred with sufficient definiteness or particularity to enable him properly to prepare his
responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from
service thereof. (Sec. 1 of Rule 12)
b. Actions of the court
X filed a motion for Bill of Particulars, after being served with summons and a copy of the
complaint However, X's motion did not contain a notice of hearing. The court may therefore:
(2012 BAR)
a. require the clerk of court to calendar the motion.
b. motu proprio dismiss the motion for not complying with Rule 15. c. allow the parties the
opportunity to be heard.
d. return the motion to X's counsel for amendment.
Alternative Answer:
c. allow the parties the opportunity to be heard.
Q; Within the period for filing a responsive pleading, the defendant filed a motion for bill of
particulars that he set for hearing on a certain date. However, the defendant was surprised to
find on the date set for hearing that the trial court had already denied the motion on the day
of its filing, stating that the allegations of the complaint were sufficiently made.
Did the judge gravely abuse his discretion in acting on the motion without waiting for the
hearing set for the motion? (2008 Bar Question)
SUGGESTED ANSWER:
No, the judge did not gravely abuse his discretion when he denied the motion for bill of particulars
without waiting for the hearing set in the motion. Section 2, Rule 12 of the Rules of Court
authorizes the court to either deny or grant said motion outright upon the clerk of court bringing
such motion to the attention of the court. The motion may lack merit.
c. Compliance with the order and effect of noncompliance
xxx
What is the effect of non-compliance with the order of a bill of particulars?
SUGGESTED ANSWER:
xxx
If the order is not complied with, the court may order the striking out of the pleading or the
portions thereof to which the order was directed or make such
other order as it deems just. (Sec. 4 of Rule 12)
Q: If the judge grants the motion and orders the plaintiff to file and serve the bill of
particulars, can the trial judge dismiss the case if the plaintiff does not comply with the
order? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
Yes, the trial judge can dismiss the case if the plaintiff failed to comply with the court’s order to
file and serve the needed bill of particulars. Section 4, Rule 12 of the Rules of Court authorizes the
court to order the striking out of the pleading affected, hence the dismissal of the complaint. To the
same end is the provision of Section 3, Rule 17 of the Rules when plaintiff fails to comply for no
justifiable cause with any order of the court or with the Rules.
3. Motion to dismiss
a. Grounds
A court can motu proprio dismiss a case on the following grounds, except : (2012
BAR)
a. failure to prosecute;
b. lack of jurisdiction over the parties;
c. litis pendentia;
d. prescription.
Q: Co Batong, a Taipan, filed a civil action for damages with the Regional trial Court (RTC)
of Parañaque City against Jose Penduko, a news reporter of the Philippines Times, a
newspaper of general circulation printed and published in Parañaque City. The complaint
alleged, among others, that Jose Penduko wrote malicious and defamatory imputations
against Co Batong; that Co Batong’s business address is in Makati City; and that the libelous
article was first printed and published in Parañaque City. The complaint prayed that Jose
Penduko be held liable to pay P200,000.00 as moral damages; P150,000.00, as exemplary
damages; and P50,000.00, as attorney’s fees. Jose Penduko filed a Motion to Dismiss on the
following grounds:
The RTC is without jurisdiction because under the Totality Rule, the claim for damages in
the amount of P350,000.00 fall within the exclusive original jurisdiction of the
Metropolitan Trial Court (MeTC) of Parañaque City.
The venue is improperly laid because what the complaint alleged is Co Batong’s business
address and not his residence address.
Are the grounds invoked in the Motion to Dismiss proper? (2014)
a. The RTC is without jurisdiction because under the Totality Rule, the claim for damages in
the amount of P350,000.00 fall within the exclusive original jurisdiction of the Metropolitan
Trial Court (MeTC) of Parañaque City.
A: NO. The gorund invoked in the Motion to Dismiss is not proper. Under Article 360 of the RPC,
the civil action for damages in cases of written defamation may be filed separately in the Regional
Trial Court where the libelous article was printed and first published, regardless of the amount of
damages being claimed.
b. The venue is improperly laid because what the complaint alleged is Co

Batong’s business address and not his residence address.
A: The venue is properly laid. Under the law, the venue for the civil action involving written
defamation shall be the place where the defamatory article was printed and first published. (Art. 360,
RPC). Since the defamatory article was printed and first published in Parañaque City, the venue of
the action is properly laid. Hence, the dismissal of the Complaint will only be proper if the
Complaint failed to allege the residence of the complainant or the place where the libelous article
was printed and first published (Nocum v. Tan, G.R. No. 145022, September 23, 2005).
Which of the following grounds for dismissal invoked by the court will NOT PRECLUDE the
plaintiff from refiling his action? (2011 BAR)
(A) Res judicata.
(B) Lack of jurisdiction over the subject matter. (C) Unenforceability under the Statutes of Fraud.
(D) Prescription.
A complaint may be refiled if dismissed on which of the following grounds? (2012

BAR)
e. unenforceable under the Statute of Frauds;
f. Res Judicata;
g. Litis Pendencia;
h. Lack of jurisdiction.
b. Resolution of motion
After a hearing on a Motion to Dismiss, the court may either dismiss the case or deny the same
or: (2012 BAR)
a. defer resolution because the ground relied upon 1s not indubitable.
b. order amendment of the pleading c. conduct a preliminary hearing
d. None of the above.
Q: Plaintiff filed a complaint for a sum of money against defendant with the MeTC- Makati,
the total amount of the demand, exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs, being PI .000,000. In due time, defendant filed a
motion to dismiss the complaint on the ground of the MeTC’s lack of jurisdiction over the
subject matter. After due hearing, the MeTC 11) ruled that the court indeed lacked
jurisdiction over the subject matter of the complaint; and (2) ordered that the case therefore
should be forwarded to the proper Regional Trial Court immediately.
Was the court's ruling concerning jurisdiction correct? Was the court’s order to forward the
case proper? Explain briefly. (5%)(2004 Bar Question)
SUGGESTED ANSWER:
Yes. The MeTC did not have jurisdiction over the case because the total amount of the demand
exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, was
PI M. Its jurisdictional amount at this time should not exceed P400,000.00 (Sec. 33 of B.P. Big.
129, as amended by R.A. No. 7691).
The court's order to forward the case to the RTC is not proper. It should merely dismiss the
complaint. Under Sec. 3 of Rule 16, the court may dismiss the action or claim, deny the motion or
order the amendment of the pleading but not to forward the case to another court.
xxxxxx
Is summons required to be served upon a defendant who was substituted for the deceased?
Explain. (2%)
xxx
SUGGESTED ANSWER:
xxxxxx
No. A defendant who was substituted for the deceased need not be served with summons because it
is the court which orders him as the legal representative of
the deceased to appear and substitute the deceased. (Sec. 16 of Rule 3.)
xxx
Q: Plaintiff filed a complaint for damages against defendant with the court. Defendant moved
to dismiss the complaint on the ground that it states no cause of action. The court, after
hearing, issued an order deferring the resolution of the
motion to dismiss until the trial since the ground therefore does not appear to be indubitable.
Do you agree with the ruling of the court? Explain. (1996 Bar Question) Answer:
No. because whether or not the complaint states a cause of action is clear from the allegations of
the complaint and deferring the resolution of the motion to dismiss because the ground
therefore is not indubitable is not proper. (Foster Parents Plan vs. Demetriou, 142 SCRA 505)
Q: Mr. Avenger filed with Regional Trial Court (RTC) a complaint against Ms. Bright for
annulment of deed of sale and other documents. Ms. Bright filed a motion to dismiss the
complaint on the ground of lack of cause of action. Mr. Avenger filed an opposition to the
motion to dismiss. State and discuss the appropriate remedy/ remedies under each of the
following situations: (2014)
a. If the RTC grants Ms. Bright’s motion to dismiss and dismisses the complaint on the
ground of lack of cause of action, what will be the remedy/ remedies of Mr. Avenger?
A: Mr. Avenger can choose any of the following remedies:

1. Mr. Avenger may file a Motion for Reconsideration. If denied, he could file an appeal to the
Court of Appeals under Rule 41 since a dismissal based on lack of cause of
action (under Rule 33) is appealable.
2. Mr. Avenger may file a Motion for reconsideration. If the same is denied, he could file a
Petition for Certiorari under Rule 65 because a dismissal based on failure to state a cause of action
is considered without prejudice and therefore an interlocutory order which cannot be a subject of an
appeal under Rule 41.
3. Mr. Avenger may file a Motion for Reconsideration if the same is denied, he can simply re-file
the complaint because an Order granting a Motion to Dismiss based on failure to state a cause of
action is without prejudice to the filing of another Complaint (Section 5, Rule 16).
4. Mr. Avenger may amend his Complaint, as a matter of right, since a Motion to Dismiss is not a
responsive pleading. (Irene R. Marcos-Araneta v. Court of Appeals, G.R. No. 154096, August 22,
2008).
b. If the RTC denies Ms. Bright’s motion to dismiss, what will be her remedy/
remedies?
A:
1. Ms. Bright may file a Motion for Reconsideration. If the same is denied, she could file a special
civil action for certiorari under Rule 65. An Order denying a Motion to Dismiss is interlocutory
because it does not finally dispose of the case, and, in effect, directs the case to proceed until final
adjudication by the court. Hence, a special civil action on certiorari is the appropriate remedy.
(Section 1, Rule 41; Marmo v. Anacay, G.R. No. 182585, November 27, 2009).
2. Ms. Bright may file an Answer within the balance of the period from the filing of his Motion to
Dismiss but not less than five (5) days, and raise affirmative defenses therein. (Section 4 and 6,
Rule 16)
c. If the RTC denies Ms. Bright’s motion to dismiss and, further proceedings, including trial
on the merits, are conducted until the RTC renders a decision in favor of Mr. Avenger, what
will be the remedy/ remedies of Ms. Bright?
A: Ms. Bright may avail of the following remedies before the finality of the decision:
1. A motion for reconsideration (Sec, 1, Rule 37);
2. A motion for new trial (Sec. 1, Rule 37); and
3. Appeal (Rules 40, 41, 42, 43 and 45).
After the finality of the Decision, Ms. Bright can avail of the following:
1. Petition for relief (Rule 38);
2. Annulment of Judgment (Rule 47); and
3. Petition for Certiorari (Rule 65).
c. Remedies of plaintiff when the complaint is dismissed
Q: Defendant Xanthe filed a Motion to Dismiss Yogi’s complaint before the

Regional Trial Court.
The court grants the Motion to Dismiss.
Explain the remedies or procedure to be resorted to or to be pursued by plaintiff to have the

order of dismissal reversed and corrected finally.
Answer:
(a) The remedy is to appeal to the court of Appeals from the order of dismissal within fifteen days
from notice thereof by filing a notice of appeal with the Regional Trial Court and serving a copy
thereof on the adverse party.
However, if only a question of law is involved, the remedy is to file a petition for review on
certiorari with the Supreme Court within fifteen days from notice of the order or the denial of his
motion for reconsideration and serving a copy thereof on the Regional Trial Court and on the
adverse party. (Laxamana vs. CA, 143 SCRA 643)
d. Remedies of the defendant when the motion is denied
Q: Defendant Xanthe filed a Motion to Dismiss Yogi’s complaint before the

Regional Trial Court.
(b) The court denies the Motion to Dismiss.

A. May Xanthe appeal the denial? Reasons.
B. How and on what ground or grounds may defendant Xanthe bring the denial of his
Motion to Dismiss to the appellate courts? Explain.
Answer:
b) 1) No because the order of denial is merely interlocutory, and only final judgments or orders are
subject to appeal.
2) Defendant X may bring the denial of his Motion to Dismiss to the appellate (superior) courts by
filing a petition for certiorari on the ground of lack or excess of jurisdiction or grave abuse of
discretion. (Newsweek vs. IAC, 142 SCRA 171)
e. When grounds pleaded as affirmative defenses
xxxxxx
A, who is engaged in tile installation business, was sued by EE Industries for
breach of contract for installing different marble tiles iri its offices as provided in their
contract. Without filing any motion to dismiss, A filed its Answer with Counterclaim
theorizing that EE Industries has no legal capacity to sue because it is not a duly registered
corporation. By way of counterclaim, A asked for moral and actual damages as her business
depleted as a result of the withdrawal and cancellation by her clients of their contracts due to
the filing of the case. The case was dismissed after the trial court found that EE
Industries is not a registered corporation and therefore has no legal capacity to sue.
However, it set a date for the reception of evidence on A’s counterclaim. EE Industries
opposed on the ground .that the counterclaim could no longer be prosecuted, in view bf the
dismissal of the main case. Is the stand of EE Industries sustainable? Explain. (2%)
SUGGESTED ANSWER:
xxxxxx
No, because if no motion to dismiss has been filed, any of the grounds for dismissal
provided in the Rules may be pleaded as an affirmative defense in the answer which may include a
counterclaim. This is what A did by filing an Answer alleging the lack of legal capacity of EE
Industries to sue because it is not a duly registered corporation with a counterclaim for damages.
The dismissal of the complaint on this ground is without prejudice to the prosecution of the
counterclaim in the same action because it is a compulsory counterclaim. (Sec. 6 of Rule 16.)
Q: Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City. Aside
from alleging payment as a defense, Ramon in his answer set up counterclaims for P100,000
as damages and P30,000 as attorney’s fees as a result of the baseless filing of the complaint, as
well as for P250,000 as the balance of the purchase price of the 30 units of air conditioners he
sold to Fe.
xxx
Suppose Ramon’s counterclaim for the unpaid balance is P310,000, what will happen to his
counterclaims if the court, dismisses the complaint after
holding a preliminary hearing on Ramon’s affirmative defenses? (3%) (2008
The dismissal of the complaint is without prejudice to the right of the defendant
(Ramon) to prosecute his counterclaim in the same or in a separate action [Sec.
6, Rule 16, last par.; Pingav. Heirs of Santiago, 494 SCRA 393 [2006]).
Under the same premise as paragraph (b) above, suppose that instead of alleging payment as
a defense in his answer, Ramon filed a motion to dismiss on that ground, at the same time
setting up his counterclaims, and the court grants his motion. What will happen to his
counterclaims? (3%)(2008 Bar Question)
SUGGESTED ANSWER:
c) Since Ramon filed only a motion to dismiss, not an answer, the dismissal of the complaint would
also bring about the dismissal of his counterclaims but he can file a separate action for his
permissive counterclaims. The compulsory counterclaims are deemed waived when he filed a
motion to dismiss the complaint instead of answering the same. (Financial Building Corporation v.
Forbes Park Association, Inc., 338 SCRA
346 2000]).
H. Dismissal of actions
X, the designated executor of a will, files a petition for probate of the same. X and his counsel
failed to appear without justifiable cause at the hearing on the presentation of evidence and
the court therefore dismissed, motu proprio, his petition for failure to prosecute. The effect of
the dismissal is: (2012 BAR)
a. not an adjudication upon the merits.
b. the will can no longer be probated. c. it is a dismissal with prejudice.
d. a bar to a subsequent action on the same cause.
1. Dismissal upon notice by plaintiff; two-dismissal rule

A complaint may be dismissed by the plaintiff by filing a notice of dismissal:
a. At anytime after service of the answer. (2012 BAR)
b. At anytime before a motion of summary judgment is filed. c. At the pre-trial.
d. Before the complaint is amended.
Q: Before any answer on motion for summary judgment could be filed by the defendant, the
plaintiff filed notice of dismissal of his complaint. The trial court simply noted the
dismissal. Is the case considered dismissed. (1989 Bar Question)
Answer:
Yes, because the rule merely requires the filing of a notice of dismissal and does not require an
order of the court dismissing the case. (Sec. 1 of Rule 17)
Q: X filed an action for reconveyance against Y. Y forthwith filed his answer and served it on
X. A week later, X filed a motion to withdraw the action since he could not avail the services
of counsel. The court dismissed the complaint based on failure to prosecute. A month after, X
instituted the very same action against Y. Y moved to dismiss the case invoking res judicata.
He alleged that dismissal of the first case had the effect of an adjudication upon the merits
since the court’s Order had no condition that it was without prejudice. The court dismissed
the subsequent case on the ground of res judicata.
Was the trial court correct? Explain. (1996 Bar Question) Answer:
No, because the dismissal of the complaint on motion of X is without prejudice under Sec. 2 of
Rule 17. The Court erred in dismissing the complaint for failure to prosecute for an unreasonable
length of time under Sec. 3 of Rule 17.
Q: Lawrence filed a complaint against Grace to collect a loan of P50,000. Later, because of
their intimate relationship in the past, Lawrence filed a notice of dismissal of his complaint.
Subsequently, the two had a serious misunderstanding so that Lawrence again filed a
complaint against Grace to collect another loan of P100,000. Lawrence and Grace reconciled
after which, the former withdraw his complaint before the latter could file her answer or a
motion for summary judgment. Was the dismissal of the second complaint with or
without prejudice? Explain. (1989 Bar Question)
Answer:
The dismissal of the second complaint is without prejudice because it is based on another claim of
P100,000.00. If the dismissal were based on the same claim of P50,000.00 it would be with
prejudice. (Id.)
Q: Lawrence filed a complaint against Grace to collect a loan of P50,000. Later, because of
their intimate relationship in the past, Lawrence filed a notice of dismissal of his complaint.
Subsequently, the two had a serious misunderstanding so that Lawrence again filed a
complaint against Grace to collect another loan of P100,000. Lawrence and Grace reconciled
after which, the former withdraw his complaint before the latter could file her answer or a
motion for summary judgment. Was the dismissal of the second complaint with or
without prejudice? Explain. (1989 Bar Question)
Answer:
The dismissal of the second complaint is without prejudice because it is based on another claim of
P100,000.00. If the dismissal were based on the same claim of P50,000.00 it would be with
prejudice. (Id.)
2. Dismissal upon motion by plaintiff; effect on existing counterclaim
Q: Antique dealer Mercedes borrowed P1, 000,000 from antique collector Benjamin.
Mercedes issued a postdated check in the same amount to Benjamin to cover the debt.
On the due date of the check, Benjamin deposited it but it was dishonored. As despite
demands, Mercedes failed to make good the check, Benjamin filed in January 2009 a
complaint for collection of sum of money before the RTC of Davao.
Mercedes filed in February 2009 her Answer with Counterclaim, alleging that before the
filing of the case, she and Benjamin had entered into a dacion enpago agreement in which her
vintage P1, 000,000 Rolex watch which was taken by Benjamin for sale on commission was
applied to settle her indebtedness; and that she incurred expenses in defending what she
termed a "frivolous lawsuit.. She accordingly prayed for P50, 000 damages.
A. Benjamin soon after moved for the dismissal of the case. The trial court accordingly
dismissed the complaint. And it also dismissed the Counterclaim.
Mercedes moved for a reconsideration of the dismissal of the Counterclaim. Pass upon
Mercedes' motion. (3%) (2010 Bar Question)
SUGGESTED ANSWER:
Mercedes' Motion for Reconsideration is impressed with merit: the trial court should not have
dismissed her counter-claim despite the dismissal of the Complaint.
Since it was the plaintiff (Benjamin) who moved for the dismissal of his
Complaint, and at a time when the defendant (Mercedes) had already filed her Answer
thereto and with counterclaim, the .dismissal of the Complaint should not carry with it the
dismissal of the counterclaim without the conformity of the defendant- counterclaimant. The
Revised Rules of Court now provides in Rule 17, Sec. 2 there or that "[1]a counterclaim has been
pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismlasa1, the
dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of
the defendant to prosecute his counterclaim x x x.”
I. Pre-trial
1. Concept of pre-trial, Nature and purpose
Q: Is pre-trial mandatory in all trial courts? Explain. (1989 Bar Question) Answer:
Pre-trial is mandatory in all trial courts in civil cases. (Sec. 1 of Rule 30). However, in
criminal cases, pre-trial may be held only when the accused and his counsel agree. (Sec. 1 of Rule
118).
In summary procedure, a preliminary conference is held in both civil and criminal cases. (Sec. 6
and 13)
2. Notice of pre-trial
Q: Ulio filed a complaint in the Municipal Trial Court of Lanuza for the recovery of a sum of
money against Juan. The latter filed his answer to the complaint serving a copy thereof on
Ulio.
After the filing of the answer of Juan, whose duty is it to have the case set for pre- trial?
Why? (5%) (2001 Bar Question)
SUGGESTED ANSWER:
After the filing of the answer of Juan, the plaintiff has the duty to promptly move ex parte that the
case be set for pre-trial. (Sec. 1, Rule 18, 1997 Rules of Civil Procedure). The reason is that it is the
plaintiff who knows when the last pleading has been filed and it is the plaintiff who has the duty to
prosecute.
ALTERNATIVE ANSWER:
In the event the plaintiff files a reply, his duty to move that the case be set for pre-trial arises after
the reply has been served and filed.
3. Appearance of parties; effect of failure to appear
What is the consequence of the unjustified absence of the defendant at the pre- trial? (2011
BAR)
(A) The trial court shall declare him as in default.
(B) The trial court shall immediately render judgment against him.
(C) The trial court shall allow the plaintiff to present evidence ex-parte. (D) The trial court shall
expunge his answer from the record.
Q: Jose, Lito and Luis executed a promissory note in favor of Teresita Comparza which
reads:
“For value received we promise jointly and severally to pay Teresita Comparza the sum of
P300.000.00 on or before 31 December 1994." All three signed the note.
Despite demands after due date no payment was made on the note prompting Teresita to sue
the three promissors. Summonses together with copies of the complaint were served on all of
them but only Lito answered. Upon Teresita’s motion, Jose and Luis were declared in
default.
A. Against whom and upon what basis should the court try the case considering that only
Lito of the three defendants filed an answer and a default order was issued against Jose and
Luis? Discuss fully.
B. Considering that a defaulted defendant cannot participate in the trial, can Lito present
Luis on the witness stand to testify after the latter was defaulted? Discuss fully.
C. Suppose Lito dies and the case is dismissed as against him, what is the effect of his answer
as far as his solidary co-debtors Jose and Luis are concerned? Discuss fully. (1995 Bar
Question)
Answer:
A. Since the complaint states a common cause of action against the three defendants, the court shall
try the case against all upon the answer filed by Lito and render judgment upon the evidence
presented. (Sec. 4, Rule 18) In this case, the answer of Lito inures to the benefit of Jose and Luis,
unless the defense of Lito is personal to him alone.
B. There is no provision in the Rules disqualifying parties declared in default from taking the
witness stand for non-disqualified parties. A party declared in default loses his standing in court,
but this must be understood to mean only the forfeiture of one’s rights as a party litigant. He is not
disqualified to be a witness or a deponent in a case. (Cavili vs. Florendo, 154 SCRA 610)
C. If Lito dies after he has presented evidence, the same inures to the benefit of Jose and Luis. But
if Lito dies before he has presented evidence, Jose and Luis cannot present such evidence.
Answer:
2. A plaintiff who fails to prosecute may be declared non-suited or as in default. (Sec. 3 of Rule 17)
4. Distinction between pre-trial in civil case and pre-trial in criminal case
Q: Give three distinctions between a pre-trial in a criminal case and a pre-trial in a civil case.
(1997 Bar Question)
Answer:
Three distinctions between a pre-trial in a criminal case and a pre-trial in a civil case are as follows:
1. The pre-trial in a criminal case is conducted only “where the accused and counsel agree" (Rule
118, Sec. 1): while the pre-trial in a civil case is mandatory. (Sec. 1 of former Rule 20; Sec. 1 of
new Rule 18).
2. The pre-trial in a criminal case does not consider the possibility of a compromise, which is one
important aspect of the pre-trial in a civil case. (Sec. 1 of former Rule 20; Sec. 2 of new Rule 18).
3. In a criminal case, a pre-trial agreement is required to be reduced to writing and signed by the
accused and his counsel (See: Rule 118, Sec. 4); while in a civil case, the agreement may be
contained in the pre-trial order. (Sec. 4 of former Rule 20; See 7 of new Rule 78).
5. Alternative Dispute Resolution (ADR) (Special Rules of Court on ADR (A.M. No.
07-11-08-SC))
Q: Water Builders, a construction company based in Makati City, entered into a construction
agreement with Super Powers, Inc., an energy company based in Manila, for the construction
of a mini hydroelectric plant. Water Builders failed to complete the project within the
stipulated duration. Super Powers cancelled the contract. Water Builders filed a request for
arbitration with the Construction Industry Arbitration Commission (CIAC). After due
proceedings, CIAC rendered judgment in favor of Super Powers, Inc. ordering Water
Builders to pay the former P 10 million, the full amount of the down payment paid, and P2
million by way of liquidated damages. Dissatisfied with the CIAC's judgment, Water
Builders, pursuant to the Special Rules of Court on Alternative Dispute Resolution (ADR
Rules) filed with the RTC of Pasay City a petition to vacate the arbitral award. Super
Powers, Inc., in its opposition, moved to dismiss the petition, invoking the ADR Rules, on the
ground of improper venue as neither of the parties were doing business in Pasay City. Should
Water Builders' petition be dismissed? (2015)
A: YES, the petition should be dismissed on the ground of improper venue. Under the Special
Rules of Court on Alternative Dispute Resolution (ADR), the petition shall be filed with the
Regional Trial Court having jurisdiction over the place where one of the parties is doing business,
where any of the parties reside or where the arbitration proceedings were conducted (Rule 11.3,
Special Rules of Court on Alternative Dispute Resolution, A.M. No. 07-11-08-SC); hence, the
venue of the petition to vacate the arbitral award of Water Builders is improperly laid.
Which among the following is not subject to mediation for judicial dispute resolution?
(2013 BAR)
(A) The civil aspect of B.P. Blg. 22 cases.
(B) The civil aspect of theft penalized under Article 308 of the Revised Penal
Code.
(C) The civil aspect of robbery.
(D) Cases cognizable by the Lupong Tagapamayapa under the Katarungang
Pambarangay Law.
(E) None of the above.
Q: Discuss the three (3) Stages of Court Diversion in connection with Alternative
Dispute Resolution. (2012 BAR)
A: The three stages of diversion are Court-Annexed Mediation (CAM), Judicial Dispute Resolution
(JDR), and Appeals Court Mediation (ACM). During CAM, the judge refers the parties to the
Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited
mediators. If CAM fails, the JDR is undertaken by the JDR judge, acting as a mediator-conciliator-
early neutral evaluator. The third case is during appeal, where covered cases are referred to ACM.
Q: Upon termination of the pre-trial, the judge dictated the pretrial order in the presence of
the parties and their counsel, reciting what had transpired and defining three (3) issues to be
tried.
xxx
Suppose trial had already commenced and after the plaintiffs second witness had
testified, the defendant’s counsel moves for the amendment of
the pre-trial order to include a fifth (5th) triable issue vital to his client’s
defense. Should the motion be granted over the objection of plaintiffs counsel? Reasons.
SUGGESTED ANSWER:
The motion may be denied since trial had already commenced and two witnesses for the
plaintiff had already testified. Courts are required to issue pre-trial Order after the pre-trial
conference has been terminated and before trial begins, precisely because the reason for such
Order is to define the course of the action during the trial. Where trial had already commenced,
more so the adverse party had already presented witnesses, to allow an amendment would be unfair
to the party who had already presented his witnesses. The amendment would simply render
nugatory the reason for or purpose of the pre-trial Order.
Sec.7 of Rule 18 on pre-trial in civil actions is explicit in allowing a modification of the pre-trial
Order “before” trial begins to prevent manifest injustice.
Q: Mayor TM was charged of malversation through falsification of official documents.

Assisted by Atty. OP as counsel de parte during pre-trial, he signed together with
Ombudsman Prosecutor TG a “Joint Stipulation of Facts and Documents." which was
presented to the Sandiganbayan. Before the court could issue a pre-trial order but after
some delay caused by Atty. OP, he was substituted by Atty. QR as defense counsel. Atty.
QR forthwith filed a motion to withdraw the “Joint Stipulation," alleging that it is
prejudicial to the accused because it contains, inter alia, the statement that the “Defense
admitted all the documentary evidence of the Prosecution," thus leaving the accused little or
no room to defend himself, and violating his right against self-incrimination.
Should the court grant or deny QR’s motion? Reason. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
The court should deny QR’s motion. If in the pre-trial agreement signed by the accused and his
counsel, the accused admits the documentary evidence of the prosecution, it does not violate his
right against self-incrimination. His lawyer cannot file a motion to withdraw. A pre-trial order is
not needed. (Bayas v. Sandiganbayan, 391
SCRA 415[2002D. The admission of such documentary evidence is allowed by the rule. [Sec. 2 of
Rule 118; People v. Hernandez, 260 SCRA 25 [1996]).
J. Intervention
1. Requisites for intervention
Q: What are the requisites for an intervention by a non- party in an action pending in court?
SUGGESTED ANSWER:
The requisites for Intervention are:
1. Legal interest in the matter in controversy; or

2. Legal interest In the success of either of the parties; or
3. Legal interest against both; or
4. So situated as to be adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof.
5. Intervention will not unduly delay or prejudice the adjudication of the rights of original parties;
6. Intervenor’s rights may not be fully protected In a separate proceeding.
[Acenas U v. Court of .Appeals, 247 SCRA 773 (19951; Sec. I, Rule 19, 1997 Rules of
Civil Procedure.)
The right to intervene is not absolute. In general, it CANNOT be allowed where

(2011 BAR)
(A) the intervenor has a common interest with any of the parties.
(B) it would enlarge the issues and expand the scope of the remedies.
(C) the intervenor fails to put up a bond for the protection of the other parties. (D) the intervenor
has a stake in the property subject of the suit.
Ranger Motors filed a replevin suit against Bart to recover possession of a car that he
mortgaged to it. Bart disputed the claim. Meantime, the court allowed, with no opposition
from the parties, Midway Repair Shop to intervene with its claim against Bart for unpaid
repair bills. On subsequent motion of Ranger Motors and Bart, the court dismissed the
complaint as well as Midway Repair Shop’s intervention. Did the court act correctly? (2011
BAR)
(A) No, since the dismissal of the intervention bars the right of Bart to file a separate action.
(B) Yes, intervention is merely collateral to the principal action and not an independent
proceeding.
(C) Yes, the right of the intervenor is merely in aid of the right of the original party, which in this
case had ceased to exist.
(D) No, since having been allowed to intervene, the intervenor became a party to the action,
entitled to have the issue it raised tried and decided.
2. Remedy for the denial of motion to intervene
Q: Half-brothers Roscoe and Salvio inherited from their father a vast tract of unregistered
land. Roscoe succeeded in gaining possession of the parcel of land in its entirety and
transferring the tax declaration thereon in his name. Roscoe sold the northern half to Bono,
Salvio’s cousin. Upon learning of the sale, Salvio asked Roscoe to convey the southern half to
him. Roscoe refused as he even sold one- third of the southern half along the West to Carlo.
Thereupon, Salvio filed an action for the reconveyance of the southern half against Roscoe
only. Carlo was not impleaded. After filing his answer, Roscoe sold the middle third of the
southern half to Nina. Salvio did not amend the complaint to implead Nina.
After trial, the court rendered judgment ordering Roscoe to reconvey the entire southern half
to Salvio. The judgment became final and executory. A writ of execution having been issued,
the Sheriff required Roscoe, Carlo and Nina to vacate the southern half and yield possession
thereof to Salvio as the prevailing party. Carlo and Nina refused, contending that they
are not bound by the judgment as they are not parties to the case. Is the contention
tenable? Explain fully. (4%)(2008 Bar Question)
SUGGESTED ANSWER:
Yes, in case of Transfer of interest pending litigation, the action may be continued by or
against the original party unless the court, upon motion, directs a person to be substituted in the
action or joined with the original party (Sec. 19, Rule 3, Rules of Court). The owners of property
over which reconveyance is asserted are indispensable parties and must be joined in the action.
Accordingly, the contention of Carlo who is such party to the action filed by Salvio, is tenable. He
is not bound by the judgment because he became a co-owner of the land before the case was filed
and yet he has not been included as a party thereto [Matuguina Integrated Word Products, Inc. v.
Court of Appeals, 263 SCRA 490[1996]; Ma. Valentina Santana-Cruz v. Court of Appeals, et. ah,
361 SCRA 520 [2001]).
Nina, however is a successor-in-interest of Roscoe and privy to the case. Hence, she is bound by
the judgment as against Roscoe although she is not party to the case (Sec. 19, Rule 3; Cabresos v.
Tero, 166 SCRA 400 [1988]). A judgment is conclusive between the parties and their successors-
in-interest by title subsequent to the case (Sec. 47, Rule 39, Rules of Court).
[Parenthetically, it is worth mentioning that the sale of the northern one-half of the vast tract of
land owned in common by Roscoe and Salvio, is void as to the northern half but valid as to the
presumed one-half undivided interest of Roscoe. The existence of the co- ownership must first be
determined to exist before the right of reconveyance on the basis of a constructive trust may
prosper. However, in the problem the judgment
has become final and executory, so the problem is centered on the remedial law aspect].
K. Subpoena
1. Subpoena duces tecum
Q: In an admiralty case filed by A against Y Shipping Lines (whose principal offices are in
Manila) in the Regional Trial Court, Davao City, the court issued a subpoena duces tecum
directing Y, the president of the shipping company, to appear and testify at the trial and to
bring with him several documents.
A. On what valid ground can Y refuse to comply with the subpoena duces tecum?
B. How can A take the testimony of Y and present the documents as exhibits other than
through the subpoena from the Regional Trial Court? (1997 Bar
Question)
Answer:
A. Y can refuse to comply with the subpoena duces tecum on the ground that he resides more than
50 (now 100) kilometers from the place where he is to testify. (Sec. 9 of former Rule 23; Sec. 10 of
new Rule 21).
B. A can take the testimony of Y and present the documents as exhibits by taking his deposition
through oral examination or written interrogatories. (Rule 24; new Rule 23) He may also file a
motion for the production or inspection of documents. (Rule 27).
Alternative Answer:
(a) The witness can also refuse to comply with the subpoena duces tecum on the ground that the
documents are not relevant and there was no tender of fees for one day's attendance and the
kilometrage allowed by the rules.
2. Subpoena ad testificandum
xxx
The viatory right of a witness served with a subpoena ad testificandum refers to his right not
to comply with the subpoena. (2009 Bar Question)
SUGGESTED ANSWER:
FALSE. The viatory right of a witness, embodied in Sec. 10, Rule 21 of the Rules of Civil
Procedure, refers to his right not to be compelled to attend upon a subpoena, by
reason of the distance from the residence of the witness to the place where he is to testify. It is
available only in civil cases (People v. Montejo, 21 SCRA 722[1965]).
3. Quashing of subpoena
Q: On August 15,2008, Edgardo committed estafa against Petronilo in the amount of P3

Million. Petronilo brought his complaint to the National Bureau of Investigation, which
found that Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the
second on August 16, 2008; and that both visits concerned the swindling of Petronilo. During
the trial of Edgardo, the RTC issued a subpoena ad testificandum to Edgardo’s lawyer for
him to testify on the conversations during their first and second meetings. May the subpoena
be quashed on the ground of privileged communication? Explain fully. (4%)
SUGGESTED ANSWER:
No, The subpoena may not be simply quashed on the allegation that the testimony to be
elicited constitutes privileged communication. It may be noted that the accused committed the
crime of swindling on August 15, 2008, whereas he first visited his lawyer on August 14, 2008 or
before he committed the swindling. Clearly the conversations the accused had with his lawyer
during such first visit, before he committed the swindling cannot be protected by the privilege
between attorney and client because the crime had not been committed yet and it is no part of a
lawyer’s professional duty to assist or aid in the commission of a crime; hence not in the course of
professional employment.
The second visit by accused Edgardo to his lawyer on the next day (August 16,
2008) after the swindling was committed may also suffer from the same infirmity as the
conversations had during their first meeting inasmuch as there could not be a complaint
made immediately after the estafa was committed. The privilege covering a lawyer-
client relation under Sec. 24, (par(b), Rule 130, may not be invoked, as it is not a ground for
quashal of a subpoena ad testificandum under Section 4, Rule 21 of the Rules of Court.
Although the subpoena ad testificandum may not be quashed the privilege covers
conversations “with a view to professional employment." It can be invoked at the trial but not to
quash the subpoena.
L. Modes of Discovery
As a mode of discovery, the best way to obtain an admission from any party regarding the
genuineness of any material and relevant document is through a: (2012 BAR)
a. motion for production of documents. b. written interrogatories.
c. request for admission under Rule 26.
d. request for subpoena duces tecum.
An objection to any interrogatories may be presented within_ days after service thereof:
(2012 BAR)
a. 15;
b. 10;
c. 5;
d. 20.
Q: Describe briefly at least five (5) modes of discovery under the Rules of Court. (5%) (2000
Bar Question)
SUGGESTED ANSWER:
Five modes of discovery under the Rules of Court are:
1. Deposition. 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,
the testimony of any person, whether a party or not, may be taken, at the instance of any party, by
deposition upon oral examination or written interrogatories, (Sec. 1, Rule 23, 1997 Rules of Civil
Procedure.)
2. Interrogatories to parties. Under the same conditions specified in section 1 of Rule

23, any party shall file and serve upon any adverse party written interrogatories regarding
material and relevant facts to be answered by the party served. (Sec. 1, Rule
25, 1997 Rules of Civil Procedure.)
3. Admission by adverse party. At any time after issues have been joined, a party may file and
serve upon any other party a written request for the admission by the latter of the genuineness of
any material and relevant document or of the truth of any material and relevant matter of fact. (Sec.
1, Rule 26, 1997 Rules of Civil Procedure.)
4. Production or inspection of documents or things. Upon motion of any party showing good cause
therefor, a court may order any party to produce and permit the inspection and copying or
photographing of any designated documents, etc. or order any party to permit entry upon
designated land or property for inspecting, measuring, surveying, or photographing the property or
any designated relevant object or operation thereon. (Sec. 1, Rule 27, 1997 Rules of Civil
Procedure.)
5. Physical and mental examination of persons. In an action in which the mental or physical
condition of a party is in controversy, the court in which the action is pending may in its discretion
order him to submit to a physical or mental examination by a physician. (Sec. 1, Rule 28, 1997
Rules of Civil Procedure.)
Q: Ernie filed a petition for guardianship over the person and properties of his father,
Ernesto. Upon receipt of the notice of hearing, Ernesto filed an opposition
to the petition. Ernie, before the hearing of the petition, filed a motion to order Ernesto to
submit himself for mental and physical examination which the court granted.
After Ernie's lawyer completed the presentation of evidence in support of the petition and the
court's ruling on the formal offer of evidence, Ernesto's lawyer filed a demurrer to evidence.
Ernie's lawyer objected on the ground that a demurrer to evidence is not proper in a special
proceeding. (2015)
If Ernesto defies the court's order directing him to submit to physical and mental
examinations, can the court order his arrest?
A: If the order for the conduct of physical and mental examination is issued as a mode of discovery
and Ernesto defies the said order, the court cannot validly order his arrest (Sec. 3[d], Rule 29).
1. Depositions pending action; depositions before action or pending appeal
The deposition of a witness, whether or not a party, may be used for any purpose if the Court
finds the following circumstances are attendant, EXCEPT: (2012 BAR)
a. when the witness is dead.
b. when the witness is incarcerated.
c. when the witness is outside the Philippines and absence is procured by the party offering
deposition.
d. when the witness is 89 years old and bed-ridden.
Q: In an admiralty case filed by A against Y Shipping Lines (whose principal offices are in
Manila) in the Regional Trial Court, Davao City, the court issued a subpoena duces tecum
directing Y, the president of the shipping company, to appear and testify at the trial and to
bring with him several documents.
A. On what valid ground can Y refuse to comply with the subpoena duces tecum?
B. How can A take the testimony of Y and present the documents as exhibits other than
through the subpoena from the Regional Trial Court? (1997 Bar Question)
Answer:
A. Y can refuse to comply with the subpoena duces tecum on the ground that he resides more than
50 (now 100) kilometers from the place where he is to testify. (Sec. 9 of former Rule 23; Sec. 10 of
new Rule 21).
B. A can take the testimony of Y and present the documents as exhibits by taking his deposition
through oral examination or written interrogatories. (Rule 24; new
Rule 23) He may also file a motion for the production or inspection of documents. (Rule 27).
Alternative Answer:
b. The witness can also refuse to comply with the subpoena duces tecum on the ground that the
documents are not relevant and there was no tender of fees for one day's attendance and the
kilometrage allowed by the rules.
2. Production or inspection of documents or things
Q: Continental Chemical Corporation (CCC) filed a complaint for a sum of money against
Barstow Trading Corporation (BTC) for the latter’s failure to pay for its purchases of
industrial chemicals. In its answer, BTC contended that it refused to pay because CCC
misrepresented that the products it sold belonged to a new line, when in fact they were
identical with CCC’s existing products. To substantiate its defense, BTC filed a motion to
compel CCC to give a detailed list of the products’ ingredients and chemical components,
relying on the right to avail of the modes of discovery allowed under Rule 27. CCC objected,
invoking confidentiality of the information sought by BTC.
Resolve BTC’s motion with reasons. (3%) (209 Bar Question) SUGGESTED ANSWER:
I will deny the motion. The ingredients and chemical components of CCC’s products are trade
secrets within the contemplation of the law. Trade secrets may not be the subject of compulsory
disclosure by reason of their confidential and privileged character. Otherwise, CCC would
eventually be exposed to unwarranted business competition with others who may imitate and
market the same kinds of products in violation of CCC’s proprietary rights. Being privileged, the
detailed list of ingredients and chemical components may not be the subject of mode of discovery
under Rule 27, Section 1 which expressly makes privileged information an exception from its
coverage (AirPhilippines Corporation v. Pennswell, Inc., 540 SCRA 215 [2007]).
xxx
The plaintiff sued the defendant in the RTC to collect on a promissory note, the terms of
which were stated in the complaint and a photocopy attached to the complaint as an annex.
Before answering, the defendant filed a motion for an order directing the plaintiff to produce
the original of the note so that the defendant could inspect it and verify his signature and the
handwritten entries of the dates and amounts.
A. Should the judge grant the defendant's motion for production and inspection of the
original of the promissory note? Why? (2%)
B. Assuming that an order for production and inspection was issued but the plaintiff failed
to comply with it, how should the defendant plead to the alleged execution of the note? (3%)
SUGGESTED ANSWER:
xxx
A. Yes, because upon motion of any party showing good cause, the court in which the action is
pending may order any party to produce and permit the inspection of designated documents. (Rule
27). The defendant has the right to inspect and verify the original of the promissory note so that he
could intelligently prepare his answer.
B. The defendant is not required to deny under oath the genuineness and due
execution of the promissory note, because of the non-compliance by the plaintiff with the order for
production and inspection of the original thereof. (Rule 8, sec. 8).
ALTERNATIVE ANSWER:
B. (2) The defendant may file a motion to dismiss the complaint because of the refusal of the
plaintiff to obey the order of the court for the production and inspection of the promissory note.
[Rule 29 Sec. 3(c)]
3. Consequences of refusal to comply with modes of discovery
Q: An heir/oppositor in a probate proceeding filed a motion to remove the administrator on

the grounds of neglect of duties as administrator and absence from the country. On his part
the heir/oppositor served written interrogatories to the administrator preparatory to
presenting the latter as a witness. The administrator objected, insisting that the modes of
discovery apply only to ordinary civil actions, not special proceedings. Rule on the matter.
SUGGESTED ANSWER:
The administrator’s contention that the modes of discovery apply only to ordinary civil actions and
not to special proceedings is not correct. Section 2, Rule 72 of the Rules of Court provides that: “In
the absence of special provisions, the rules provided for in ordinary civil actions shall be, as far as
practicable, applicable in special proceedings.” There is no provision to the contrary that would
preclude the application of the modes of discovery, specifically Interrogatories to Parties under
Rule 25 of the Rules, to probate proceedings.
amounting to P167,899. He attached to the complaint the Bill of Lading.
xxxxxx
On July 21. 2009, B Lines served on A a "Notice to Take Deposition,” setting the
deposition on July 29, 2009 at 8:30 a.m. at the office of its counsel in Makati. A failed to
appear at the deposition-taking, despite notice. As counsel for B Lines, how would you
proceed? (3%) (2010 Bar Question)
SUGGESTED ANSWER:
As counsel for B Lines (which gave notice to take the deposition), I shall proceed as follows:
1. Find out why A failed to appear at the deposition taking, despite notice;
2. If failure was for valid reason, then set another date for taking the deposition;
3. If failure to appear at deposition taking was without valid reason, then I would me a
motion/application in the court where the action is pending, for an, order to
show cause for his refusal to submit to the discovery; and
4. For the court to issue appropriate Order provided under Rule 29 of the Rules, for noncompliance
with the show-cause order, aside from contempt of court.
M. Trial
1. Order of trial; reversal of order
Q: What is reverse trial and when may it be resorted to? Explain briefly. (5%) (2007 Bar
Question)
SUGGESTED ANSWER:
A reverse trial is one where the defendant or the accused present evidence ahead of the plaintiff or
prosecution and the latter is to present evidence by way of rebuttal to the former’s evidence. This
kind of trial may take place in a civil case when the defendant’s Answer pleads new matters by
way of affirmative defense, to defeat or evade liability for plaintiffs claim which is not denied but
controverted.
In a criminal case, a reverse trial may take place when the accused made known to the trial court,
on arraignment, that he is to adduce affirmative defense of a justifying or exempting circumstance
and thus impliedly admitting the act imputed to him. The trial court may then require the accused
to present evidence first, proving the requisites of
the justifying or exempting circumstance he is invoking, and the prosecution to present rebuttal
evidence controverting the same.
N. Demurrer to evidence
1. Waiver of right to present evidence
Q: Carlos filed a complaint against Pedro in the Regional Trial Court of Ozamis City for the
recovery of the ownership of a car. Pedro filed his answer within the reglementary period.
After the pre-trial and actual trial, and after Carlos has completed the presentation of his
evidence, Pedro moved for the dismissal of the complaint on the ground that under the facts
proven and the law applicable to the case, Carlos is not entitled to the ownership of the car.
The Regional Trial Court granted the motion for dismissal. Carlos appealed the order of
dismissal and the appellate court reversed the order of the trial court. Thereafter, Pedro filed
a motion with the Regional Trial Court asking the latter to allow him to present his evidence.
Carlos objected to the presentation of evidence by Pedro.
Should the Regional Trial Court grant Pedro's motion to present his evidence? Why (5%)
(2001 Bar Question)
SUGGESTED ANSWER:
No. Pedro's motion should be denied. He can no longer present evidence. The Rules provide that if
the motion for dismissal is granted by the trial court but on appeal the order of dismissal is
reversed, he shall be deemed to have waived the right to present evidence. (Sec. 1 of Rule 33, 1997
Rules of Civil Procedure)
ALTERNATIVE ANSWER:
No, because when the appellate court reversed the order of the trial court it should have rendered
judgment in favor of Carlos. (Quebral v. Court of Appeals, 252
SCRA 353, 1996)
2. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case
Q: Ernie filed a petition for guardianship over the person and properties of his father,
Ernesto. Upon receipt of the notice of hearing, Ernesto filed an opposition to the petition.
Ernie, before the hearing of the petition, filed a motion to order Ernesto to submit himself for
mental and physical examination which the court granted.
After Ernie's lawyer completed the presentation of evidence in support of the petition and the
court's ruling on the formal offer of evidence, Ernesto's lawyer filed a demurrer to
evidence. Ernie's lawyer objected on the ground that a
demurrer to evidence is not proper in a special proceeding. Was Ernie's counsel's objection
proper? (2015)
A: NO. The Rule on demurrer to evidence is applicable in Special Proceedings (Matute v. Court of
Appeals, G.R. No. 26751, January 31, 1969).
Moreover, under Section 2, Rule 72 of the Rules of Court, in the absence of special rules, the rules
provided for in ordinary actions shall be applicable, as far as practicable, to special proceedings.
Q: AA, a twelve-year-old girl, while walking alone met BB, a teenage boy who befriended her.
Later, BB brought AA to a nearby shanty where he raped her. The Information for rape filed
against BB states:
"On or about October 30, 2015, in the City of S.P. and within the jurisdiction of this
Honorable Court, the accused, a minor, fifteen (15) years old with lewd design and by means
of force, violence and intimidation, did then and there, willfully, unlawfully and feloniously
had sexual intercourse with AA, a minor, twelve (12) years old against the latter's will and
consent."
At the trial, the prosecutor called to the witness stand AA as his first witness and manifested
that he be allowed to ask leading questions in conducting his direct examination pursuant to
the Rule on the Examination of a Child Witness. BB's counsel objected on the ground that
the prosecutor has not conducted a competency examination on the witness, a requirement
before the rule cited can be applied in the case.
xxx
After the prosecution had rested its case, BB' s counsel filed with leave a demurrer to
evidence, seeking the dismissal of the case on the ground that the prosecutor failed to present
any evidence on BB' s minority as alleged in the Information. Should the court grant the
demurrer? (2015)
A: NO, the court should not grant the demurrer. While it was alleged in the information that BB
was a minor at the time of the commission of the offense, the failure of the prosecutor to present
evidence to prove his minority is not a basis for the granting of the demurrer, because minority of
the accused is not an element of the crime of rape.
Be that as it may, the Court should not consider minority in rendering the decision. After all, the
failure of the prosecutor to prove the minority of AA may only affect the imposable
penalty but may not absolve him from criminal liability.
Q: Distinguish the effects of the filing of a demurrer to the evidence in a criminal case and its
filing in a civil case. (5%) (2007 Bar Question)
SUGGESTED ANSWER:
The following are the distinctions in effects of demurrer to the evidence in criminal cases from that
in civil cases:
1. In criminal cases, demurrer to the evidence requires prior leave of court, otherwise the accused
would lose his right to present defense evidence if filed and denied; in civil cases, no leave of court
is required for filing such demurrer.
2. In criminal cases, when such demurrer is granted, the dismissal of the case is not appealable
inasmuch as the dismissal would amount to an acquittal, unless made by a court acting without or
in excess of jurisdiction; in civil cases, when such demurrer is granted, the dismissal of the case can
be appealed by the plaintiff.
3. In criminal cases, the accused loses his right to present his defense-evidence in the trial court
when he filed the demurrer without prior leave of court; while in civil cases, the defendant loses his
right to present his defense-evidence only if the plaintiff appealed such dismissal and the case is
before the appellate court already since the case would be decided only on the basis of plaintiffs
evidence on record.
Q: Compare the effects of a denial of demurrer to evidence in a civil case with those of a
denial of demurrer to evidence in a criminal case. (2003 Bar Question)
SUGGESTED ANSWER:
In a civil case, the defendant has the right to file a demurrer to evidence without leave of court. If
his demurrer is denied, he has the right to present evidence. If his demurrer is granted and on
appeal by the plaintiff, the appellate court reverses the order and renders judgment for the plaintiff,
the defendant loses his right to present evidence. (Rule 33).
In a criminal case, the accused has to obtain leave of court to file a demurrer to evidence. If he
obtains leave of court and his demurrer to evidence is denied, he has the right to present evidence
in his defense. If his demurrer to evidence is granted, he is acquitted and the prosecution cannot
appeal.
If the accused does not obtain leave of court and his demurrer to evidence is denied, he waives his
right to present evidence and the case is decided on the basis of the evidence for the prosecution.
The court may also dismiss the action on the ground of insufficiency of the evidence on its own
initiative after giving the prosecution the opportunity to be heard. (Sec. 23 of Rule 119)
A. After the prosecution rested its case in a criminal action for rape, the accused filed a
demurrer to the evidence.
(a) If the court denies said motion, may the accused adduce evidence in his defense?
Answer:
A. (a) If the accused had obtained prior leave of court to file a demurrer to the evidence, he may
adduce evidence in his defense upon denial of his motion for dismissal.
However, if he had not obtained prior leave of court, he waives the right to present evidence and
submits the case for judgment on the basis of the evidence for the prosecution. (Sec. 15 of Rule 19
as amended)
(b) Is the rule on demurrer to evidence the same in civil actions? Answer:
(b) No. In civil cases, the defendant has the right to adduce evidence if his motion for dismissal is
denied. However, if the motion is granted and the order of dismissal is reversed on appeal, he loses
his right to present evidence. (Sec. 1 of Rule 35)
B. Magdalena Campos, a married woman and Santiago Mendoza, a married man, were
indicted for adultery in an Information filed by the Prosecutor of Bataan upon a sworn
complaint filed by Mrs. Cynthia Mendoza, wife of Santiago. Both accused filed a motion to
quash alleging that the trial court has not acquired Jurisdiction over the case because no
complaint has been filed by the husband of Magdalena Campos. They cite Section 5, Rule 110
of the Revised Rules of Court which provides, among others, that the crime of adultery "...
shall not be prosecuted except upon a complaint filed by the offended spouse." How would
you resolve the motion to quash?
Answer:
B. Motion to quash granted. The offended spouse who should have filed the sworn complaint for
adultery was the husband of Magdalena Santos, not the wife of Santiago Mendoza. Adultery is
committed by any married woman who shall have sexual intercourse with a man not her husband
and by the man who has carnal knowledge of her knowing her to be married. (Art. 333, RPC)
Another Answer:
Motion to quash denied. The sworn complaint of Mrs. Cynthia Mendoza as the offended spouse is
sufficient compliance with the rule which requires both the guilty parties to be charged, if both are
alive.
Q: AX, a Makati-bound paying passenger of PBU, a public utility bus, died instantly
on board the bus on account of the fatal head wounds he sustained as a result of the strong
impact of the collision between the bus and a dump truck that happened while the bus was
still travelling on EDSA towards Makati. The foregoing facts, among others, were duly
established on evidence-in-chief by the plaintiff TY, sole heir of AX, in TTs action against the
subject common carrier for breach of contract of carriage. After TY had rested his case, the
common carrier filed a demurrer to evidence, contending that plaintiff’s evidence is
insufficient because it did not show (1) that defendant was negligent and (2) that such
negligence was the proximate cause of the collision.
Should the court grant or deny defendant’s demurrer to evidence? Reason briefly.
SUGGESTED ANSWER:
No. The court should not grant defendant’s demurrer to evidence because the case is for breach of
contract of carriage. Proof that the defendant was negligent and that such negligence was the
proximate cause of the collision is not required. (Articles
1170 and 2201, Civil Code; (Mendoza vs. Phil. Airlines, Inc., 90 Phil. 836 [1952]); Batangas
Transportation Co. v. Caguimbal, 22 SCRA 171 [1968]; Abeto v. PAL, 115
SCRA 489 [1982]; Aboitiz v. Court of Appeals, 129 SCRA 95 [1984]).
Q: Charged with murder, Jorge Dumatol filed a demurrer to the evidence after the
prosecution rested on the ground that there is no evidence of the corpus delicti. Several
witnesses testified that the accused shot the victim and threw the body into the ocean.
Notwithstanding a diligent search, the body was not found. Evidence was introduced to the
effect that the waters where the body was thrown is shark-infested.
Is the demurrer tenable? Explain your answer. (1990 Bar Question) Answer:
No, because the testimony of several witnesses that the accused shot the victim and. threw his body
into the ocean which was shark-infested and that despite diligent search the body was not found, is
sufficient evidence of the corpus delicti. In murder, the corpus delicti is the fact of death, whether
or not feloniously caused. It does not refer to the body of the murdered person. (People v.
Taruc, 16 SCRA 834; People v. Fontanosa, 20 SCRA 249)
O. Judgments and Final Orders
Q: An order of the court requiring a retroactive re-dating of an order, judgment or

document filing be entered or recorded in a judgment is: (2014)
(A) pro hac vice
(B) non pro tunc
(C) confession relicta verification
(D) nolle prosequi
A: (B) non pro tunc. The object of a judgment nunc pro tunc is not the rendering of a new
judgment and the ascertainment and determination of new rights, but is one placing in proper form
on the record, the judgment that had been previously rendered, to make it speak the truth, so as to
make it show what the judicial action really was, not to correct judicial errors, such as to render a
judgment which the court ought to have rendered, in place of the one it did erroneously render, nor
to supply non-action by the court, however erroneous the judgment may have been (Filipinas Faroil
Processing v. Dejapa, G.R. No. 167332, February 7, 2011).
A judgment "non pro tunc" is one which: (2012 BAR)

a. dismisses a case without prejudice to it being re-filed.
b. clarifies an ambiguous judgment or a judgment which is difficult to comply with.
c. one intended to enter into the record the acts which already have been done, but which do not
appear in the records.
d. is a memorandum decision.
Q: What is the difference between a judgment and an opinion of the court? 2.5% (2006 Bar
Question)
SUGGESTED ANSWER:
The judgment or fallo is the final disposition of the Court which is reflected in the dispositive
portion of the decision, while the opinion of the court is contained in the body of the decision that
serves as a guide or enlightenment to determine the ratio decidendi of the decision.
1. Judgment without trial
Q: Can civil and criminal cases be adjudicated without trial? Explain? (1996 Bar
Question) Answer:
Civil cases maybe adjudicated without trial, such as in the following rules:
a) Summary Judgment.
b) Judgment on the Pleadings.
c) Summary procedure.
d) Sec. 3 of Rule 17.
Criminal cases as a rule may not be adjudicated without trial. Some exceptions are the following:
a) Plea of guilty.
b) Motion to quash on the ground of double jeopardy or extinction of criminal action or
liability.
c) Motion to dismiss on the ground of violation of the right to a speedy trial.
2. Judgment on the pleadings
Q: Plaintiff filed a complaint denominated as accion publiciana, against defendant.

In his answer, defendant alleged that he had no interest over the land in question, except as
lessee of Z. Plaintiff subsequently filed an affidavit of Z, the lessor of defendant, stating that
Z had sold to plaintiff all his rights and interests in the property as shown by a deed of
transfer attached to the affidavit. Thus, plaintiff may ask the court to render: (2014)
(A) summary judgment
(B) judgment on the pleadings
(C) partial judgment
(D) judgment by default
A: (B) judgment on the pleadings. When the answer fails to tender an issue, that is, if it does not
deny the material allegations in the complaint or admits said material allegations of the adverse
party’s pleadings by admitting the truthfulness thereof and/or omitting to deal with them at all, a
judgment on the pleadings is appropriate (Eugenio Basbas v. Beata Sayson, G.R. No. 172660,
August 24, 2011).
Alternative Answer: (A) summary judgement. A summary judgment is proper provided that the
issue raised is not genuine. A “genuine issue” means an issue of fact which calls for the
presentation of evidence, as disctinguised from an issue which is fictitious or contrived or which
does not constitute a genuine issue for trial (Eugenio Basbas v. Beata Sayson, G.R. No. 172660,
August 24, 2011).
Q: Plaintiff sued defendant for collection of P 1 million based on the latter's promissory note.
The complaint alleges, among others:
1. Defendant borrowed lil 1 million from plaintiff as evidenced by a duly executed

promissory note;
2. The promissory note reads:
"Makati, Philippines
Dec. 30, 2014
For value received from plaintiff, defendant promises to pay plaintiff Ill million, twelve (12)
months from the above indicated date without necessity of demand.
Signed
Defendant
A copy of the promissory note is attached as Annex “A.” Defendant, in his verified answer,
alleged among others:
1. Defendant specifically denies the allegation in paragraphs 1 and 2 of the complaint, the
truth being defendant did not execute any promissory note in favor of plaintiff, or
2. Defendant has paid the Ill million claimed in the promissory note (Annex "A" of the
Complaint) as evidenced by an "Acknowledgment Receipt" duly
executed by plaintiff on January 30, 2015 in Manila with his spouse signing as
witness.
A copy of the "Acknowledgment Receipt" is attached as Annex "1" hereof.
Plaintiff filed a motion for judgment on the pleadings on the ground that defendant's answer
failed to tender an issue as the allegations therein on his defenses are sham for being
inconsistent; hence, no defense at all. Defendant filed an opposition claiming his answer
tendered an issue. (2015)
a. Is judgment on the pleadings proper?
A: NO, the judgment on the pleadings is not proper. Judgment on the pleading is proper only when
the answer fails to tender an issue, or otherwise admits the material allegations of the adverse
party’s pleading (Sec. 1, Rule 34).
When it appears, however, that not all the material allegations of the complaint were admitted in
the answer, because some of them were either denied or disputed, and the defendant has set up
certain special defenses which, if proven, would have the effect of nullifying plaintiff’s main cause
of action, judgment on the pleadings cannot be rendered (Philippine National bank v. Aznar, G.R.
No. 17105, May 30, 2011).
Clearly, since the defendant’s verified Answer specifically denied the execution of the promissory
note, or raised the affirmative of payment, judgment on the pleading is not proper.
Q: Defendant filed a motion for summary judgment on the ground that there are no longer
any triable genuine issues of facts. Should the court grant defendant's motion for summary
judgment? (2015)
A: NO, the court should not grant the motion for summary judgment because the defense of
payment is a genuine issue as to material fact that must be resolved by the court upon presentation
of evidence.
For a summary judgment to be proper, the movant must establish two requisites: (a) there must be
no genuine issue as to any material fact, except for the amount of damages; and (b) the party
presenting the motion for summary judgment must be
entitled to a judgment as a matter of law. A genuine issue is an issue of fact which requires the
presentation of evidence as distinguished from an issue which is sham, fictitious, contrived or false
claim.
Relative thereto, when the facts pleaded by the parties are disputed or contested, proceedings for a
summary judgment cannot take place of a trial. The evidence on record must be viewed in light
most favourable to the party opposing the motion who must be given the benefit of all favourable
inferences as can reasonably be drawn from the evidence (Smart Communications v. Aldecoa, G.R.
No. 166330, September 11,
2013).
Q: Plaintiff files a request for admission and serves the same on Defendant who fails, within
the time prescribed by the rules, to answer the request. Suppose the request for admission
asked for the admission of the entire material allegations stated in the complaint, what should
plaintiff do? (2012 BAR)
A: The plaintiff should file a Motion for Judgment on the Pleadings because the failure of the
defendant to answer a request for admission results to an implied admission of all the matters
which an admission is requested. Hence, a motion for judgment on the pleadings is the appropriate
remedy where the defendant is deemed to have admitted matters contained in the request for
admission by the plaintiff (Rule 34 in connection with Sec. 2, Rule 26).
A. What are the grounds for judgment on the pleadings? (2%)

B. A's Answer admits the material allegations of B’s Complaint. May the court
motu proprio render judgment on the pleadings? Explain. (2%)
C. A brought an action against her husband B for annulment of their marriage on the ground
of psychological incapacity. B Filed his Answer to the Complaint admitting all the allegations
therein contained. May A move for judgment on the pleadings? Explain. (2%)
SUGGESTED ANSWER:
A. The grounds for judgment on the pleadings .are where an answer fails to tender an issue, or
otherwise admits the material allegations of the adverse party’s pleading. (Sec. 1, Rule 34 of the
1997 Rules of Civil Procedure).
B. No, a motion must be filed by the adverse party. (Sec. 1, Rule 34 of the 1997
Rules) The court cannot motu proprio render judgment on the pleadings.
C. No, because even if B’s answer to A’s complaint for annulment of their marriage admits all the
allegations therein contained, the material facts alleged in the complaint must always be proved.
(Sec. 1 of Rule 34.)
ANOTHER ANSWER:
c. No. The court shall order the prosecutor to investigate whether or not a collusion between the
parties exists, and if there is no collusion, to intervene for the State in order to see to it that the
evidence submitted is not fabricated. (Sec. 3[E], Rule 9 of the 1997
Rules) Evidence must have to be presented in accordance with the requirements set down by the
Supreme Court in Re-public vs. Court of Appeals and Molina (268 SCRA
198.)
Q: A brought an action for unlawful detainer against B in the Municipal Trial Court. B filed
a motion to dismiss on the ground of lack of cause of action for failure to first refer the
dispute to the Barangay Lupon. Acting on B's motion, the case was dismissed. A files a
petition for certiorari with the Regional Trial court assailing the Municipal Trial Court’s
dismissal order on the ground that B’s motion to dismiss is a prohibited motion under the
Revised Rules on Summary Procedure.
A’s motion for summary Judgment was granted by the Regional Trial Court but reversed by
the Court of Appeals on the ground that A made no effort to adduce testimonial evidence in
addition to his affidavits to prove absence of any genuine issue as to any material fact.
Is the decision of the Court of Appeals correct? Explain. Answer:

No. because testimonial evidence is not required to prove the absence of any genuine issue as to
any material fact. This is shown by the pleadings, depositions and admissions together with the
affidavits. (Sec. 3 of Rule 34)
Q: After joinder of issues, the plaintiff moved for partial summary judgment, specifically on
two of the five causes of action asserted in the complaint. Despite opposition by the defendant
who contended that the remedy of summary of judgment was not available because there
were genuine issues of fact which could not justifiably be resolved by affidavits and counter-
affidavits, the court rendered a partial summary of judgment as prayed for. The defendant
moved for reconsideration ten days after notice of the decision, but the motion was denied. In
the same order of denial, the court set for pre-trial conference the three other causes of action
and the defendant’s counterclaims.
Can the defendant appeal the partial summary judgment without awaiting the judgment in
the three remaining causes of action? If he can, when? If he cannot, what is his remedy?
Explain fully. (1987 Bar Question)
Answer:
The partial summary judgment is final and appealable without awaiting the judgment in the three
remaining causes of action, if the following requisites are present:
(1) The two causes of action are separate and independent causes of action and the defendant’s
counterclaim does not arise out of the transaction or occurrence which is the subject matter of said
causes of action. In such case, judgment may be rendered pursuant to the rule of judgments at
various stages (Sec. 5 of Rule 36).
(2) The affidavits, depositions and admissions submitted by the plaintiff show that, except as
to the amount of damages, there is no genuine issue as to any material fact and the plaintiff is
entitled to a judgment as a matter of law (Sec. 3 of Rule 34).
The defendant may appeal within the remaining period or six days from notice of the decision,
since nine days had elapsed when he moved for reconsideration ten days after notice thereof.
Another Alternative Answer:
The partial summary judgment is interlocutory and hence not immediately appealable, if the three
other causes of action are related to the two causes of action subject of the partial summary
judgment and the defendant’s counter claim arises out of the transaction or occurrence which is the
subject matter of said two causes of action. In such case, the partial summary judgment does not
fully adjudicate the case and a trial is necessary. (Sec. 4 of Rule 34) Moreover, there may be
genuine issue of fact that remain to be tried. (Guevarra vs. Court of Appeals, 124 SCRA 297).
The defendant may wait for the final judgment to be rendered on all the causes of action and the
counterclaim and appeal therefrom within fifteen days from notice thereof. In the event the
court orders execution of its partial summary judgment, the defendant may file a petition for
certiorari to set aside said order.
3. Summary judgments a. For the claimant
Q: Modesto sued Ernesto for a sum of money, claiming that the latter owed him PI-million,
evidenced by a promissory note, quoted and attached to the complaint. In his answer with
counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory note,
but that it is Modesto who really owes him PI.5- million. Modesto filed an answer to
Ernesto’s counterclaim admitting that he owed Ernesto, but only in the amount of PO.5-
million. At the pretrial, Modesto marked and identified Ernesto’s promissory note. He also
marked and identified receipts covering payments he made to Ernesto, to the extent of PO.5-
million, which Ernesto did not dispute. After pre-trial, Modesto filed a motion for
judgment on the pleadings, while Ernesto filed a motion for summary judgment
on his counterclaim. Resolve the two motions with reasons. (5%) (2009 Bar
Question)
SUGGESTED ANSWER:
Modesto’s motion for judgment on the pleadings should be denied. While it is true that under the
actionable document rule, Ernesto’s failure to deny under oath the promissory note in his answer
amounted to an implied admission of its genuineness and due execution, his allegation in his
answer that he was coerced into signing the promissory note tendered an issue which should be
tried. The issue of coercion is not inconsistent with the due execution and genuineness of the
instrument. Thus, Ernesto’s failure to deny the genuineness of the promissory note cannot be
considered a waiver to raise the issue that he was coerced in signing the same. Said claim of
coercion may also be proved as an exception to the Parol Evidence Rule.
On the other hand, Ernesto’s motion for summary judgment may be granted. Modesto’s answer to
Ernesto’s counterclaim — that he owed the latter a sum less than what was claimed — amounted to
an admission of a material fact and if the amount thereof could summarily be proved by affidavits,
deposition, etc., without the need of going to trial, then no genuine issue of fact exists.
ALTERNATIVE ANSWER:
Modesto’s motion for judgment on the pleadings should be denied because there is an issue of fact.
While Ernesto did not specifically deny under oath the promissory note attached to Modesto’s
complaint as an actionable document, such non-denial will not bar Ernesto’s evidence that Modesto
coerced him into signing the promissory note. Lack of consideration, as a defense, does not relate
to the genuineness and due execution of the promissory note.
Likewise, Ernesto’s motion for summary judgment should be denied because there is an issue of
fact — the alleged coercion — raise cf by Ernesto which he has yet to prove in a trial on its merits.
It is axiomatic that summary judgment is not proper or valid when there is an issue of fact
remaining which requires a hearing. And this is so with respect to the coercion alleged by Ernesto
as his defense, since coercion is not capable of being established by documentary evidence.
b. For the defendant

c. When the case not fully adjudicated
Q: After defendant has served and filed his answer to plaintiff s complaint for damages
before the proper Regional Trial Court, plaintiff served and filed a motion (with
supporting affidavits) for a summary judgment in his favor upon all of his claims. Defendant
served and filed his opposition (with supporting affidavits) to the motion. After due hearing,
the court issued an order (1) stating
that the court has found no genuine issue as to any material fact and thus concluded
that plaintiff is entitled to judgment in his favor as a matter of law except as to the amount of
damages recoverable, and (2) accordingly ordering that plaintiff shall have judgment
summarily against defendant for such amount as may be found due plaintiff for damages, to
be ascertained by trial on October
7, 2004, at 8:30 o’clock in the morning.
May defendant properly take an appeal from said order? Or, may defendant properly
challenge said order thru a special civil action for certiorari? Reason. (5%) (2004 Bar
Question)
SUGGESTEDANSWER:
No, plaintiff may not properly take an appeal from said order because it is an interlocutory order,
not a final and appealable order (Sec. 4 of Rule 35). It does not dispose of the action or proceeding
(Sec. I of Rule 39). Partial summary judgments are interlocutory. There is still something to be
done, which is the trial for the adjudication of damages (Province ofPangasinan v. Court of
Appeals, 220 SCRA 726 [1993]; Guevarra v. Court of Appeals, 209 Phil. 241 [1983d, but the
defendant may properly challenge said order thru a special civil action for certiorari. (Sec. 1 [c] and
last par. of Rule 41)
Q: After joinder of issues, the plaintiff moved for partial summary judgment, specifically on
two of the five causes of action asserted in the complaint. Despite opposition by the defendant
who contended that the remedy of summary of judgment was not available because there
were genuine issues of fact which could not justifiably be resolved by affidavits and counter-
affidavits, the court rendered a partial summary of judgment as prayed for. The defendant
moved for reconsideration ten days after notice of the decision, but the motion was denied. In
the same order of denial, the court set for pre-trial conference the three other causes of action
and the defendant’s counterclaims.
Can the defendant appeal the partial summary judgment without awaiting the judgment in
the three remaining causes of action? If he can, when? If he cannot, what is his remedy?
Explain fully. (1988 Bar Question)
Answer:
The partial summary judgment is final and appealable without awaiting the judgment in the three
remaining causes of action, if the following requisites are present:
1. The two causes of action are separate and independent causes of action and the defendant’s
counterclaim does not arise out of the transaction or occurrence which is the subject matter of said
causes of action. In such case, judgment may be rendered pursuant to the rule of judgments at
various stages (Sec. 5 of Rule 36).
2. The affidavits, depositions and admissions submitted by the plaintiff show that, except as
to the amount of damages, there is no genuine issue as to any material fact and the plaintiff is
entitled to a judgment as a matter of law (Sec. 3 of Rule 34).
The defendant may appeal within the remaining period or six days from notice of the decision,
since nine days had elapsed when he moved for reconsideration ten days after notice thereof.
Another Alternative Answer:
The partial summary judgment is interlocutory and hence not immediately appealable, if the three
other causes of action are related to the two causes of action subject of the partial summary
judgment and the defendant’s counter claim arises out of the transaction or occurrence which is the
subject matter of said two causes of action. In such case, the partial summary judgment does not
fully adjudicate the case and a trial is necessary. (Sec. 4 of Rule 35) Moreover, there may be
genuine issue of fact that remain to be tried. (Guevarra vs. Court of Appeals, 124 SCRA 297).
The defendant may wait for the final judgment to be rendered on all the causes of action and the
counterclaim and appeal therefrom within fifteen days from notice thereof. In the event the
court orders execution of its partial summary judgment, the defendant may file a petition for
certiorari to set aside said order.
4. Judgment on the pleadings versus summary judgments
Q: What do you understand by a Summary judgment? How is it distinguished from &

Judgment on the Pleadings? (1989 Bar Question)
Answer:
A summary judgment is one rendered by a Court without a trial on motion of either a claimant or a
defending party, with at least ten (10) days notice before the time specified for the hearing, when
the pleadings, supporting affidavits made on personal knowledge which are not rebutted by
opposing affidavits, depositions or admissions, show that, except as to the amount of damages,
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.
It is distinguished from a judgment on the pleadings in that the latter is based on the pleadings
alone. A judgment on the pleadings may be rendered when the answer to the complaint,
counterclaim, cross-claim or third-party complaint fails to tender an issue or otherwise admits the
material allegations of the adverse party’s pleading. (Rules 19 and 34).
5. Rendition of judgments and final orders
Q: After plaintiff in an ordinary civil action before the ZZ Regional Trial Court has
completed presentation of his evidence, defendant without prior leave of court moved for
dismissal of plaintiff s complaint for insufficiency of plaintiff s evidence. After due
hearing of the motion and the opposition thereto, the court issued an order, reading as
follows: “The Court hereby grants defendant’s motion to dismiss and accordingly orders the
dismissal of plaintiff s complaint, with the costs taxed against him. It is so ordered."
Is the order of dismissal valid? May plaintiff properly take an appeal? Reason. (5%) (2004
Bar Question)
SUGGESTED ANSWER:
The order or decision is void because it does not state findings of fact and of law, as required by
Sec. 14, Article VIII of the Constitution and Sec. 1, Rule 36 of the Rules of Court. Being void,
appeal is not available. The proper remedy is certiorari under Rule
65.
ANOTHER ANSWER:
Either certiorari or ordinary appeal may be resorted to on the ground that the judgment is void.
Appeal, in fact, may be the more expedient remedy.
ALTERNATIVE ANSWER:
Yes. The order of dismissal for insufficiency of the plaintiff’s evidence is valid upon defendant’s
motion to dismiss even without prior leave of court. (Sec. 1 of Rule
33). Yes, plaintiff may properly take an appeal because the dismissal of the complaint is
a final and appealable order. However, if the order of dismissal is reversed on appeal, the plaintiff
is deemed to have waived his right to present evidence. (Id.)
6. Entry of judgment and final order
Q: AB mortgaged his property to CD. AB failed to pay his obligation and CD filed an action
for foreclosure of mortgage. After trial, the court issued an Order granting CD’s prayer for
foreclosure of mortgage and ordering AB to pay CD the full amount of the mortgage debt
Including Interest and other charges not later than 120 days from date of receipt of the
Order. AB received the Order on August
10, 1999. No other proceeding took place thereafter. On December 20, 1999, AB tendered the
full amount adjudged by the court to CD but the latter refused to accept it on the ground that
the amount was tendered beyond the 120-day period granted by the court. AB filed a motion
in the same court praying that CD be directed to receive the amount tendered by him on the
ground that the Order does not comply with the provisions of Section 2, Rule 68 of the Rules
of Court
which gives AB 120 days from entry of judgment, and not from date of receipt of the Order.
The court denied his motion on the ground that the Order had already become final and can
no longer be amended to conform with Section 2, Rule 68. Aggrieved, AB files a petition for
certiorari against the Court and CD. Will the petition for certiorari prosper? Explain. (5%)
(2000 Bar Question)
SUGGESTED ANSWER:
Yes. The court erred in issuing an Order granting CD’s prayer for foreclosure of mortgage and
ordering AB to pay CD the full amount of the mortgage debt including interest and other charges
not later than 120 days from receipt of the Order. The court should have rendered a judgment
which is appealable. Since no appeal was taken, the judgment became final on August 25, 1999,
which is the date of entry of judgment. (Sec. 2, Rule 36, 1997 Rules of Civil Procedure) Hence, AB
had up to December 24,
1999 within which to pay the amount due. (Sec 2, Rule 68, 1997 Rules of Civil Procedure) The
court gravely abused its discretion amounting to lack or excess of jurisdiction in denying AB’s
motion praying that CD be directed to receive the amount tendered.
P. Post-judgment remedies
1. Motion for new trial or reconsideration
Under Rule 52, a Second Motion for Reconsideration is a prohibited pleading. However,
where may such Motion be allowed? (2012 BAR)
a. the Sandiganbayan;
b. the Office of the President;
c. the Supreme Court;
d. None of the above.
When may a party file a second motion for reconsideration of a final judgment or final order?
(2013 BAR)
(A) At anytime within 15 days from notice of denial of the first motion for
reconsideration.
(B) Only in the presence of extraordinarily persuasive reasons and only after obtaining
express leave from the ruling court.
(C) A party is not allowed to fi le a second motion for reconsideration of a final
judgment or final order.
(D) A party is allowed as a matter of right to fi le a second motion for reconsideration of
a judgment or final order.
Fraud as a ground for new trial must be extrinsic as distinguished from intrinsic. Which of
the following constitutes extrinsic fraud? (2011 BAR)
(A) Collusive suppression by plaintiff’s counsel of a material evidence vital to his
cause of action.
(B) Use of perjured testimony at the trial.
(C) The defendant’s fraudulent representation that caused damage to the plaintiff.
(D) Use of falsified documents during the trial.
A motion for reconsideration of a decision is pro forma when (2011 BAR)

(A) it does not specify the defects in the judgment.
(B) it is a second motion for reconsideration with an alternative prayer for new trial.
(C) it reiterates the issues already passed upon but invites a second look at the evidence and the
arguments.
(D) its arguments in support of the alleged errors are grossly erroneous.
2. Appeals in general
a. Judgments and final orders subject to appeal
Which of the following is appealable? (2011 BAR)

(A) An order of default against the defendant.
(B) The denial of a motion to dismiss based on improper venue. (C) The dismissal of an action with
prejudice.
(D) The disallowance of an appeal.
In election cases involving an act or omission of an MTC or RTC, a certiorari petition shall
be filed with: (2012 BAR)
a. The Court of Appeals
b. The Supreme Court c. The COMELEC
d. The Court of Appeals or the COMELEC both having concurrent jurisdiction
Q: A decision adverse to defendant was rendered by the trial court in an action for recovery
of possession of a piece of land. Defendant wanted to appeal the decision but his lawyer
begged off from rendering further professional services. Within the period of appeal,
however, defendant came to know a man who introduced himself as Atty. Manuel Palma and
volunteered to handle his case.
Thereafter, defendant engaged the services of “Atty. Palma" and paid him the professional
fee for the handling of his appeal. Immediately, “Atty. Palma" filed a notice of appeal. In due
course, the Court of Appeals sent a notice to “Atty. Palma" giving him forty-five days within
which to f e the appellant’s brief for defendant. However, the 45-aay period expired without
the appellant’s brief being filed.
Directed to show cause why the appeal should not be dismissed for failure to file the
appellant’s brief within the reglementary period, “Atty. Palma" took no action.
Consequently, the Court of Appeals dismissed defendant s appeal.
Only after the Court of Appeals’ resolution dismissing the appeal had already become final
and executory and defendant learns of such dismissal.
Subsequent investigation made by a friend of defendant disclosed that “Atty. Palma “is not a
lawyer. Accordingly defendant asked the Court*of Appeals to nullify its resolution dismissing
his appeal. He asserted that his representation by a fake lawyer amounted to deprivation of
the right to appeal and, hence, a denial of due process.
On the other hand, the adverse party (plaintiff in the reconveyance suit) contended
that the resolution dismissing the appeal can no longer be set aside as it had long become
final and executory, and that defendant had lost his right appeal due to the negligence of his
lawyer (referring to“Atty. Palma”) for which he must suffer the consequence.
Should defendant’s plea for nullification of the dismissal of the appeal be granted?
Why?(1993 Bar Question)
Answer:
Yes, because defendant had not been accorded due process of law when he lost his right to appeal
due to the actions of “Atty. Palma" who was not a lawyer. While a client is generally bound by the
action of his counsel, even by the attorney’s mistake or negligence, this rule will not apply where
the lawyer turned out to be fake. [Telan vs. Court of Appeals, 202 SCRA 534)
Findings of fact are generally not disturbed by the appellate court except in cases
. (2013 BAR)
(A) where the issue is the credibility of the witness
(B) where the judge who heard the case is not the same judge who penned the decision
(C) where the judge heard several witnesses who gave conflicting
testimonies
(D) where there are substantially overlooked facts and circumstances that, if properly
considered, might affect the result of the case
b. Modes of appeal
i. Ordinary appeal
ii. Petition for review
iii. Petition for review on certiorari
The Energy Regulatory Commission (ERC) promulgates a decision increasing electricity

rates by 3%. KMU appeals the decision by way of petition for review. The appeal will
therefore: (2012 BAR)
a. stay the execution of ERC decision.
b. shall not stay the ERC decision unless the Court of Appeals directs otherwise. c. stay the
execution of the ERC decision conditioned on KMU posting a bond.
d. shall not stay the ERC decision.
Q: Explain each mode of certiorari: (2006 Bar Question)
a. As a mode of appeal from the Regional Trial Court or the Court of Appeals to the
Supreme Court. 2.5%
SUGGESTED ANSWER:
A petition for review on certiorari under Rule 45 of the 1997 Revised Rules on Civil Procedure is a
mode of appeal on pure questions law from a judgment or final order or resolution of the Court of
Appeals or the Regional Court to the Supreme Court.
Q: Which of the following decisions may be appealed directly to the Supreme Court (SC)?
(Assume that the issues to be raised on appeal involve purely questions of law) (2014)
(A) Decision of the Regional Trial Court (RTC) rendered in the exercise of its appellate
jurisdiction
(B) Decision of the RTC rendered in the exercise of its original jurisdiction
(C) Decision of the Civil Service Commission
(D) Decision of the Office of the President
Answer:
(B) decision of the RTC rendered in the exercise of its original jurisdiction. Section 2, Rule 41 of
the Rules of Court provides the three (3) modes of appeal, which are as follows:
1. Ordinary appeal – the appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal shall be required except in special proceedings
and other cases of multiple or separate appeals where the law or these Rules so require. In
such cases, the record on appeal shall be filed and served in like manner.
2. Petition for review – the appeal to the Court of Appeals in cases decided by the Regional Trial
court in the exercise of its appellate jurisdiction shall be by
petition for review in accordance with Rule 42.
3. Appeal by certiorari – in all cases where only questions of law are raised or involved, the appeal
shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.
Q: Mr. Boaz filed an action for ejectment against Mr. Jachin before the
Metropolitan Trial Court (MeTC). Mr. Jachin actively participated in every stage of
the proceedings knowing fully well that the MeTC had no jurisdiction over the action. In his
mind, Mr. Jachin was thinking that if the MeTC rendered judgment against him, he could
always raise the issue on the jurisdiction of the MeTC. After trial, the MeTC rendered
judgment against Mr. Jachin. What is the remedy of Mr. Jachin? (2014)
(A) File an appeal
(B) File an action for nullification of judgment
(C) File a motion for reconsideration
(D) File a petition for certiorari under Rule 65
A: (A) file an appeal. An appeal from a judgment or final order of a Municipal Trial Court may be
taken to the Regional Trial Court (Section 1, Rule 40, Rules of Court). Moreover, under
Rule 41, of the Rules of Court, decisions of the Metropolitan Trial Court in the exercise of its
original jurisdiction can be appealed to the Regional Trial Court. Besides, a Motion for
Reconsideration is prohibited under the Rules on Summary Procedure
Q: The defendant was declared in default in the RTC for his failure to file an answer to a
complaint for a sum of money. On the basis of the plaintiff’s ex parte presentation of
evidence, judgment by default was rendered against the defendant. The default judgment
was served on the defendant on October 1, 2001. On October 10, 2001, he filed a verified
motion to lift the order of default and to set aside the judgment. In his motion, the defendant
alleged that, immediately upon receipt of the summons, he saw the plaintiff and confronted
him with his receipt evidencing his payment and that the plaintiff assured him that he would
instruct his lawyer to withdraw the complaint. The trial court denied the defendant’s motion
because it was not accompanied by an affidavit of merit. The defendant filed a special civil
action for certiorari under Rule 65 challenging the denial order.
A. Is certiorari under Rule 65 the proper remedy? Why? (2%)
B. Did the trial court abuse its discretion or act without or in excess of its jurisdiction
in denying the defendant's motion to lift the order of default and to set aside the default
judgment? Why? (3%) (2002 Bar Question)
SUGGESTED ANSWER:
A. The petition for certiorari under Rule 65 filed by the defendant is the proper remedy because
appeal is not a plain, speedy and adequate remedy in the ordinary course of law in appeal, the
defendant in default can only question the decision in the light of the evidence of the plaintiff. The
defendant cannot invoke the receipt to prove payment of his obligation to the plaintiff.
ALTERNATIVE ANSWER:
A. Under ordinary circumstances, the proper remedy of a party wrongly declared in default is either
to appeal from the judgment by default or to file a petition for relief from
judgment [Jeo, Inc. v. Court of Appeals, 251 SCRA3S1 (1995)].
SUGGESTED ANSWER:
B. Yes, the trial court gravely abused its discretion or acted without or in excess of jurisdiction in
denying the defendant’s motion because it was not accompanied by a separate affidavit of merit, in
his verified motion to lift the order of default and to set aside the judgment, the defendant alleged
that immediately upon receipt of the summons, he saw the plaintiff and confronted him with his
receipt showing payment and that the plaintiff assured him that he would instruct his lawyer to
withdraw the complaint Since the good defense of the defendant was already incorporated in
the verified motion, there was no need for a separate affidavit of merit [Capuz v. Court of Appeals,
233 SCRA 471 (1994); Mago v. Court of Appeals, 303 SCRA 600 (1999)]
A. What are the modes of appeal to the Supreme Court? (2%) B. x x x
SUGGESTED ANSWER:
A. The modes of appeal to the Supreme Court are:

1. appeal by certiorari on pure questions of law under Rule 45 through a petition for review on
certiorari; and
2. ordinary appeal in criminal cases through a notice of appeal from
convictions imposing reclusion perpetua or life imprisonment or where a lesser penalty Is involved
but for offenses committed on the same occasion or which arose out of the same occurrence that
gave rise to the more serious offense. (Rule 122, sec. 3) Convictions imposing the death penalty are
elevated through automatic review.
Q: On 3 January 1991, the Mayon Corp. filed a complaint for foreclosure of real estate
mortgage against one of its sales agents. A, who was discovered to have incurred a shortage in
his accounts. The mortgage was executed to guarantee faithful compliance with his duties
and responsibilities as a sales agent. Impleaded in the complaint as co-defendants were A’s
co-mortgagors, B and C.
Acting on defendants' motion to dismiss, the court dismissed the complaint in an

Order dated 15 February 1991, a copy of which was received by Mayon Corp. on
18 February 1991. On 15 March 1991, and definitely within a reasonable period from receipt
of the dismissal order, Mayon Corp. filed with the Supreme Court a
special civil action for certiorari under Rule 65 of the Rules of Court alleging
therein that the trial court acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction in granting the motion to dismiss. (1991
Bar Question)
(a) Should the Supreme Court give due course to the petition? Answer:
No, because the proper remedy was an appeal from the order of dismissal. The special civil action
of certiorari cannot take the place of a lost appeal. (Limpot v. CA, 170 SCRA 367)
Distinguish certiorari as a special civil action under Rule 65 from certiorari as a mode of
appeal under Rule 45 of the Rules of Court.
Answer:
(b) Certiorari as a special civil action is within the jurisdiction of the Supreme Court, the Court of
Appeals and the. Regional Trial Courts, whereas certiorari as a mode of appeal is within the
jurisdiction only of the Supreme Court.
The grounds for certiorari under Rule 65 are lack or excess of jurisdiction or grave abuse of
discretion, whereas the grounds for certiorari under Rule 45 are errors of law.
The court or judge should be joined as indispensable party defendant in certiorari under Sec. 5 of
Rule 65, but need not be joined in certiorari under Rule 45. (MWSS v. CA, 143 SCRA 623;
Philippine Global Communications, Inc. v. Relova. 145 SCRA 385)
(c) May a special civil action for certiorari prosper in case of a denial of a motion to dismiss
or a motion to quash? If so, in what instance or instances?
Answer:
(c) Yes, if it can be shown that the trial court acted without or in excess of jurisdiction or with
grave abuse of discretion, since the order of denial is interlocutory and not immediately appealable.
(Manalo v. Mariano, 69 SCRA 800; Tacas v. Cariaso, 72
SCRA 171; Newsweek v. IAC, 142 SCRA 171)
Q: The defendant in a civil action received a note of the judgment of the Municipal
Trial Court on 10 December. (1991 Bar Question)
A. x x x
B. Can he validly move for extension-of the period for filing a motion for
reconsideration of the decision in view of the Christmas holidays?
Answer:
No. a motion for extension of time to file a motion for reconsideration is not allowed. (Habaluyas
Ent v. Japson 142 SCRA 208)
C. In this case, when will the appeal be deemed perfected? Answer:

The appeal will be deemed perfected upon the expiration of the last day to appeal by any party.
(Sec. 23 of Interim Rules)
Q: In his answer to the complaint, Mario Reyes alleged that he does not owe Norma Alajar
any sum of money, and that he executed the promissory note only to enable Alajar to show
the same to her husband to explain the disappearance of the amount from the conjugal funds
as Norma Alajar lost the same in the casino. The answer is not verified. At the trial, the
lawyer of Norma Alajar objected to the testimony of Mario Reyes, as to his accommodation
story because, as the answer is not verified, he is deemed to have admitted the genuineness
and due execution of the promissory note.
xxx
While the trial was ongoing, the lawyer of Mario Reyes discovered that there was improper
service of summons, the summons having been sent by registered mail. He filed a motion to
dismiss on the ground that the court had not acquired jurisdiction over the person of Mario
Reyes.
xxx
a) Suppose the motion to dismiss in the preceding problem is granted, what is the remedy of
Norma Alajar?
b) If the motion to dismiss is denied, what is the recourse of Mario Reyes? Explain your
answers. (1990 Bar Question)
Answer:
(a) The remedy of Norma Alajar from the order of dismissal is an appeal by certiorari under Rule
45 of the Rules of Court.
Another remedy is for Alajar to file a motion for reconsideration with a request to have another
summons served on Mario Reyes.
Answer:
(b) The recourse of Mario Reyes from the order of denial is not an immediate appeal because the
order i$ interlocutory. However, since the issue raised is lack of Jurisdiction over his person, he
may file a petition for certiorari under Rule 65 of the Rules of Court. (Newsweek v. IAC, 142
SCRA 171)
Q: When a Municipal Trial Court (MTC), pursuant to its delegated jurisdiction, renders an
adverse judgment in an application for land registration, the aggrieved party’s remedy is:
(2014)
(A) ordinary appeal to the Regional Trial Court
(B) petition for review on certiorari to the Supreme Court
(C) ordinary appeal to the Court of Appeals
(D) petition for review to the Court of Appeals
Answer:
(C) Ordinary appeal to the Court of Appeals. Under Section 34, Batas Pambansa Blg.
129, the judgment of the MTC in the exercise of its delegated jurisdiction in land registration cases
shall be appealable in the same manner as decisions of the RTC. Thus, an ordinary appeal to the
Court of Appeals is the appropriate remedy.
a) What are the contents of a petition for review by certiorari, under Rule 45 of the Rules of
Court, from a judgment of the Court of Appeals to the Supreme Court?
b) When must this petition for review under paragraph (a) hereof be filed? How does this
period differ from that required for filing the requisite petition in a special civil action for
certiorari?
c) State the three (3) grounds upon which the Supreme Court may dismiss the petition under
paragraph (a) hereinabove.
Answer:
a) The petition shall contain a concise statement of the matters involved, the assignment of
errors made in the court below, and the reasons relied on for the allowance of the petition, and it
should be accompanied with a true copy of the judgment sought to be reviewed, together with
twelve (12) copies of the record on appeal, if any, and of the petitioner’s brief as filed in the Court
of Appeals. A verified statement of the date when notice of judgment and denial of the motion for
reconsideration, if any, were received shall accompany the petition. (Sec. 2 of Rule 45)
b) Within fifteen (15) days from notice of judgment or of the denial of his motion for
reconsideration. (Sec. 1 of Rule 43)
There is no reglementary period for filing a petition for certiorari as a special civil action. Only a
reasonable period is required.
c) The three grounds are that the appeal is without merit, or is prosecuted manifestly for
delay, or that the questions raised are too unsubstantial to require consideration. (Sec. 3 of Rule 45)
c. Period of appeal
Q: The defendant in a civil action received a note of the judgment of the Municipal
Trial Court on 10 December. (1991 Bar Question)
(a) What is his last day for appealing? Answer:

Dec. 26, since the last day, Dec. 25 is a holiday.
Q: Defendant X received an adverse Decision of the Regional Trial Court in an ordinary civil
case on 02 January 2003. He filed a Notice of Appeal on 10 January
2003. On the other hand, plaintiff A received the same Decision on 06 January
2003 and, on 19 January 2003, filed a Motion for Reconsideration of the Decision. On 13
January 2003, defendant X filed a Motion withdrawing his notice of appeal in order to file a
Motion for New Trial which he attached.
On 20 January 2003, the court denied A's Motion for Reconsideration and X’s Motion to
Withdraw Notice of Appeal. Plaintiff A received the Order denying his Motion for
Reconsideration on 03 February 2003 and filed his Notice of Appeal on
05 February 2003.
The court denied due course to A’s Notice of Appeal on the ground that the period to appeal
had already lapsed.
A. Is the court’s denial of X’s Motion to Withdraw Notice of Appeal proper?
B. Is the court’s denial of due course to A's appeal correct? (2003 Bar Question)
SUGGESTED ANSWER:
A. No, the court’s denial of X’s Motion to Withdraw Notice of Appeal is not proper, because the
period of appeal of X has not yet expired. From January 2, 2003 when X received a copy of the
adverse decision up to January 13, 2003 when he
filed his withdrawal of appeal and Motion for New Trial, only ten (10) days had elapsed and he had
fifteen (15) days to do so.
B. No, the court’s denial of due course to A’s appeal is not correct because the appeal was taken
on time. From January 6, 2003 when A received a copy of the decision up to January 19, 2003
when he filed a Motion for Reconsideration, only twelve (12) days had elapsed. Consequently, he
had three (3) days from receipt on February 3, 2003 of the Order denying his Motion for
Reconsideration within which to appeal. He filed his notice of appeal on February 5, 2003, or only
two (2) days later.
ALTERNATIVE ANSWER:
(b) Since A's Motion for Reconsideration was filed on January 19, 2003 and it was denied on
January 20, 2003, it was clearly not set for hearing with at least three days’ notice. Therefore, the
motion was pro forma and did not interrupt the period of appeal which expired on January 21, 2003
or fifteen (15) days after notice of the decision on January 6, 2003.
In a civil action involving three separate causes of action, the court rendered summary
judgment on the first two causes of action and tried the third. After the period to appeal from
the summary judgment expired, the court issued a writ of execution to enforce the same. Is
the writ of execution proper? (2011 BAR)
(A) No, being partial, the summary judgment is interlocutory and any appeal from
it still has to reckon with the final judgment.
(B) Yes since, assuming the judgment was not appealable, the defendant should have questioned it
by special civil action of certiorari.
(C) No, since the rules do not allow a partial summary judgment.
(D) No, since special reason is required for execution pending rendition of a final decision in the
case.
d. Perfection of appeal
Q: Where and how will you appeal the following:

a) An order of execution issued by the RTC. (2012 BAR)
A: A petition for certiorari under Rule 65 before the Court of Appeals.
b) Judgment of RTC denying a petition for Writ of Amparo. (2012 BAR)
A: Any party may appeal from the final judgment or order to the Supreme Court by way of a
petition for review on certiorari under Rule 45 of the Rules of Court. The period of appeal shall be
five (5) working days from the date of notice of the adverse judgment, and the appeal may raise
questions of fact or law or both (Sec.19, Rule on the Writ of Amparo, A.M. No. 07-9-12-SC,
September 25, 2007).
c) Judgment of MTC on a land registration case based on its delegated jurisdiction. (2012 BAR)
A: The appeal should be filed with the Court of Appeals by filing a Notice of Appeal within 15
days from notice of judgment or final order appealed from (Sec. 34, Batas Pambansa Blg. 129, or
the Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691, March 25, 1994)
d) A decision of the Court of Tax Appeal's First Division. (2012 BAR)
A: The decision of the Court of Tax Appeals Division may be appealed to the CTA en banc. The
decisions of the Court of Tax Appeals are no longer appealable to the Court of Appeals. Under the
modified appeal procedure, the decision of a division of the CTA may be appealed to the CTA en
banc. The decision of the CTA en banc may in turn be directly appealed to the Supreme Court by
way of a petition for review on certiorari under Rule 45 on questions of law (Section 11, R.A. 9282,
March 30,
2004).
A. When is an appeal from the Regional Trial Court to the Court of Appeals deemed
perfected? (2%)
B. XXX received a copy of the RTC decision on June 9, 1999; YYY received it on the next
day, June 10, 1999. XXX filed a Notice of Appeal on June 15, 1999. The parties entered into a
compromise on June 16, 1999. On June 13, 1999, YYY, who did not appeal, filed with the
RTC a/notion for approval of the Compromise Agreement. XXX changed his mind and
opposed the motion on the ground that the RTC has no more jurisdiction. Rule on the motion
assuming that the records have not yet been forwarded to the CA. (2%)
SUGGESTED ANSWER:
A. An appeal from the Regional Trial Court to the Court of Appeals is deemed perfected as to the
appellant upon the filing of a notice of appeal in the Regional Trial Court in due time .or within the
reglementary period of appeal. An appeal by record on appeal is deemed per-fected as to the
appellant with respect to the subject matter thereof upon the approval of the record on appeal filed
in due time. (Sec. 9, Rule 41 of the 1997 Rules)
B. The contention of XXX that the RTC has no more jurisdiction over the case is not
correct because at the time that the motion to approve the compromise had been filed, the period of
appeal of YYY had not yet expired. Besides, even if that period had already expired, the records of
the case had not yet been forwarded to the Court of Appeals. The rules provide that in appeals by
notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in
due time and the expiration of the time to appeal of the other parties. (Sec. 9,
third par. Rule 41 of the 1997 Rules) The rules also provide that prior to the transmittal of the
record, the court may, among others, approve compromises. (Sec. 9, fifth par., Rule 41 of the 1997
Rules)
(Note: June 13, the date of the filing of the motion for approval of the
Compromise Agreement, appears to be a clerical error.)
Q: By sheer coincidence, Atty. Lopez was on the same day, June 30, 1991, served with
adverse decisions of the Court of Appeals and the Regional Trial Court. In each case, he filed
a motion for reconsideration simultaneously on July 10. 1991. He received notices of the
denial of his two motions for reconsideration on August 15, 1991.
If Atty. Lopez decides to appeal in each of the two cases: (1992 Bar Question)
(a) What mode of appeal should he pursue in each case? Suggested Answer:
1. From the Court of Appeals to Supreme Court - appeal by certiorari under Rule
45.
2. From the Regional Trial Court to Court of Appeals - ordinary appeal on questions of fact and
law.
3. From the Regional Trial Court to Supreme Court - appeal by certiorari on
questions of lawonly.
(b) How would he perfect each appeal? Suggested Answer:

1. From Court of Appeals to Supreme Court , by filing a petition for review on certiorari with the
Supreme Court and serving a copy on the Court of Appeals and the adverse party.
2. From Regional Trial Court to Court of Appeals, by filing a notice of appeal with
Regional Trial Court and serving a copy on the adverse party.
3. From Regional Trial Court to Supreme Court, by filing a petition for review on certiorari with
Supreme. Court and serving a copy on the lower court and the adverse
party.
(c) Within what time should each appeal be perfected? Suggested Answer:
1. From Court of Appeals to Supreme Court, on or before August 30, 1991, or fifteen days from
notice of the denial of the motion for reconsideration. (Sec. 1 of Rule 45)
2. From Regional Trial Court to Court of Appeals, on or before August 21, 1991, or the remaining
period of 6 days counted from notice of denial, since from June 30 to July 10, nine days had
elapsed. (De Las Alas vs. Court of Appeals, 83 SCRA 200)
3. From Regional Trial Court to Supreme Court, on or before August 30. 1991, as in appeal from
Court of Appeals to Supreme Court. (RA 5440)
Q: In the same case, the trial court rendered judgment against Mario Reyes which was
received by defendant’s lawyer on September 3, 1990 and by plaintiff’s lawyer on
September 5, 1990. Mario Reyes filed his notice of appeal on September 18, 1990. On
September 19, 1990, Norma Alajar filed a motion for execution pending appeal alleging
that the appeal is dilatory and that Mario Reyes has no valid defenses; besides, Norma
Alajar is already destitute and needs the money very badly. Mario Reyes opposed the motion
for execution pending appeal on the ground that since his appeal had been perfected on
September 18, 1990, the trial court can no longer act on the said motion.
Decide with reasons. (1990 Bar Question) Answer:
The motion for execution pending appeal filed by Norma Alajar was timely because it was filed
before the perfection of the appeal of Mario Reyes. The appeal was perfected upon the expiration
of the last day to appeal by any party. (Sec. 23 of Interim Rules). Hence, the appeal was perfected
on September 20, 1990, which was the last day to appeal by Norma Alajar because her lawyer
received copy of the decision on September 5, 1990. (Balgado v. IAC, 147 SCRA 258)
Q: In a decision rendered by the Regional Trial Court, plaintiffs Jose, Benigno and Nicolas
were ordered to surrender the possession of the fishpond subject matter of the litigation in
favor of defendant Yolando. Counsel for the plaintiffs received the decision on July 23, 1987,
and appealed from it on the following day, July 24,
1987. Counsel for the defendant received the decision earlier, on July 20, 1987, and filed a
motion for execution pending appeal on July 25, 1987, which the trial court granted.
Plaintiffs went to the Court of Appeals questioning the order granting the execution of
judgment. The appellate court nullified the order on the ground that the motion for execution
pending appeal was filed on July 25, 1987, or after the appeal had already been perfected.
Is the decision of the Court of Appeals proper? Explain. (1989 Bar Question)
Answer:
No. The time within which the prevailing party may file a motion for execution pending appeal is
before the perfection of the appeal. An appeal is deemed perfected upon the expiration of the last
day to appeal by any party. The appeal of the plaintiffs, which was filed on July 24, 1987, was
perfected only on August 8, 1987, which was the
last day to appeal by the defendant. Hence, the motion for execution pending appeal filed on July
25, 1987 was filed on time (Sec. 23 of Interim Rules; Delgado vs. IAC, 147
SCRA 258).
e. Appeal from judgments or final orders of the MTC
RTC decides an appeal from the MTC involving a simple collection case. The decision
consists of only one page because it adopted by direct reference the findings of fact and
conclusions of law set forth in the MTC decision. Which statement is most accurate? (2012
BAR)
a. The RTC decision is valid because it was issued by a court of competent jurisdiction.
b. The RTC decision is valid because it expedited the resolution of the appeal.
c. The RTC decision is valid because it is a memorandum decision recognized by law.
d. The RTC decision is valid because it is practical and convenient to the judge
and the parties.
Q: On July 15,2009, Atty. Manananggol was served copies of numerous unfavorable

judgments and orders. On July 29, 2009, he filed motions for reconsideration which were
denied. He received the notices of denial of the motions for reconsideration on October
2,2009, a Friday. He immediately informed his clients who, in turn, uniformly instructed
him to appeal. How, when and where should he pursue the appropriate remedy for each of
the following: (10%)
[a] Judgment of a Municipal Trial Court (MTC) pursuant to its delegated jurisdiction
dismissing his client’s application for land registration? (2009 Bar Question)
SUGGESTED ANSWER:
By notice of appeal, within 15 days from notice of judgment or final order appealed from,
to the Court of Appeals;
Q: State the steps for bringing up to the Supreme Court: (1994 Bar Question) 1) a decision of
the Municipal Trial Court of Manila in an ejectment case. Answer:
1) To bring up a decision of the Municipal Trial Court of Manila in an ejectment case to the
Supreme Court, it must first be appealed to the Regional Trial Court by notice of appeal, and the
decision of the Regional Trial Court may be appealed to the Court of Appeals through a petition for
review* after which the decision of the Court of Appeals may be elevated to the Supreme Court
through a petition for review on certiorari The decision of the Regional Trial Court may be
appealed directly to the Supreme Court on questions of law only through a petition for review on
certiorari
f. Appeal from judgments or final orders of the RTC
Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the

statement is false. Explain your answer in not more than two (2) sentences. (5%)
xxxxxxxxxxxx
[e] The filing of a motion for the reconsideration of the trial court’s decision
results in the abandonment of a perfected appeal. (2009 Bar Question) SUGGESTED
ANSWER:
FALSE. The trial court has lost jurisdiction after perfection of the appeal and so it can no longer
entertain a motion for reconsideration.
ALTERNATIVE ANSWER:
FALSE, because the appeal may be perfected as to one party but not yet perfected as to the other
party who may still file a motion for reconsideration without abandonment of his right of appeal
even though the appeal of the case is perfected already as to the other party.
Q: Distinguish the two (2) modes of appeal from the judgment of the Regional
Trial Court to the Court of Appeals. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
In cases decided by the Regional Trial Courts in the exercise of their original jurisdiction,
appeals to the Court of Appeals shall be ordinary appeal by filing written notice of appeal
indicating the parties to the appeal; specifying the judgment/final order or part thereof appealed
from; specifying the court to which the appeal is being taken; and stating the material dates
showing the timeliness of the appeal. The notice of appeal shall be filed with the RTC which
rendered the judgment appealed from and copy thereof shall be served upon the adverse party
within 15 days from notice of judgment or final order appealed from. But if the case admits of
multiple appeals or is a special proceeding, a record on appeal is required aside from the written
notice of appeal to perfect the appeal, in which case the period for appeal and notice upon the
adverse party is not only 15 days but 30 days from notice of judgment or final order appealed from.
The full amount of the appellate court docket fee and other lawful fees required must also be paid
within the period for taking an appeal, to the clerk of the court which rendered the judgment or
final order appealed from (Secs. 4 and 5, Rule 41, Rules of Court). The periods of 15 or 30 days
above-stated are non-extendible.
In cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction, appeal
to the Court of Appeals shall be by filing a verified petition for review with the Court of Appeals
and furnishing the RTC and the adverse party with copy thereof, within 15 days from notice of
judgment or final order appealed from. Within the same period for appeal, the docket fee and other
lawful fees required with the deposit for cost should be paid. The 15-day period maybe extended
for 15 days and another 15 days for compelling reasons.
Q: State the steps for bringing up to the Supreme Court: (1994 Bar Question)
xxxxxx
a decision of the Regional Trial Court, Quezon City, in a case originally filed
with said court and where the appeal involves a pure question of law. Answer:
xxxxxx
To bring up to the Supreme Court a decision of the Regional Trial Court. Quezon
City, in a case originally filed with said court and where the appeal involves a pure question of law,
a petition for review on certiorari should be filed. (Murillo v.
Consul: SC Circular No. 2-90).

xxx
Judgment of the Regional Trial Court (RTC) denying his client’s petition for a Writ of
Habeas Data? (2009 Bar Question)
SUGGESTED ANSWER:
By verified petition for review on certiorari under Rule 45, with the modification that appellant
may raise questions of fact or law or both, within 5 work days from date of notice of the judgment
or final order to the Supreme Court (Sec. 19, A.M. No. Q8-1-
16SC);
[c] Order of a Family Court denying his client’s petition for Habeas Corpus in relation to
custody of a minor child? (2009 Bar Question)
SUGGESTED ANSWER:
By notice of appeal, within 48 hours from notice of judgment or final order to the
Court of Appeals (Sec. 14, RA No. 8369 in relation to Sec 3, Rule 41, Rules of Court).
[d] Order of the RTC denying his client’s Petition for Certiorari questioning the
Metropolitan Trial Court’s (MeTC’s) denial of a motion to suspend criminal proceedings?
(2009 Bar Question)
SUGGESTED ANSWER:
By notice of appeal, within 15 days from notice of the final Order, to the Court of
Appeals (Magestrado v. People, 527SCRA 125 [2007J\.
Q: After defendant has served and filed his answer to plaintiff s complaint for damages
before the proper Regional Trial Court, plaintiff served and filed a motion (with
supporting affidavits) for a summary judgment in his favor upon all of his claims. Defendant
served and filed his opposition (with supporting affidavits) to the motion. After due hearing,
the court issued an order (1) stating that the court has found no genuine issue as to any
material fact and thus concluded that plaintiff is entitled to judgment in his favor as a
matter of law except as to the amount of damages recoverable, and (2) accordingly ordering
that plaintiff shall have judgment summarily against defendant for such amount as may be
found due plaintiff for damages, to be ascertained by trial on October
7, 2004, at 8:30 o’clock in the morning.
May defendant properly take an appeal from said order? Or, may defendant properly
challenge said order thru a special civil action for certiorari? Reason. (5%) (2004 Bar
Question)
SUGGESTED ANSWER:
No, plaintiff may not properly take an appeal from said order because it is an interlocutory order,
not a final and appealable order (Sec. 4 of Rule 35). It does not dispose of the action or proceeding
(Sec. I of Rule 39). Partial summary judgments are interlocutory. There is still something to be
done, which is the trial for the adjudication of damages (Province ofPangasinan v. Court of
Appeals, 220 SCRA 726 [1993]; Guevarra v. Court of Appeals, 209 Phil. 241 [1983d, but the
defendant may properly challenge said order thru a special civil action for certiorari. (Sec. 1 [c] and
last par. of Rule 41)
Q: The Regional Trial Court (RTC) affirmed the appealed decision of the Municipal Trial
Court (MTC). You are the counsel of the defeated party and he tells you to appeal the RTC’s
decision.
A. What mode of appeal will you adopt? [2%]

B. Within what time and in what court should you file your appeal? [3%] (1998
Bar Question)
SUGGESTED ANSWER:
A. The mode of appeal is by petition for review under Rule 42. 1997 Rules of Civil
Procedure.
B. The period of appeal is within fifteen (15) days from notice of the decision subject of the appeal
or of the denial of a motion for new trial or reconsideration filed in due time. The appeal shall be
filed la the Court of Appeals. (See. 1, Hole 42, 1997 Rules of Civil Procedure.)
Q: If the accused is meted the penalty of reclusion perpetua by the Regional Trial Court,
what should he do to have his case reviewed by the proper appellate court? (19932 Bar
Question)
Suggested Answer:
If the accused is meted the penalty of reclusion perpetua by the Regional Trial Court, he should file
a notice of appeal to the Supreme Court which has exclusive appellate jurisdiction. (Sec. 5, Art.
VIII, Constitution: Sec. 3(c) of Rule 122)
Q: Suppose that instead of filing a motion for reconsideration with the RTC, Juan Santos
filed a notice of appeal with the RTC stating that he is appealing to the Court of Appeals on
the ground that the judgment is contrary to the law and the facts of the case.
As lawyer for Maria Cruz, on what procedural ground will you oppose the appeal? Explain
your answer. (1990 Bar Question)
Answer:
I would oppose the appeal on the ground that the proper procedure is the filing of a petition for
review with the Court of Appeals. (Sec. 22 of BP 129). The filing of a notice of appeal is proper if
the case was originally filed in the Regional Trial Court.
a) The Regional Trial Court of Manila rendered a judgment for the plaintiff Antonio
Santos and against defendant Benjamin Carandang. Defendant Benjamin Carandang
received the decision on July 15, 1988. On July 25, 1988, Benjamin filed a Motion for
Extension of Time for ten (10) days from July 30, 1988, within which to file a motion for
reconsideration. The Court failed to act on the motion for extension but Benjamin filed
on August 5, 1988 his Motion For Reconsideration within the ten-day extension
prayed for.
Antonio Santos, on August 15, 1988, filed a Motion for the Issuance of a Writ of
Execution alleging that the judgment had already become final and executory. Rule on the
Motion with reasons.
b) Capt. Basaya and twenty-four (24) sailors are the crew of F/b Carribbean, a fishing boat
chartered and operated since 1977 by Tuna, Inc. In 1985, Tuna, Inc. transferred its operation Page | 173
to a sister corporation, Eastship Corporation.
On June 28,1986, Capt. Basaya and his crew informed Eastship that they would not sail the
ship unless their economic demands, which they had presented previously to Tuna, Inc.,
were granted.
Eastship on July 8,1986 filed with the National Labor Relations Commission in Cebu a
Petition to declare the strike by Capt. Basaya and his crew illegal. In turn, the crew filed on
August 8,1986 a complaint for unfair labor practice against Tuna, Inc. and Eastship.
On July 9, 1986, a day after the filing of the illegal strike complaint, Tuna, Inc. also sought
the remedy of Replevin before the Regional Trial Court praying that Capt. Basaya and his
crew be' ordered to deliver the possession of the vessel to it as their possession was in
violation of its rights.
Which Court or Tribunal has jurisdiction over the issue of possession of the vessel? Explain.
Answer:
a. Motion for execution is granted. A motion for extension of time within which to file a motion for
reconsideration is not allowed, except in the Supreme Court. (Habaluyas Enterprises, Inc. vs.
Japson, 142 SCRA 208). Hence, the decision become final and executory on July 30, 1988.
b. The Regional Trial Court has jurisdiction over the issue of possession of the vessel. The replevin
case is not involved in the labor dispute. The question of who has the better right of possession is
outside the competence of labor tribunals and within the jurisdiction of civil courts. (Basaya, Jr. vs.
Militante, Dec. 11,1987)
g. Appeal from judgments or final orders of the CA
Q: If the penalty of reclusion temporal is increased on appeal by the Court of Appeals to

reclusion perpetua, what should the accused do to have his case reviewed by the Supreme
Court? (1992 Bar Question)
Suggested Answer:
The accused need not do anything because the Court of Appeals should render judgment imposing
the penalty of reclusion perpetua refrain from entering judgment and
certify the case to the Supreme Court for review. (Sec. 13 of Rule 124; People vs. Daniel 86 SCRA
511). If the Court of Appeals does not certify the case to the Supreme Court for review, the accused
should invite the attention of the Court of Appeals to its duty to do so.
h. Appeal from judgments or final orders of the CTA

xxxxxxxxxxxx
Judgment of the First Division of the Court of Tax Appeals (CTA) affirming the RTC
decision convicting his client for violation of the National Internal Revenue Code? (2009 Bar
Question)
SUGGESTED ANSWER:
By petition for review filed with the Court of Tax Appeals (CTA) en banc, within
30 days from receipt of the decision or ruling in question (Sec. 9[b], Rule 9, Rev. Rules of CTA).
Q: Mark filed with, the Bureau of Internal Revenue a complaint for refund of taxes paid, but
it was not acted upon. So, he filed a similar, complaint with the Court of Tax Appeals raffled
to one of its Divisions. Mark’s complaint was dismissed. Thus, he filed with the Court of
Appeals a petition for certiorari under Rule 65.
Does the Court of Appeals have jurisdiction over Mark’s petition? 2.5% (2006 Bar
Question)
SUGGESTED ANSWER:
No. A decision of a Division of the Court of Tax Appeals (CTA) is appealable within 15 days to
the CTA en banc [Sec. 18, Rep. Act No. 9282, as amended]. On the other hand, a party adversely
affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified
petition for review on certiorari pursuant to Rule
45 of the 1997 Rules of Civil Procedure [Sec. 19, Rep. Act No. 9282, as amended].
Rep. Act No. 9282 expanded the jurisdiction of the Court of Tax Appeals and elevated the same to
the level of a collegiate court equivalent to the rank of the Court of Appeals. Hence, the Court of
Appeals no longer has jurisdiction to review decisions of the Court of Tax Appeals en banc.
i. Review of final judgments or final orders of quasi-judicial agencies
Q: State the steps for bringing up to the Supreme Court: (1994 Bar Question)
xxx
a decision of the Board of Assessment Appeals of the Province of Rizal. x x x
Answer:
xxx
To bring up a decision of the Board of Assessment Appeals of the Province of Rizal to the
Supreme Court, it must first be brought to the Central Board of Assessment Appeals, after
which the decision of the CBAA may be brought to the Supreme Court In a special civil
action for certiorari
x x x
3. Relief from judgments, orders and other proceedings a. Grounds for availing of the
remedy
Q: True or False. If the answer is false, explain your answer briefly. x x x
A defendant who has been declared in default can avail of a petition for
relief from the judgment subsequently rendered in the case. (3%) (2007 Bar
FALSE. The remedy of petition for relief from judgment is available only when the judgment or
order in question is already final and executory, i.e., no longer appealable. As an extraordinary
remedy, a petition for relief from judgment may be availed only in exceptional cases where no
other remedy is available.
Q: May a judgment which has become final and executory still be questioned, attacked or set
aside? If so, how? If not, why not? Discuss fully. (1995 Bar Question)
Answer:
There are three ways by which a final and executory judgment may be attacked or set aside,
namely:
a) By petition for relief from judgment under Rule 38 on the grounds of fraud, accident,
mistake or excusable negligence within sixty days from learning of the Judgment and not more
than six months from its entry;
b) By direct action to annul or enjoin the enforcement of the judgment when the defect is not
apparent on its face or from the recitals contained in the Judgment;
c) By direct action, such as certiorari, or by a collateral attack against the judgment which is
void on its face or when the nullity of the Judgment is apparent by virtue of its own recitals.
[Macabingkil vs. People’s Homesite and Housing Corporation, 72 SCRA 326)
b. Time to file petition
Q: A money judgment against Ernesto Golem in favor of Geraldine Bolos was rendered by
the Regional Trial Court of Binan, Laguna. The decision was received by Atty. Jose Maco,
counsel for Golem, on March 4. 1990. Atty. Maco did not inform Golem about the judgment.
On March 10, 1990, Atty. Maco migrated with his entire family to California, U.S.A. Entry of
judgment was made on March 20,
1990, Golem learned of the decision only on June 17, 1990 when the court sheriff arrived at
his residence to levy on his properties. You are consulted by Golem on
July 31, 1990.
Assuming Golem has a. meritorious case, what legal remedies may you avail of in order to
protect his interests? Explain your answer. (1990 BarQuestion)
Answer:
I will file a petition for relief from judgment with the Regional Trial Court of Binan, Laguna. Such
a petition should be filed within 60 days after the petitioner learns of the judgment and not more
than 6 months after its entry. (Sec. 3 of Rule 38). Since the entry of judgment was made on March
20.1990, the period of 6 months had not yet expired on July 31, 1990 when I was consulted by
Golem.
While the period of 60 days is ordinarily counted from notice to the lawyer, this case may be an
exception because of the gross irresponsibility of Atty. Maco who did not inform Golem about the
judgment and migrated to California. Hence, the said period should be counted from July 17, 1990
when Golem actually learned of the Judgment. (PHHC v. Tiongco, 12 SCRA 471)
Inasmuch as a petition for relief from judgment is no longer available because of the lapse of the
period of 60 days counted from March 4, 1990 when the decision was
received by Atty. Maco, counsel for Golem, and notice to the lawyer is notice to the client
(Olivares v. Leola, 97 Phil. 253), the only available remedy is for Golem to file an action for
damages and disbarment proceedings against Atty. Maco (Sanchez v. Tupas,
158 SCRA 459).
c. Contents of petition
Q: Having obtained favorable judgment in his suit for a sum of money against Patricio,
Orencio sought the issuance of a writ of execution. When the writ was issued, the sheriff
levied upon a parcel of land that Patricio owns, and a date was set for the execution sale.
[a] How may Patricio prevent the sale of the property on execution? (2%) (2009
Bar Question)
SUGGESTED ANSWER:
Patricio may file a Petition for Relief with preliminary injunction (Rule 38), posting a bond
equivalent to the value of the property levied upon; or assail the levy as invalid if ground exists.
Patricio may also simply pay the amount required by the writ and the costs incurred therewith.
4. Annulment of judgments or final orders and resolutions a. Grounds for annulment
Q: Tom Wallis filed with the Regional Trial Court (RTC) a petition for Declaration of Nullity
of his marriage with Debi Wallis on the ground of psychological incapacity of the latter.
Before filing the petition, Tom Wallis had told Debi Wallis that he wanted the annulment of
their marriage because he was already fed up with her irrational and eccentric behaviour.
However, in the petition for declaration of nullity of marriage, the correct residential
address of Debi Wallis was deliberately not alleged and instead, the resident address of their
married son was stated. Summons was served by served by substituted service at the address
stated in the petition. For failure to file an answer, Debi Wallis was declared in default and
Tom Wallis presented evidence ex-parte. The RTC rendered judgment declaring the
marriage null and void on the ground of psychological incapacity of Debi Wallis. Three (3)
years after the RTC judgment was rendered, Debi Wallis got hold of a copy thereof and
wanted to have the RTC judgment reversed and set aside. If you are the lawyer of Debi
Wallis, what judicial remedy or remedies will you take? Discuss and specify the ground or
grounds for said remedy or remedies. (2014)
A: Debi Wallis may file a Petition for Annulment of Judgment under Rule 47 of the Rules of
Court, on the grounds of lack of jurisdiction, extrinsic fraud and denial of the right to due process
(Leticia Diona v. Romeo Balange, G.R. No. 173589, January 7, 2013). An action for annulment of
judgment is a remedy in law independent of the case where the
judgment sought to be annulled was rendered. The purpose of such action is to have the final and
executory judgment set aside so that there will be a renewal of litigation. It is resorted to in cases
where the ordinary remedies of new trial, appeal, petition for relief from judgment, or other
appropriate remedies are no longer available through no fault of the appellant and is base on
the grounds of extrinsic fraud, and lack of jurisdiction (Aleban v. Court of Appeals, G.R.
No. 156021, September 23, 2005). Relative thereto, the act of Tom Wallis in deliberately
keeping Debi Wallis away from the Court, by intentionally alleging a wrong address in the
complaint constitutes extrinsic fraud. Moreover, the failure of the Court to acquire jurisdiction over
the person of the respondent, being an indispensable party, necessitates the annulment of judgment
of the Regional Trial Court. Likewise, there is denial of the right to due process when Debi Wallis
was not given an opportunity to be heard in the case. Hence, the judgment rendered by the RTC
may be annulled by the Court of Appeals under Rule 47 of the Rules of Court. Moreover, it is
evident that the ordinary remedies of new trial, petition for relief or other appropriate remedies are
no longer available through no fault of Debi Wallis because she was able to obtain a copy of the
Decision only three (3) years after the same was rendered by the Trial Court. At any rate, the Court
erred in declaring the defendant in default because there is no default in a Petition for declaration of
nullity of marriage (Sec. 3, Rule 9). Thus, a Petition for Certiorari under Rule 65 of the Rules of
Court could have been an appropriate remedy within the reglementary period allowed by the Rules.
Q: What are the grounds for the annulment of a Judgment of the Regional Trial
Court (RTC)? [2%] (1998 Bar Question)
SUGGESTED ANSWER:
The grounds for annulment of judgment of the Regional Trial Court are extrinsic fraud and lack of
jurisdiction. (Sec. 2, Rule 4.7, 1997 Rules of Civil Procedure.)
Answer:
namely:
a. By petition for relief from judgment under Rule 38 on the grounds of fraud, accident, mistake or
excusable negligence within sixty days from learning of the Judgment and not more than six
months from its entry;
b. By direct action to annul or enjoin the enforcement of the judgment when the defect is not
c. By direct action, such as certiorari, or by a collateral attack against the judgment which
is void on its face or when the nullity of the Judgment is apparent by virtue of its own recitals.
[Macabingkil vs. People’s Homesite and Housing Corporation, 72 SCRA 326)
A decision of the Regional Trial Court adverse to Delia was received by her counsel on 13
January 1994. As Delia was leaving for Canada she forthwith instructed her counsel to
appeal because according to her she was prevented from fully presenting her case in the court
through fraudulent acts of the prevailing party. When Delia returned from abroad on 1
August 1994 she discovered that her case was not appealed as her counsel had died a day
after she left. Moreover, the other party has filed a motion for issuance of a writ of execution
which remains pending in court.
As the new counsel of Delia, what course or courses of action will you pursue to protect her
interest? Discuss fully. (1995 Bar Question)
Answer:
I would file an action for annulment of the judgment with the Court of Appeals on the ground of
extrinsic and collateral fraud because my client was prevented from fully presenting her case in
court through fraudulent acts of the prevailing party. (Sec. 9(2), BP 129)
Alternative Answer:
I would file a petition for relief under Rule 38 on the ground that my client’s failure to appeal on
time was due to the death of her lawyer one day after she left for Canada.
b. Period to file action

c. Effects of judgment of annulment
A. May an order denying the probate of a will still be overturned after the period to appeal
therefrom has lapsed? Why? (3%)
B. What should the court do if, in the course of intestate proceedings, a will is found and it is
submitted for probate? Explain. (2%)
SUGGESTED ANSWER:
A. Yes, an order denying the probate of a will may be overturned after the period to appeal
therefrom has lapsed. A petition for relief may be filed on the grounds of fraud, accident, mistake
or excusable negligence within a period of sixty (60) days after the
petitioner learns of the judgment or final order and not more than six (6) months after such
judgment or final order was entered [Rule 38, secs. 1 end 3; Soriano v. Asl, 100
Phil. 785 (1957)]. An action for annulment may also be filed on the ground of extrinsic fraud
within four (4) years from its discovery, and if based on lack of Jurisdiction, before
it is barred by laches or estoppel. (Rule 47, secs. 2 and 3)
B. If a will is found in the course of intestate proceedings and it is submitted for probate, the
intestate proceedings will be suspended until the will is probated. Upon the probate of the will, the
intestate proceedings will be terminated. (Rule 32, sec. 1).
5. Collateral attack of judgments
Answer:
namely:
1. By petition for relief from judgment under Rule 38 on the grounds of fraud, accident, mistake or
excusable negligence within sixty days from learning of the Judgment and not more than six
months from its entry;
2. By direct action to annul or enjoin the enforcement of the judgment when the defect is not
3. By direct action, such as certiorari, or by a collateral attack against the judgment which is
void on its face or when the nullity of the Judgment is apparent
by virtue of its own recitals. [Macabingkil vs. People’s Homesite and Housing
Corporation, 72 SCRA 326)
Q. Execution, satisfaction and effect of judgments

1. Difference between finality of judgment for purposes of appeal; for purposes of execution
2. When execution shall issue (Execution as a matter of right, Discretionary execution)
Q: Aldrin entered into a contract to sell with Neil over a parcel of land. The contract
stipulated a P500,000.00 down payment upon signing and the balance payable in twelve (12)
monthly installments of Pl00,000.00. Aldrin paid the down payment and had paid three (3)
monthly installments when he found out that Neil had sold the same property to Yuri for Pl.5
million paid in cash. Aldrin sued Neil for specific performance with damages with the RTC.
Yuri, with leave of court, filed an answer-in-intervention as he had already obtained a TCT
in his name. After trial, the court rendered judgment ordering Aldrin to pay all the
instalments due, the cancellation of Yuri's title, and Neil to execute a deed of sale in favor of
Aldrin. When the judgment became final and executory, Aldrin paid Neil all the installments
but the latter refused to execute the deed of sale in favor of the former. Aldrin filed a
"Petition for the Issuance of a Writ of Execution" with proper notice of hearing. The petition
alleged, among others, that the decision had become final and executory and he is entitled to
the issuance of the writ of execution as a matter of right. Neil filed a motion to dismiss the
petition on the ground that it lacked the required certification against forum shopping.
a. Should the court grant Neil's Motion to Dismiss? (2015)
A: NO. The motion to dismiss should be denied because the certification against forum shopping is
only required in a complaint or other initiatory pleading (Sec. 5, Rule 7; Arquiza v. Court of
Appeals, G.R. No. 160479, June 8, 2005). Since a petition for the issuance of the writ of execution
is not an initiatory pleading, it does not require a certification against forum shopping.
Q: Despite the issuance of the writ of execution directing Neil to execute the deed of sale in
favor of Aldrin, the former obstinately refused to execute the deed. What is Aldrin's remedy?
(2015)
A: Aldrin may move for the issuance of a court order directing the execution of the Deed of Sale
by some other person appointed by it.
Under Section 10, Rule 39 of the Rules of Court, if a judgment directs a party to execute a
conveyance of land or personal property, or to deliver deeds, other documents, or to perform, any
other specific act in connection therewith, and the party fails to comply within the time specified,
the court may direct the act to be done at the cost of the disobedient party by some other person
appointed by the court and the act when so done shall have like effect as if done by the party. If
real or personal property is situated within the Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the title of any party and vest it in others, which shall
have the force and effect of a conveyance executed in due form of law.
The phrase “some other person appointed by the court” may refer to the branch clerk of court,
sheriff or even the Register of Deeds, and their acts when done under such authority shall have the
effect of having been done by Neil himself.
Q: A files a case against B. While awaiting decision on the case, A goes to the United States to
work. Upon her return to the Philippines, seven years later, A discovers that a decision was
rendered by the court in her favor a few months after she had left. Can A file a motion for
execution of the judgment? Reason briefly. (5%) (2007 Bar Question)
SUGGESTED ANSWER:
On the assumption that the judgment had been final and executory for more than five (5) years as
of A’s return to the Philippines seven (7) years later, a motion for
execution of the judgment is no longer availing because execution of judgment by mere motion is
allowed by the Rules only within five (5) years from entry of judgment; thereafter, and within ten
(10) years from entry of judgment, an action to enforce the judgment is required.
xxx
The trial court rendered judgment ordering the defendant to pay the plaintiff moral and
exemplary damages. The judgment was served on the plaintiff on October 1, 2001 and on the
defendant on October 5, 2001. On October 8, 2001, the defendant filed a notice of appeal
from the judgment, but the following day, October 8, 2001, the plaintiff moved for the
execution of the judgment pending appeal. The trial court granted the motion upon the
posting by the plaintiff of a bond to indemnify the defendant for damages it may suffer as a
result of the execution. The court gave as a special reason for its order the imminent
insolvency of the defendant. Is the order of execution pending appeal correct? Why? (5%)
SUGGESTED ANSWER:
B. No, because awards for moral and exemplary damages cannot be the subject of execution
pending appeal. The execution of any award for moral and exemplary damages is dependent on the
outcome of the main case. Liabilities for moral and exemplary damages, as well as the exact
amounts remain uncertain and indefinite pending resolution by the Court of Appeals or Supreme
Court. [RCPI v. Lantin, 134
SCRA 395 (1985); International School, Inc. v. Court of Appeals, 309 SCRA 474 (1999)].
ALTERNATIVE ANSWER:
B. Yes, because only moral and exemplary damages are awarded in the judgment and they are not
dependent on other types of damages.
Moreover, the motion for execution was filed while the court had jurisdiction over the case and was
in possession of the original record. It is based on good reason which is the imminent insolvency of
the defendant. (Rule 39, sec. 2).
A default judgment was rendered by the RTC ordering D to pay P a sum of money. The
judgment became final, but D filed a petition for relief and obtained a writ of preliminary
injunction staying the enforcement of the judgment. After hearing, the RTC dismissed D's
petition, whereupon P immediately moved for the execution of the judgment in his favor.
Should P’s motion be granted? Why? (3%)
xxx
SUGGESTED ANSWER:
P’s immediate motion for execution of the judgment in his favor should be granted because
the dismissal of D’s petition for relief also dissolves the writ of preliminary injunction staying the
enforcement of the judgment, even if the dismissal is not yet final. [Golez v. Leonidas, 107 SCRA
187 (1981)].
Q: While the ejectment case was pending before the Municipal Court, Juan Santos
religiously deposits ail current rentals. In due time, the judge ordered Juan Santos to pay all
rents until he vacates the premises as well as attorney’s fees in the amount of P5.000.CX).
Maria Cruz moves for immediate execution on the ground that Juan Santos did not deposit
the attorney’s fees of P5.000.00 and that he did not put a supersedeas bond for the award.
Should the court grant immediate execution? Decide with reasons. (1990 Bar
Question)
Answer:
No, because a supersedeas bond covers only the rents unpaid up to this time of the judgment. Since
Juan Santos had deposited all current rentals while the ejectment case was pending before the
Municipal Court, a supersedeas bond was not required. (Once v. Gonzales, 76 SCRA 258).
Attorney’s fees are not required to be deposited in order to stay execution.
3. How a judgment is executed
a. Execution by motion or by independent action
Bar by prior judgment from conclusiveness of Judgment x x x
Answer:
Bar by prior judgment is the doctrine of res judicata, which bars a second action when there is
identity of parties, subject matter and cause of action. (Sec. 49 (b) of former Rule 39; Sec. 47 (b) of
new Rule 39). Conclusiveness of judgment precludes the relitigation of a particular issue in
another action between the same parties on a different cause of action. (Sec. 49 (c) of former
Rule 39; sec. 47 (cl of new Rule 39).
x x x
Distinguish between conclusiveness of judgment and bar by prior judgment. (2011
BAR)
(A) Conclusiveness of judgment bars another action based on the same cause;
bar by prior judgment precludes another action based on the same issue.
(B) Conclusiveness of judgment bars only the defendant from questioning it; bar by prior judgment
bars both plaintiff and defendant.
(C) Conclusiveness of judgment bars all matters directly adjudged; bar by prior
judgment precludes all matters that might have been adjudged.
(D) Conclusiveness of judgment precludes the filing of an action to annul such judgment; bar by
prior judgment allows the filing of such an action.
Q: A, a resident of Dagupan City, secured a favorable judgment in an ejectment case against

X. a resident of Quezon City, from the Metropolitan Trial Court of Manila. The judgment,
entered on 15 June 1991, had not as yet been executed.
In July 1996, A decided to enforce the judgment of the Metropolitan Trial Court of
Manila. What is the procedure to be followed by A in enforcing the Judgment?
With what court should A Institute the proceedings? (1997 Bar Question) Answer:
A can enforce the Judgment by another action reviving the judgment because it can no longer be
enforced by motion as the live-year period within which a Judgment may be enforced by motion
has already expired.. (Sec. 6 of Rule 39).
A may institute the proceedings in the Regional Trial Court in accordance with the rules of venue
because the enforcement of the Judgment is a personal action incapable of pecuniary estimation.
Alternative Answer:
(b) A may Institute the proceeding in a Metropolitan Trial Court which has Jurisdiction over the
area where the real property involved is situated. (See. 1 of Rule 4).
Q: “A" obtained a judgment against “B” for the payment of money. For failure to appeal, the
judgment became final on July 5, 1975 Writs of execution were returned unsatisfied, for the
sheriff was unable to find property of “B” subject to execution. On June 30, 1984, “A"
located some property of “B". Whereupon “A” immediately filed in July 1984 a motion for
the issuance of an alias writ of execution.
If you were the judge, will you grant the writ? Why? (1987 Bar Question)
Answer:
No, because a motion for the issuance of an alias writ of execution may be granted only within five
years from the entry of the judgment on July 5, 1975. It will be necessary for “A” to file an action
to enforce or revive the judgment before the lapse of ten years. (Sec. 6 of Rule 39)
b. Issuance and contents of a writ of execution
An example of a special judgment is one which orders: (2012 BAR)

a. the defendant to deliver and reconvey personal property to the plaintiff. b. defendant to execute
a Deed of Sale in favor of plaintiff.
c. defendant to paint a mural for the plaintiff. d. Defendant to vacate the leased premises.
Q: The lifetime of a writ of execution is sixty (60) days from its receipt by the officer required
to enforce it. Suppose on the 60th day of the life of the writ the sheriff levied on the property
of the judgment debtor and sold it only a month after. Is the sale valid? Explain. (1995 Bar
Question)
Answer:
The writ of execution may be levied at any time up to and including the last day of the writ. After
the writ has been levied on the property within the lifetime of the writ, it may be sold thereafter.
(Alagar us. Pio de Roda, 29 Phil. 129)
Alternative Answer:
The property may even be sold beyond the five-year period within which the judgment may be
executed on motion, but not beyond the ten-year period of prescription of judgments.
[Government vs. Echaus, 71 Phil. 318; Jalandoni us. Philippine National Bank, 105 SCRA 102)
Q: As the decision of the Regional Trial Court became final and executory on November
15,1987, plaintiff, the prevailing party, filed a motion for a writ of execution. The writ of
execution was issued on December 1, 1987.
Pursuant to the writ, the sheriff levied upon the house and lot of defendant and scheduled the
sale thereof for public auction on January 26, 1988. The auction sale was repeatedly
postponed upon request of defendant who, in the meantime, was making partial payments to
plaintiff.
The last scheduled auction sale was on November 3, 1992 but the same did not materialize
because of the request of the defendant which was granted by plaintiff on account of the
partial payment made by defendant on the date.
As there still remained an unpaid balance as of July 15. 1993, plaintiff filed a motion for the
issuance of an alias writ of execution of that date. Defendant opposed the motion on the
ground that more than five years had lapsed from the finality of the decision such that
plaintiffs remedy is to file a new action for revival of judgment.
Should the motion for issuance of an alias writ of execution be granted? Explain. (1993 Bar
Question)
Answer:
Yes, because the running of the five-year period from the date the decision became final and
executory on November 15, J 987. within which the judgment could be executed on motion, was
interrupted or suspended by the agreement of the parties to suspend enforcement of the judgment
on account of partial payments made by defendant. (Torralba us. De Los Angeles, 96 SCRA 69).
Alternative Answer:
Since there was already a levy on execution, there was- no need for an alias writ of execution.
Q: Enforcing a writ of execution issued by the Pasig Regional Trial Court in a civil action, the
sheriff attached several pieces of machinery and equipment found in defendant’s place of
business. Antonio, Sadalay filed with the sheriff an affidavit of third-party claim stating that
the attached properties belong to him, not to the defendant. (1991 Bar Question)
(a) Can Sadalay intervene in the case and ask the Pasig RTC to resolve his third- party
claim?
Answer:
No, Sadalay may not intervene in the case because intervention is allowed only before or during the
trial of the case. In this case there is already a final and executory Judgment. (Sec. 1 of Rule 12;
Bayer Phils. v.Agana. 63 SCRA 355) However, he may ask the Pasig RTC to resolve prelimi-narily
whether the sheriff acted rightly or wrongly in levying execution on the properties in question.
(Ong v. Tating, 149 SCRA 265)
If Sadalay decides to file a separate action in the Regional Trial Court in Makati to vindicate
his claim, may he validly obtain a writ of injunction from the Makati RTC to enjoin the sale
in execution of the levied properties?
Answer:
(b) Yes, because a judgment rendered in his favor by the Makati court declaring him to be the
owner of the properties levied on would not constitute interference with the
powers or processes of the Pasig Court which rendered the judgment to enforce the execution. If
that is so, an interlocutory order such as the writ of preliminary injunction against the sheriff, upon
a claim and prima facie showing of ownership, cannot be considered as such interference. (Abiera
v. CA, 45 SCRA 314; Sy v. Discaya, 181
SCRA 378)
c. Execution of judgments for money
Q: Antique dealer Mercedes borrowed P1, 000,000 from antique collector Benjamin.
Mercedes issued a postdated check in the same amount to Benjamin to cover the debt.
On the due date of the check, Benjamin deposited it but it was dishonored. As despite
demands, Mercedes failed to make good the check, Benjamin filed in January 2009 a
complaint for collection of sum of money before the RTC of Davao.
Mercedes filed in February 2009 her Answer with Counterclaim, alleging that before the
filing of the case, she and Benjamin had entered into a dacion enpago agreement in which her
vintage P1, 000,000 Rolex watch which was taken by Benjamin for sale on commission was
applied to settle her indebtedness; and that she incurred expenses in defending what she
termed a "frivolous lawsuit.. She accordingly prayed for P50, 000 damages.
xxx
Suppose there was no Counterclaim and Benjamin's complaint was not dismissed,
and judgment was rendered against Mercedes for P1, 000,000. The judgment became final
and executory and a writ of execution was correspondingly issued.
Since Mercedes did not have cash to settle the judgment debt, she offered her Toyota Camry
model 2008 valued at P1.2 million. The Sheriff, however, on request of Benjamin, seized
Mercedes 17th century ivory image of the La Sagrada Familia estimated to be worth over P1,
000,000. Was the Sheriffs action in order? (3%) (2010 Bar Question)
SUGGESTED ANSWER:
No, the Sheriff's action was not in order. He should not have listened to Benjamin, the
judgment obligee/creditor, in levying on the properties of Mercedes, the judgment obligor/debtor.
The option to immediately choose which property or part thereof may be levied upon,
sufficient to satisfy the judgment, is vested by law (Rule 39, Sec. 9 (b) upon the judgment obligor,
Mercedes, not upon the judgment obligee, Benjamin, in this case. Only if the judgment obligor
does not exercise the option, is the
Sheriff authorized to levy on personal properties if any, and then on the real properties if the
personal properties are insufficient to answer for the judgment.
Q: The writ of execution was returned unsatisfied. The judgment obligee subsequently
received information that a bank holds a substantial deposit belonging to the judgment
obligor. If you were the counsel of the judgment obligee, what steps would you take to reach
the deposit to satisfy the judgment? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
Since a writ of execution is valid for five years from its issuance, the sheriff should be informed
and requested to garnish or levy on execution the bank deposits belonging to the judgment
obligor (Sec. 9[c], Rule 39, Rules of Court). Then the judgment creditor move for a court
order directing the application of such bank deposit to the satisfaction of the judgment (Sec. 40,
Rule 39, Rules of Court).
Q: If the bank denies holding the deposit in the name of the judgment obligor but your
client’s informant is certain that the deposit belongs to the judgment obligor under an
assumed name, what is your remedy to reach the deposit? (3%) (2008
To reach the bank deposit belonging to the judgment obligor but under an assumed name, a motion
may be filed for a court order requiring the proper bank officer to appear in court for
examination under oath as to such bank deposit, and subsequently move for a court order
authorizing the filing of an action against such bank forthe recovery of the judgment obligor’s
deposit/interest therein and to forbid a transfer or other disposition of such deposit/interest within
120 days from notice of the order (Secs. 37 and 43, Rule 39, Rules of Court).
1. In an illegal detainer case the Municipal Trial Court ruled in favor of plaintiff- lessor who,
not being satisfied with the increase of rentals granted him by the court, appealed praying for
further increase thereof. Defendant-lessee did not appeal.
a) Can plaintiff-lessor, as appellant, move for execution pending appeal? Explain.

b) Can defendant-lessee, as appellee, validly resist the immediate
execution of the judgment? Explain.
2. In his appellee's brief, defendant-lessee not only controverted the issue on rentals raised by
plaintiff-lessor but also assailed the judgment of the trial court
on the ground that the same was totally contrary to the admitted evidence showing
him to be the owner of the property entitled to possession of the premises.
Can the appellate court consider the issue of ownership raised by the appellee? Discuss fully.
Answer:
1a) Yes, if defendant fails to pay or deposit the amount of rentals adjudged by the court within the
reglementary period. (City of Manila vs. CA, 149 SCRA 143)
1b) Yes, as long as he pays or deposits the amount of rental adjudged.
2. No, because a lessee he is estopped from raising the question of ownership. (Art.
1456, Civil Code; Sec. 2(b), Rule 131; Fije vs. CA, 233 SCRA 587)
Q: Writ of Execution were returned unsatisfied by the Sheriff on the execution of a final
judgment rendered in favor of A for a siim of money against B on June
5,1983. On June 30, 1988, A found some property in the name of B so that he
immediately filed on JuJy 1, 1988 a Motion for the Issuance of an.Alias Writ of
Execution. (1988 Bar Question)
a. As the judge, will you grant the Writ? Explain. '

b. May a judgment in a civil case be executed pending appeal? Explain. Answer:
The answer depends on when the judgment was entered. If the final judgment was entered on June
5,1983, I will not grant the Writ because more than five years had elapsed from the date of entry of
the judgment or from the date it became final and executory. However, if the final judgment
rendered on June 5, 1983 was entered or became final and executory after July 1, 1983, I would
grant the Writ. (Sec. 6 of Rule
39)
Alternative Answer:
(a) Since the question does not specify the date when the judgment was entered, which date is the
reckoning of the five-year period within which judgment may be executed by motion, the motion
may be granted on the assumption that the entry of judgment was made after July 1, 1983. In this
case, the five -year period from entry of judgment has not yet elapsed. Hence, the judgment can
still be executed by mere motion.
Committees Recommendation:
As the facts of the case given used the word rendered and not entered, the examinees should not be
blamed.
(b) Yes, upon good reasons to be stated in a special order. (Sec. 2 of Rule 39). The motion for
execution pending appeal should be filed before the perfection of the appeal. (Belgado vs. IAC, 14
SCRA 258)
Other Answer:
(a) (1) The motion for execution pending appeal may be granted upon good reasons by the
appellate court. (Philippine British Assurance Co. vs. IAC, 150 SCRA 520).
(2) A judgment in an action for injunction, receivership and accounting is executory pending
appeal, unless otherwise ordered by the court. (Sec. 4 of Rule 39)
(3) A judgment rendered against the defendant in an action of forcible entry or illegal detainer is
immediately executory. (Sec. 8 of Rule 70)
4. Properties exempt from execution
Q: A writ of execution was served by a sheriff upon defendant so that plaintiff may be placed
in possession of the property held by the former. The defendant refused to vacate and
surrender the premises to plaintiff. Can defendant be held for indirect contempt for
disobedience of, or resistance to a lawful writ issued by the court? Explain. (1995 Bar
Question)
Answer:
No, because it is the sheriff who must enforce the writ of execution for the delivery of property by
ousting therefrom the person against whom the Judgment is rendered and placing the judgment
creditor in possession. (Sec. 13. Rule 39). The writ of possession was directed to the Sheriff who
was to deliver the property to the plaintiff. The writ did not command the plaintiff to do anything,
hence he could not be held guilty of indirect contempt. [Barrele vs. Amila, 230 SCRA 219)
5. Proceedings where property is claimed by third persons a. In relation to third-party claim

in attachment and replevin
What should the court sheriff do if a third party serves on him an affidavit of claim covering
the property he had levied? (2011 BAR)
(A) Ask the judgment obligee to file a court-approved indemnity bond in favor of
the third-party claimant or the sheriff will release the levied property.
(B) Ask the judgment obligee to file a court-approved bond for the sheriff’s protection in case
he proceeds with the execution.
(C) Immediately lift the levy and release the levied property.
(D) Ask the third-party claimant to support his claim with an indemnity bond in favor of the
judgment obligee and release the levied property if such bond is filed.
Q: JK’s real property is being attached, by the sheriff in a civil action for damages against
LM.
JK claims that he is not a party to the case: that his property is not involved in said case: and
that he is the sole registered owner of said property. Under the Rules of Court, what must JK
do to prevent the Sheriff from attaching his property? (5%) (2000 Bar Question)
SUGGESTED ANSWER:
If the real property has been attached, the remedy is to file a third-party claim. The third-party
claimant should make an affidavit of his title to the property attached, stating the grounds of his
title thereto, and serve such affidavit upon the sheriff while the latter has possession of the attached
property, and a copy thereof upon the attaching party. (Sec. 14, Rule 57, 1997 Rules of Civil
Procedure.) The third-party claimant may also intervene or file a separate action to vindicate his
claim to the property involved and secure the necessary reliefs, such as preliminary injunction,
which will not be considered as interference with a court of coordinate Jurisdiction. (Ong v. Tating,
149
SCRA 265, (1987)
Q: Its decision in Civil Case No. 93-1000 entitled “Beta Inc. vs. Jaime dela Cruz" having
become final and executory, the RTC of Manila (Branch 21) issued a writ of execution for its
enforcement. The sheriff levied upon certain chattels and scheduled the auction sale thereof.
However, Jacinto Santamaria filed a third-party claim with the sheriff asserting that the
chattels levied upon by the latter belong to him and not to the judgment debtor (Jaime dela
Cruz). Because the Judgment creditor (Beta, Inc.) posted an indemnity bond in favor of the
sheriff, the latter refused to release the chattels and threatened to proceed with the auction
sale.
Consequently, Jacinto Santamaria filed an action against Beta Inc. and the sheriff in the RTC
of Bulacan (Branch 8), docketed as Civil Case No. 93-487, laying claim to the levied chattels
and seeking to enjoin the sheriff from proceeding with the auction sale thereof. As prayed for,
the Court in Civil Case No. 93-487 issued a temporary restraining order, followed by a writ
of preliminary injunction, by way of enjoining the sheriff from implementing the writ of
execution issued in Civil Case No. 93- 1000 against the levied chattels pending determination
of Jacinto Santamaria’s claim thereto .-
Beta.lnc. and the sheriff filed a motion to dismiss Civil Case No. 93-487 on the ground that
the court has no power to interfere with the judgment of the KIC of Manila (Branch 21), a
coordinate court.
How should the motion to dismiss be resolved? Explain. (1993 Bar Question)
Answer:
The motion to dismiss should be denied. A third-party claimant has the right to vindicate his claim
to the property by any proper action. It is the RTC of Bulacan which has the Jurisdiction to
determine the ownership of the property subject of the third-party claim. Obviously, a Judgment
rendered in favor of the third-party claimant would not constitute interference with the powers or
processes of the RTC of Manila. If that be so
— and it is property, being that of a stranger, is not subject to levy on execution — then an
interlocutory order such as a preliminary injunction, upon a claim and prima facie
showing of ownership by the claimant, cannot be considered as such interference
either. Moreover, the writ is issued against the sheriff, not against the court, [Abiera vs. Court of
Appeals. 45 SCRA 314)
6. Rules on Redemption
Q: Having obtained favorable judgment in his suit for a sum of money against Patricio,
Orencio sought the issuance of a writ of execution. When the writ was issued, the sheriff
levied upon a parcel of land that Patricio owns, and a date was set for the execution sale.
xxx
[b] If Orencio is the purchaser of the property at the execution sale, how much does he have
to pay? Explain. (2%) (2009 Bar Question)
SUGGESTED ANSWER:
Orencio, the judgment creditor should pay only the excess amount of the bid over the amount of
the judgment, if the bid exceeds the amount of the judgment.
[c] If the property is sold to a third party at the execution sale, what can Patricio do to
recover the property? Explain. (2%) (2009 Bar Question)
SUGGESTED ANSWER:
Patricio can exercise his right of legal redemption within 1 year from date of registration of the
certificate of sale by paying the amount of the purchase price with interest of 1% monthly, plus
assessment and taxes paid by the purchaser, with interest thereon, at the same rate.
7. Examination of judgment obligor when judgment is unsatisfied
Q: The plaintiff, a Manila resident, sued the defendant, a resident of Malolos, Bulacan, in the
RTC-Manila for a sum of money. When the sheriff tried to serve the summons with a copy of
the complaint on the defendant at his Bulacan residence, the sheriff was told that the
defendant had gone to Manila for business and would not be back until the evening of that
day. So, the sheriff served the
summons, together with a copy of the complaint, on the defendant's 18-year-old daughter,
who was a college student. For the defendant's failure to answer the complaint within the
reglementary period, the trial court, on motion of the plaintiff, declared the defendant in
default. A month later, the trial court rendered judgment holding the defendant liable for the
entire amount prayed for in the complaint.
A. After the judgment had become final, a writ of execution was issued by the court. As the
writ was returned unsatisfied, the plaintiff filed a motion for an order requiring the
defendant to appear before it and to be examined regarding his property and income.
How should the court resolve the motion? (2%)
B. Seven years after the entry of judgment, the plaintiff filed an action for its revival. Can the
defendant successfully oppose the revival of the judgment by contending that it is null and
void because the RTC-Manila did not acquire jurisdiction over his person? Why? (3%)
SUGGESTED ANSWER:
A. The RTC-Manila should deny the motion because it is in violation of the rule that no judgment
obligor shall be required to appear before a court, for the purpose of examination concerning his
property and income, outside the province or city in which such obligor resides. In this case the
judgment obligor resides in Bulacan. (Rule 39, sec. 36).
B. Yes. because the sheriff did not exert sufficient effort to serve summons personally on the
defendant within a reasonable time and hence the RTC-Manila did not acquire jurisdiction
over his person. [Rule 14, secs. 6 and 7; De Guzman v. Court of Appeals, 271 SCRA 728 (1997)].
ALTERNATIVE ANSWER:
A. No, the defendant is deemed to have waived the lack of jurisdiction over his person because he
did not raise this issue: 1) in opposing the motion to declare him in default;
2) in a motion for reconsideration of or appeal from the judgment by default; and 3) in
opposing the motion requiring him to appear and be examined regarding his property.
8. Effect of judgment or final orders
Q: BB files a complaint for ejectment In the Metropolitan Trial Court on the ground
of non-payment of rentals against JJ. After two days, JJ files In the Regional Trial Court a
complaint against BB for specific performance to enforce the option to purchase the parcel of
land subject of the ejectment case. What is the effect of JJ’s action on BB’s complaint?
Explain. (5%) (2000 Bar Question)
SUGGESTED ANSWER:
There is no effect. The ejectment case involves possession de facto only. The action to enforce the
option to purchase will not suspend the action of ejectment for non-payment of rentals. [Wilmon
Auto Supply Corp. v. Court of Appeals, 208 SCRA 108 [1992]).
9. Enforcement and effect of foreign judgments or final orders
What defenses may be raised in a suit to enforce a foreign judgment? (2011 BAR)
(A) That the judgment is contrary to Philippine procedural rules.
(B) None, the judgment being entitled to full faith and credit as a matter of general comity among
nations.
(C) That the foreign court erred in the appreciation of the evidence.
(D) That extrinsic fraud afflicted the judgment.
Q: What are the rules on the recognition and enforcement of foreign judgments in our
courts? (6%) (2007 Bar Question)
SUGGESTED ANSWER:
Judgments of foreign courts are given recognition in our courts thus:
In case of judgment upon a specific thing, the judgment is conclusive upon the title to the thing,
unless otherwise repelled by evidence of lack of jurisdiction, want of due notice to the party,
collusion, fraud, or clear mistake of law or fact (Rule 39, Sec. 48 [a], Rules of Court); and
In case of judgment against a person, the judgment is presumptive evidence of a right as between
the parties and their successors in interest by subsequent title, unless otherwise repelled by
evidence on grounds abovestated (Rule 39, Sec. 48 [b], R,ules of Court).
However, judgments of foreign courts may only be enforced in the Philippines through an action
validly heard in a Regional Trial Court. Thus, it is actually the judgment of the Philippine
court enforcing the foreign judgment that shall be executed.
Q: Can a foreign arbitral award be enforced in the Philippines under those rules? Explain
briefly. (2%)(2007 Bar Question)
SUGGESTED ANSWER:
No, a foreign arbitral award cannot be enforced in the Philippines under the rules on the
recognition and enforcement of foreign judgments above-stated. A foreign arbitral award is
not a foreign judgment, and pursuant to the Alternative Dispute Resolution Act of 2004 (R.A. No.
9285), in relation to 1958 New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, the recognition and enforcement of the
foreign arbitral awards shall be in accordance with the rules of procedure to be promulgated by the
Supreme Court. At present, the Supreme Court is yet to promulgate rules of procedure on the
subject matter.
Q: How about a global injunction issued by a foreign court to prevent dissipation of funds
against a defendant therein who has assets in the Philippines? Explain briefly. (2%)(2007 Bar
Question)
SUGGESTED ANSWER:
Yes, a global injunction issued by a foreign court to prevent dissipation of funds against a
defendant who has assets in the Philippines may be enforced in our jurisdiction, subject to our
procedural laws.
As a general rule, no sovereign is bound to give effect within its dominion to a judgment or order
of a tribunal of another country. However, under the rules of comity, utility and convenience,
nations have established a usage among civilized states by which final judgments of foreign courts
of competent jurisdiction are reciprocally respected and rendered efficacious under certain
conditions that may vary in different countries (St. Aviation Services Co., Pte.,Ltd. v. Grand
International Airways, Inc., 505 SCRA 30 [2006]; Asiavest Merchant Bankers (M) Berhad v. Court
of Appeals, 361 SCRA 489 [2001]).
Q: Under Article 1144 of the New Civil Code, an action upon a judgment must be brought
within 10 years from the time the right of action accrues.
Is this provision applicable to an action filed in the Philippines to enforce a foreign

judgment? Explain. (2005 Bar Question)
SUGGESTED ANSWER:
Article 1144 of the Civil Code is applicable because it is merely an action in a domestic court to
enforce a foreign judgment. Foreign judgments should be treated in the same manner as domestic
judgments.
Article 1144 of the Civil Code which requires that an action upon a judgment (though without
distinction) must be brought within 10 years from the time the right of action accrues, does not
apply to an action filed in the Philippines to enforce a foreign judgment. While we can say that
where the law does not distinguish, we should not distinguish, still the law does not evidently
contemplate the inclusion of foreign judgments. A domestic judgment may be enforced by motion
within five years and by action within the next five years. That is not the case with respect to
foreign judgments which cannot be enforced by mere motion. A foreign judgment, in fact,
is merely
presumptive evidence of a right between the parties and their successors in interests. (Van Dorn v.
Romillo, Jr., 139 SCRA 139 [19851). The word “judgment” refers to one mentioned ill Section 1,
Rule 36, which is filed with the clerk of court. If no period is fixed in our law, the period of
prescription is five (5) years under Art. 1149 of the Civil Code.
1. Give three instances when a Philippine court can take judicial notice of a foreign law.
2. How do you prove a written foreign law?
3. Suppose a foreign law was pleaded as part of the defense of defendant but no evidence was
presented to prove the existence of said law, what is the presumption to be taken by the court
as to the wordings of said law?
Answer:
1. The three instances when a Philippine court can take judicial notice of a foreign law are: (1)
when the Philippine courts are evidently familiar with the foreign law (Moran, Vol. 5, p. 34,1980
edition): (2) when the foreign law refers to the law of nations (Sec. 1 of Rule 129) and, (3) when it
refers to a published treatise, periodical or pamphlet on the subject of law if the court takes judicial
notice of the fact that the writer thereof is recognized in his profession or calling as expert on the
subject (Sec. 4(5, Rule 130).
2. A written foreign law may be evidenced by an official publication thereof or by a copy attested
by the officer having the legal custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such officer has the custody, if the office
in which the record is kept is in a foreign country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office (Sec. 24, Rule 132, Zalamea v. CA, 228 SCRA
23).
3. The presumption is that, the wordings of the foreign law are the same as the local law.
(Northwest Orient Airlines v. Court of Appeals. 241 SCRA 192; Moran, Vol. 6, page
34, 1980 edition; Urn v. Collector of Customs, 36 Phil. 472). This is known as the processual
presumption.
Alternative Answers:
1. The Philippine court can also take judicial notice of a foreign law: 1) when the foreign statute is
accepted by the Philippine government. (Rep. v. Guanzon, 61 SCRA 360); 2) when a foreign
judgment containing foreign law is recognized for enforcement (Sec. 48, Rule 39); and 3) if it
refers to common law doctrines and rules from which many of our laws were derived (Alzua v.
Johnson (21 Phil. 308]).
The effect of the non-joinder of a necessary
2. A written foreign law is proved by presenting party may be stated as follows: The court may
a published treatise, periodical or pamphlet on order the inclusion of an omitted necessary party
said foreign law if the court may take judicial if jurisdiction over his person may be obtained.
notice, or a witness expert in the subject The failure to comply with the order for his
inclusion without justifiable cause to a waiver of
testifies, that the writer of the statement in the claim against such party. The court may
the treatise, periodical or pamphlet is proceed with the action but the judgment
recognized in his profes-sion or calling as expert rendered shall be without
in the subject (Sec. 46, Rule 130).
CIVIL PROCEDURE
Actions; Cause of Action vs. Action (1999)
Distinguish action from cause of action. (2%)
SUGGESTED ANSWER:
An ACTION is one by which a party sues

another for the enforcement or protection of
a right, or the prevention or redress of a
wrong. (Sec. 3(A), Rule )
A CAUSE OF ACTION is the act or

omission by which a party violates a right of
another. (Sec. 2, Rule 2 of the 1997 Rules)
An action must be based on a cause of
action. (Sec. 1, Rule 2 of the 1997 Rules)
Actions; Cause of Action; Joinder & Splitting

(1998)
Give the effects of the following:
1. Splitting a single cause of action: and (3%|
The effect of splitting a single cause of action is

found in the rule as follows: If two or more suits
are instituted on the basis of the same cause of
action, the filing of one or a judgment on the
merits in any one is available as a ground for the
dismissal of the others. (Sec. 4 of Rule 2)
2. Non-joinder of a necessary party. [2%]

Actions; Cause of Action; Joinder of Action However, Perry failed to pay his loan. Perry also
(1999) rejected Ricky and Marvin's proposal to partition the
property. Ricky filed a complaint against Perry and
a. What is the rule on joinder of causes of Marvin in the RTC of Pasay City for the partition of
action? (2%) the property. He also incorporated in his complaint
his action against Perry for the collection of the
The rule on JOINDER OF CAUSES OF latter's P100,000.00 loan, plus interests and
ACTION is that a party may in one pleading attorney's fees.
assert, in the alternative or otherwise join
as many causes of action as he may have
against an opposing party, provided that the
rule on joinder of parties is complied with;
1.] the joinder shall not include special State with reasons whether it was proper for Ricky
civil actions or actions governed by special to join his causes of action in his complaint for
rules, but partition against Perry and Marvin in the RTC of
Pasay City. (5%)
may include causes of action pertaining to
different venues or jurisdictions provided SUGGESTED ANSWER:
one cause of action falls within the
jurisdiction of a RTC and venue lies therein;
and
2.] the aggregate amount claimed shall

be the test of jurisdiction where the
claims in all the causes of action are
principally for the recovery of money. (Sec.
5, Rule 2 of the 1997 Rules)
b. A secured two loans from B? one for

P500,000.00 and the other for P1,000,000.00,
payable on different dates. Both have fallen due. Is
B obliged to file only one complaint against A for
the recovery of both loans? Explain. (2%)
No. Joinder is only permissive since the

loans are separate loans which may be
governed by the different terms and
conditions. The two loans give rise to two
separate causes of action and may be the
basis of two separate complaints.
Actions; Cause of Action; Joinder of Action

(2005)
Perry is a resident of Manila, while Ricky and

Marvin are residents of Batangas City. They are the
coowners of a parcel of residential land located in
Pasay City with an assessed value of P100,000.00.
Perry borrowed P100,000.00 from Ricky which he
promised to pay on or before December 1, 2004.
available as a ground for the dismissal of the others.
(Sec. 4, Rule
Remedial Law Bar Examination Q & A (1997-2006)
2)
It was not proper for Ricky to join his causes of
action against Perry in his complaint for partition
against Perry and Marvin. The causes of action
may be between the same parties, Ricky and Perry, b. The motion to dismiss should be granted. When B
with respect to the loan but not with respect to the commenced suit to collect on the promissory note,
partition which includes Marvin. The joinder is he waived his right to foreclose the mortgage. B split
between a partition and a sum of money, but his cause of action.
PARTITION is a special civil action under Rule
69, which cannot be joined with other causes of
action. (See. 5[b], Rule 2,) Also, the causes of action Actions; Cause of Action; Splitting (2005)
pertain to different venues and jurisdictions. The
case for a sum of money pertains to the municipal Raphael, a warehouseman, filed a complaint against
court and cannot be filed in Pasay City because the V Corporation, X Corporation and Y Corporation to
plaintiff is from Manila while Ricky and Marvin are compel them to interplead. He alleged therein that
from Batangas the three corporations claimed title and right of
possession over the goods deposited in his
City. (Sec. 5, Rule 2,) warehouse and that he was uncertain which of them
was entitled to the goods. After due proceedings,
judgment was rendered by the court declaring that X
Actions; Cause of Action; Splitting (1999) Corporation was entitled to the goods. The decision
became final and executory.
a) What is the rule against splitting a cause of
action and its effect on the respective rights of the
parties for failure to comply with the same? (2%)
b) A purchased a lot from B for Pl,500,000.00.

He gave a down payment of P500,000, signed a
promissory note payable thirty days after date, and
as a security for the settlement of the obligation,
mortgaged the same lot to B. When the note fell due
and A failed to pay, B commenced suit to
recover from A the balance of P1,000,000.00.
After securing a favorable judgment on his claim,
B brought another action against A before the
same court to foreclose the mortgage. A now files a
motion to dismiss the second action on the ground of
bar by prior judgment. Rule on the motion. (2%)
SUGGESTED ANSWER:
a. The rule against splitting a cause of action and its
effect are that if two or more suits are instituted on

the basis of the same cause of action, the filing of
one or a judgment upon the merits in any one is
by: sirdondee@gmail.com Page 14 of 66 Raphael
filed a complaint against X Corporation for the
payment of P100,000.00 for storage charges and After trial, the court rendered judgment dismissing
other advances for the goods. X Corporation filed the petition on the ground that Rolando failed to
a motion to dismiss the complaint on the ground prove the psychological incapacity of his wife. The
of res judicata. X Corporation alleged that Raphael judgment having become final, Rolando filed
should have incorporated in his complaint for another petition, this time on the ground that his
interpleader his claim for storage fees and advances marriage to Carmela had been celebrated without a
and that for his failure he was barred from license. Is the second action barred by the judgment
interposing his claim. Raphael replied that he could in the first? Why? (2%)
not have claimed storage fees and other advances in
his complaint for interpleader because he was not yet
certain as to who was liable therefor. Resolve the SUGGESTED ANSWER:
motion with reasons. (4%)
No, the second action is not barred by the judgment
in
the first because they are different causes of action.

The first is for annulment of marriage on the ground
SUGGESTED ANSWER:
of psychological incapacity under Article 36 of the
The motion to dismiss should be granted. Raphael Family Code, while the second is for declaration of
should nullity of the marriage in view of the absence of a
basic requirement, which is a marriage license. [Arts,
have incorporated in his complaint for interpleader 9 & 35(3), Family Code]. They are different causes
his claim for storage fees and advances, the amounts of action because the evidence required to prove
of which were obviously determinable at the time of them are not the same. [Pagsisihan v. Court of
the filing of the complaint. They are part of Appeals, 95 SCRA 540
Raphael's cause of action which he may not be split.
Hence, when the warehouseman asks the court to (1980) and other cases].
ascertain who among the defendants are entitled to
the goods, he also has the right to ask who should
pay for the storage fees and other related expenses. Actions; Counterclaim (2002)
The filing of the interpleader is available as a
ground for dismissal of the second case. (Sec. 4,
Rule 2,) It is akin to a compulsory counterclaim
which, if not set up, shall be barred. (Sec. 2, Rule
9, ; Arreza v. Diaz, G.R.
No. 133113, August 30, 2001)
Actions; Cause of Actions; Motion to Dismiss;

bar by prior judgment (2002)
Rolando filed a petition for declaration of the nullity

of his marriage to Carmela because of the alleged
psychological incapacity of the latter.
by: sirdondee@gmail.com Page 15 of 66 case. Is the
stand
The plaintiff sued the defendant in the RTC for on the plaintiff’s lot. In his answer, the defendant
of EE Industries sustainable? Explain. [2%] denied the plaintiff’s claim and alleged that it was
the plaintiff who in fact had encroached on his
damages allegedly caused by the latter’s (defendant’s) land. Accordingly, the defendant
encroachment counterclaimed against the plaintiff for damages
resulting from the alleged encroachment on his lot.
The plaintiff filed an ex parte motion for extension
of time to answer the defendant’s counterclaim, but
the court denied the motion on the ground that it
should have been set for hearing. On the defendant’s
motion, therefore, the court declared the plaintiff in
default on the counterclaim. Was the plaintiff validly
declared in default? Why? (5%)
SUGGESTED ANSWER:
No, the plaintiff was not validly declared in default.

A
motion for extension of time to file an answer may

be filed ex parte and need not be set for hearing.
[Amante vs. Sunga, 64 SCRA 192 (1975)].
ALTERNATIVE ANSWER:
The general rule is that a counterclaim must be
answered within ten (10) days from service. (Rule

11, sec.
4). However, a counterclaim that raises issues which

are deemed automatically joined by the allegations
of the Complaint need not be answered.
[Gojo v. Goyala, 35 SCRA 557 (1970)].
In this case, the defendant’s counterclaim is a

compulsory counterclaim which arises out or is
connected with the transaction and occurrence
constituting the subject matter of the plaintiff’s
claim. It raises the same issue of who encroached on
whose land. Hence, there was no need to answer the
counterclaim.
Actions; Counterclaim vs. Crossclaim (1999)

a) What is a counterclaim? (2%) b) Distinguish a SUGGESTED ANSWER:
counterclaim from a crossclaim. (2%)
a) A COUNTERCLAIM is any claim which
a
c) A, who is engaged in tile installation defending party may have against an opposing party.
business, was sued by EE Industries for breach of
contract for installing different marble tiles in its (Sec. 6, Rule 6)
offices as provided in their contract. Without
filing any motion to dismiss, A filed its
Answer with Counterclaim theorizing that EE b) A counterclaim is distinguished from a
Industries has no legal capacity to sue because it is CROSSCLAIM in that a cross-claim is any claim by
not a duly registered corporation. By way of one party against a co-party arising out of
counterclaim, A asked for moral and actual damages the transaction or occurrence that is the subject
as her business depleted as a result of the withdrawal matter either of the original action or of a
and cancellation by her clients of their contracts due counterclaim therein. A counterclaim is against an
to the filing of the case. The case was dismissed opposing party while a cross-claim is against a co-
after the trial court found that EE Industries is not a party. (Sec. 8, Rule 6)
registered corporation and therefore has no legal
capacity to sue. However, it set a date for the
reception of evidence on A's counterclaim. EE
Industries opposed on the ground that the
counterclaim could no longer be prosecuted in view
of the dismissal of the main c) No, because if no motion to dismiss has
been filed, any of the grounds for dismissal provided
in the Rules may be pleaded as an affirmative
defense in the answer which may include a
counterclaim. This is what A did by filing an
Answer alleging the lack of legal capacity of EE
Industries to sue because it is not a duly registered
corporation with a counterclaim for damages. The
dismissal of the complaint on this ground is
without prejudice to the prosecution of the
counterclaim in the same action because it is a
compulsory counterclaim. (Sec. 6 of Rule 16.)
Actions; Cross-Claims; Third Party Claims

(1997)
B and C borrowed P400,000.00 from A.

The promissory note was executed by B and C in a
Joint and several capacity. B, who received the
money from A, gave C P200,000.00. C, in turn,
loaned P100,000.00 out of the P200,000.00 he
received to D. a) In an action filed by A against B
and C with the
RTC of Quezon City, can B file a cross-claim

against C
for the amount of P200,000.00? b) Can C file a third
party complaint against D for the amount of P
100,000.00? contribution in respect to his opponent's claim. (Sec.
11 of Rule 6)
SUGGESTED ANSWER:
Actions; Derivative Suit vs. Class Suit (2005)

(a) Yes. B can file a cross-claim against C for the Distinguish a derivative suit from a class suit.
amount of 200,000.00 given to C. A cross-claim is a SUGGESTED ANSWER:
claim filed by one party against a co-party arising
out of the transaction or occurrence that is the A DERIVATIVE SUIT is a suit in equity that is
subject matter of the original action or a filed
counterclaim therein and may include a claim that
the party against whom it is asserted is or may be by a minority shareholder in behalf of a corporation
liable to the cross-claimant for all or part of a to redress wrongs committed against it, for which
claim asserted against the cross- claimant. (Sec. 8 the directors refuse to sue, the real party in interest
Rule 6) being the corporation itself (Lint v. Lim-Yu, G.IL
No. 138343, February 19, 2001), while a
(b) No, C cannot file a third-party complaint against CLASS SUIT is filed regarding a controversy of
D because the loan of P100,000 has no connection common or general interest in behalf of many
with the opponent's claim. C could have loaned the persons so numerous that it is impracticable to join
money out of other funds in his possession. all as parties, a number which the court finds
ALTERNATIVE ANSWER: sufficiently representative who may sue or defend
for the benefit of all. (Sec. 12, Rule 3) It is worth
Yes, C can file a third-party complaint against noting that a derivative suit is a representative suit,
D just like a class suit.
because the loan of 100,000.00 was taken out of the
P200,000 received from B and hence the loan seeks Actions; Filing; Civil Actions & Criminal Action
(2005) While cruising on a highway, a taxicab
driven by Mans hit an electric post. As a result
thereof, its passenger, Jovy, suffered serious injuries.
Mans was subsequently charged before the
Municipal Trial Court with reckless imprudence
resulting in serious physical injuries.
Thereafter, Jovy filed a civil action against Lourdes,

the owner of the taxicab, for breach of contract, and
Mans for quasi-delict. Lourdes and Mans filed a
motion to dismiss the civil action on the ground of
litis pendentia, that is, the pendency of the civil
action impliedly instituted in the criminal action for
reckless imprudence resulting in serious physical
injuries. Resolve the motion with reasons. (4%)
SUGGESTED ANSWER:
The motion to dismiss should be denied. The action

for breach of contract against the taxicab owner by: sirdondee@gmail.com Page 16 of 66
cannot be barred by the criminal action against the
taxicab driver, although the taxicab owner can be 1 Legal interest against both; or
held subsidiarily liable in the criminal case, if the
driver is insolvent. On the other hand, the civil 2 So situated as to be adversely affected by a
action for quasi- delict against the driver is an distribution or other disposition or property in the
independent civil action under Article 33 of the Civil custody of the court or of an officer thereof.
Code and Sec. 3, Rule 111 of the Rules of Court, 3 Intervention will not unduly delay or
which can be filed separately and can proceed prejudice the adjudication of the rights or original
independently of the criminal action and regardless parties;
of the result of the latter. (Samson v. Daway, G.R.
Nos. 160054-55, July 21, 4 Intervenor’s rights may not be fully
protected
2004)
in a separate proceedings.
(Acenas II v. Court of Appeals, 247 SCRA 773

Actions; Intervention; Requisites (2000) [1995]; Sec.
What are the requisites for an intervention by a non- 1, Rule 19, 1997 Rules of Civil Procedure.)
party in an action pending in court? (5%)
SUGGESTED ANSWER:
Actions; Real Actions & Personal Actions (2006)
The requisites for intervention are:
What do you mean by a) real actions; and b)
1 Legal interest in the matter in a controversy; personal action? (2%)
or
SUGGESTED ANSWER:
a. REAL ACTIONS are actions affecting title to or
possession of real property or an interest therein
(Fortune Motors, Inc. v. CA, G. R. No. 76431,

October 16,
1989; Rule 4, Sec. 1).
b. All other actions are PERSONAL ACTIONS

(Rule
4, Section I) which include those arising from privity

of contract.
Actions; Survives Death of the Defendant (2000)
PJ engaged the services of Atty. ST to represent him

in a civil case filed by OP against him which was
docketed as Civil Case No. 123. A retainership
agreement was executed between PJ and Atty.
ST whereby PJ promised to pay Atty. ST a
retainer sum of P24,000.00 a year and to transfer the 2 Legal interest in the success of either of the
ownership of a parcel of land to Atty. ST after parties;
presentation of PJ’s evidence. PJ did not comply
with his undertaking. Atty. ST filed a case against PJ or
which was docketed as Civil Case No. 456. During
the trial of Civil Case No. 456, PJ died.
1 Is the death of PJ a valid ground to dismiss

the money claim of Atty. ST in Civil Case No. 456?
Explain. (2%)
2 Will your answer be the same with respect

to the real property being claimed by Atty. ST in
Civil Case No. 456? Explain (2%)
SUGGESTED ANSWER:
1 No. Under Sec. 20, Rule 3, 1997 Rules of

Civil
Procedure, when the action is for recovery of money

arising from contract, express or implied, and the
defendant dies before entry of final judgment in the
court in which the action is pending at the time of
such death, it shall not be dismissed but shall
instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the
plaintiff shall be enforced in the manner especially
provided in the Rules for prosecuting claims against
the estate of a deceased person.
2 Yes, my answer is the same. An action

to recover real property in any event survives the
death of the defendant. (Sec. 1, Rule 87, Rules
of Court).
However, a favorable judgment may be enforced
in accordance with Sec. 7(b) Rule 39 (1997 Rules of

Civil Procedure) against the executor or
administrator or successor in interest of the
deceased.
Appeals; Period of Appeal; Fresh Period Rule

(2003) Defendant X received an adverse Decision of
the RTC in an ordinary civil case on 02 January
2003. He filed a Notice of Appeal on 10 January
2003. On the other hand, plaintiff A received the
same Decision on 06
January 2003 and, on 19 January 2003, filed a

Motion
for Reconsideration of the Decision. On 13

January
2003, defendant X filed a Motion withdrawing his

notice of appeal in order to file a Motion for New
Trial which he attached. On 20 January 2003, the
court denied A’s Motion for Reconsideration and
X’s Motion to Withdraw Notice of Appeal.
Plaintiff A received the Order denying his Motion
for Reconsideration on 03
February 2003 and filed his Notice of Appeal on 05
February 2003. The court denied due course to A’s

Notice of Appeal on the ground that he period to
appeal had already lapsed. 6%
(a) Is the court’s denial of X’s Motion to Withdraw
Notice of Appeal proper?
(b) Is the court’s denial of due course to A’s appeal
correct?
SUGGESTED ANSWER:
(a) No, the court’s denial of X’s Motion to Withdraw
Notice of Appeal is not proper, because the period of

appeal of X has not yet expired. From January 2,
2003 when X received a copy of the adverse
decision up to January 13, 2003 when he filed
his withdrawal of appeal and Motion for New Trial, by: sirdondee@gmail.com Page 17 of 66 allow a
only ten (10) days had elapsed and he had fifteen FRESH PERIOD of 15 days within which to file
(15) days to do so. the notice of appeal in the RTC, counted from
receipt of the order dismissing a motion for a new
trial or motion for reconsideration. [Neypes et. al.
vs.
CA, G.R. No. 141524, September 14, 2005]

(b) No, the court’s denial of due course to A’s
appeal is not correct because the appeal was
taken on time. From January 6, 2003 when A
received a copy of the decision up to January 19, Certiorari; Mode of Certiorari (2006)
2003 when he filed a Motion for Reconsideration,
only twelve (12) days had elapsed. Consequently, he Explain each mode of certiorari:
had three (3) days from receipt on February 3, 2003
of the Order denying his Motion for Reconsideration 1. As a mode of appeal from the Regional
within which to appeal. He filed is notice of Trial Court or the Court of Appeals to the
appeal on February 5, 2003, or only two (2) days Supreme Court. (2.5%)
later. SUGGESTED ANSWER:
ALTERNATIVE ANSWER: Certiorari as a mode of appeal is governed by Rule
Since A’s Motion for Reconsideration was filed 45
on of the Rules of Court which allows appeal from
January 19, 2003 and it was denied on January 20, judgment, final order of resolution of the Court of
Appeals, Sandiganbayan, the RTC or other courts
2003, it was clearly not set for hearing with at least whenever authorized by law to the Supreme Court
three days’ notice. Therefore, the motion was by verified petition for review raising only questions
pro forma and did not interrupt the period of appeal of law distinctly set forth.
which expired on January 21, 2003 or fifteen (15)
days after notice of the decision on January 6, 2003.
2. As a special civil action from the
Regional Trial Court or the Court of Appeals to
NOTE: To standardize the appeal periods provided the Supreme Court. (2.5%)
in the Rules and to afford litigants fair opportunity to
appeal their cases, the Court deems it practical to SUGGESTED ANSWER:
Certiorari as a Special Civil Action is governed by

Rule
65 of the Rules of Court when an aggrieved party

may file a verified petition against a decision, final
order or resolution of a tribunal, body or board that
has acted without or in excess of its jurisdiction or
grave abuse of discretion amounting to lack or
excess of jurisdiction, when there is no appeal or any
other plain, speedy and adequate remedy in the
ordinary course of law.
3. As a mode of review of the decisions of
the National Labor Relations Commission and
the Constitutional Commissions. (2.5%)
to the Supreme Court from the Court of Appeals,

Sandiganbayan and the RTC under Rule
45.
SUGGESTED ANSWER:
Certiorari as a mode of review of the decision of the
NLRC is elevated to the Court of Appeals under

Rule
65, as held in the case of St. Martin's Funeral

Home v. NLRC, G.R. No. 130866, September 16,
1998. Certiorari as a mode of review from the
Commission on Audit (COA) and COMELEC is
elevated to the Supreme Court within 30 days from
notice of the judgment, decision or final order or
resolution sought to be reviewed, as provided for
under the Rule 64 of the
1997 Rules of Civil Procedure. In the case of the

Civil Service Commission (CSC), review of its
judgments is through petitions for review under Sec.
5 of Rule 43 of the 1997 Rules of Civil Procedure.
Certiorari; Rule 45 vs. Rule 65 (1998)
Differentiate certiorari as an original action from

certiorari as a mode of appeal. |3%]
SUGGESTED ANSWER:
Certiorari as an original action and certiorari as a

mode
of appeal may be distinguished as follows:
1. The first is a special civil action under Rule
65 of the Rules of Court, while the second is an

appeal
by: sirdondee@gmail.com Page 18 of 66 was issued 1 The first can be filed only on the grounds of
against C, who being B's sole heir, acquired the lack or
property. Did the failure of counsel X to inform the
court of B's death constitute direct contempt? (2%) excess of jurisdiction or grave abuse of discretion
tantamounSt UGGESTED ANSWER:
to lack or excess of jurisdiction, while the second is

based onNo. It is not direct contempt under Sec. 1 of
Rule 71,
the errors of law of the lower court. but it is indirect contempt within the purview of Sec
3
2 The first should be filed within sixty (60) notice of the judgment. (Sec. 2, Rule 45)
days fromof Rule 71. The lawyer can also be the
subject of notice of the judgment, order or
resolution sought to bedisciplinary action. (Sec.
16, Rule 3)
assailed (Sec. 4. Rule 65), while the second should

be filed within
fifteen (15) days from notice of the judgment or final

order orDefault (2000)
resolution appealed from, or of the denial of the

petitioner'sDefendant was declared in default by the
RTC (RTC). motion for new trial or reconsideration
filed in due time afterPlaintiff was allowed to
present evidence in support of
his complaint. Photocopies of official receipts 3 The first cannot generally be availed of as a
and substituteoriginal copies of affidavits were presented
in court,
for a lost appeal under Rules 40, 41, 42, 43 and 45. identified by plaintiff on the witness stand and
marked
4 Under the first, the lower court is impleaded court is not imp leaded.
as a partyas exhibits. Said documents were offered
by plaintiff respondent (Sec. 5 of Rule 65), while
under the second, the lowerand admitted in evidence
by the court on the basis of
(Sec. 4 of Rule of 45)
Certiorari; Rule 45 vs. Rule 65 (2005)
May the aggrieved party file a petition for certiorari

in the Supreme Court under Rule 65 of the 1997
Rules of Civil Procedure, instead of filing a petition
for review on certiorari under Rule 45 thereof for the
nullification of a decision of the Court of Appeals in
the exercise either of its original or appellate
jurisdiction? Explain.
SUGGESTED ANSWER:
To NULLIFY A DECISION of the Court of Appeals
the aggrieved party should file a PETITION

FOR
REVIEW ON CERTIORARI in the Supreme Court

under Rule 45 of the Rules of Court instead of filing
a petition for certiorari under Rule 65 except under
very exceptional circumstances. A long line of
decisions of the Supreme Court, too numerous to
mention, holds that certiorari is not a substitute for a
lost appeal. It should be noted, however, when the
Court of Appeals imposes the death penalty, or a
lesser penalty for offenses committed on such
occasion, appeal by petition for review or ordinary
appeal. In cases when the Court of Appeals imposes
reclusion perpetua, life imprisonment or a lesser
penalty, appeal is by notice of appeal filed with the
Court of Appeals.
Contempt; Death of a Party; Effect (1998)

A filed a complaint for the recovery of ownership of which the RTC rendered judgment in favor of
land against B who was represented by her counsel the
X. In the course of the trial, B died. However, X
failed to notify the court of B's death. The court plaintiff, pursuant to the relief prayed for. Upon
proceeded to hear the case and rendered judgment receipt of the judgment, defendant appeals to the
against B. After the Judgment became final, a writ of Court of Appeals claiming that the judgment is not
execution valid because the RTC based its judgment on mere
photocopies and affidavits of persons not
presented in court. Is the claim of defendant
valid? Explain. (3%)
SUGGESTED ANSWER:
The claim of defendant is not valid because under

the
1997 Rules, reception of evidence is not required.

After a defendant is declared in default, the
court shall proceed to render judgment granting the
claimant such relief as his pleading may warrant,
unless the court in its discretion requires the
claimant to submit evidence, which may be
delegated to the clerk of court. (Sec. 3, Rule
9)
ALTERNATIVE ANSWER:
The claim of defendant is valid, because the

court
received evidence which it can order in its own

discretion, in which case the evidence of the plaintiff
must pass the basic requirements of admissibility.
Default (2001)
Mario was declared in default but before judgment

was rendered, he decided to file a motion to set aside
the order of default. a) What should Mario state in
his motion in order
to justify the setting aside of the order of default?
(3%) b) In what form should such motion be? (2%)
SUGGESTED ANSWER:
a) In order to justify the setting aside of the order of

default, Mario should state in his motion that
his failure to answer was due to fraud, accident,
mistake or excusable negligence and that he has a Remedial Law Bar Examination Q & A (1997-2006)
meritorious defense. [Sec. 3(b) of Rule 9,].
b) The motion should be under oath. (Id.)
Default; Order of Default; Effects (1999)

by: sirdondee@gmail.com Page 19 of 66 defense 1 When may a party be declared in default?
(Sec. 3[b], (2%) Rule 9); and if it is denied, he may move to
reconsider, and if
2 What is the effect of an Order of Default?

(2%) reconsideration is denied, he may file the
special civil action
3 For failure to seasonably file his Answer

despiteodf uceertiorari for grave abuse of discretion
tantamount to lack notice, A was declared in default
in a case instituted agoairnesxt cess of the lower
court's jurisdiction. (Sec. 1, Rule 65) or
him by B. The following day, A's mistress who is

working as a
clerk in the sala of the Judge before whom his

case is pending, informed him of the declaration of
default. On the
same day, A presented a motion under oath to set (b) he may file a petition for certiorari if he has been
aside the order of default on the ground that his illegally declared in default, e.g. during the
failure to answer was due to fraud and he has a pendency of his motion to dismiss or before the
meritorious defense. Thereafter, he went abroad. expiration of the time to answer.
After his return a week later, with the case still
undecided, he received the order declaring him in (Matute vs. Court of Appeals, 26 SCRA 768;
default. The motion to set aside default was opposed Acosta-Ofalia vs. Sundiam, 85 SCRA 412.)
by B on the ground that it was filed before A
received notice of his having been declared in
default, citing the rule that the motion to set aside
may be made at anytime after notice but before Resolve the Motion. (2%)
judgment. 2. AFTER JUDGMENT BUT BEFORE
ITS FINALITY, he
SUGGESTED ANSWER:
1. A party may be declared in default when he
fails to answer within the time allowed therefor, and

upon motion of the claiming party with notice to the
defending party, and proof of such failure.
(Sec. 3, Rule 9)
2. The effect of an Order of Default is that

the court may proceed to render judgment granting
the claimant such relief as his pleading may warrant
unless the court in its discretion requires the
claimant to submit evidence (Id.) The party in
default cannot take part in the trial but shall be
entitled to notice of subsequent proceedings. (Sec.
3[A])
3. Assuming that the motion to set

aside complies with the other requirements of the
rule, it should be granted. Although such a motion
may be made after notice but before judgment (Sec.
3[B] of Rule 9), with more reason may it be filed
after discovery even before receipt of the order of
default.
Default; Remedies; Party Declared in Default

(1998)
What are the available remedies of a party declared

In default:
1 Before the rendition of judgment; [1%]

2 After judgment but before its finality; and may file a motion for new trial on the grounds of
[2%1 fraud,
3 After finality of judgment? [2%] accident, mistake, excusable negligence, or a motion

for reconsideration on the ground of excessive
SUGGESTED ANSWER: damages, insufficient evidence or the decision or
final order being contrary to law (Sec. 2, Rule 37):
The available remedies of a party declared in default and thereafter. If the motion is denied, appeal to
are as follows: available under Rules 40 or
1. BEFORE THE RENDITION OF 41, whichever to applicable.

JUDGMENT
(a) he may file a motion under oath to set aside the 3. AFTER FINALITY OF THE JUDGMENT,
order of default on the grounds of fraud, accident, there are three ways to assail the judgment, which
mistake or excusable negligence and that he has a are:
meritorious
a) a petition for relief under Rule 38 on the
grounds of fraud, accident, mistake or excusable
negligence;
b) annulment of judgment under Rule 47 for

extrinsic fraud or lack of jurisdiction; or c)
certiorari if the judgment to void on its face
or by the judicial record. (Balangcad vs. Justices of

the Court of Appeals, G.R. No. 83888. February
12, 1992, 206 8CRA 171).
Default; Remedies; Party Declared in Default

(2006)
Jojie filed with the Regional Trial Court of Laguna a

complaint for damages against Joe. During the
pretrial, Jojie (sic) and her (sic) counsel failed to
appear despite notice to both of them. Upon oral
motion of Jojie, Joe was declared as in default and
Jojie was allowed to present her evidence ex parte.
Thereafter, the court rendered its Decision in favor
of Jojie. Joe hired Jose as his counsel. What are the
remedies available to him? Explain. (5%)
SUGGESTED ANSWER:
The remedies available to a party against whom

a
default decision is rendered are as follows:
1. BEFORE the judgment in default becomes final
and executory:
Motion for Reconsideration under Rule Version 1997-2006 Updated by Dondee
37;
Motion for New Trial under Rule 37;
and
2. AFTER thAe
pjupdegalmuenndteirnRduelfea4u1lt. becomes final
and executory:
Petition for Relief under Rule 38;
Annulment of Judgment under Rule 47;
and
Carlos filed a complaint against Pedro in the RTC of
Ozamis City for the recovery of the ownership of a
Remedial Law Bar Examination Q & A (1997-2006) car. Pedro filed his answer within the reglementary
period. After the pre-trial and actual trial, and after
c. Certiorari under Rule 65. Carlos has completed the presentation of his
(See Talsan Enterprises, Inc. v. Baliwag Transit, evidence, Pedro moved for the dismissal of the
Inc., G.R. No. 126258, July 8, 1999) complaint on the ground that under the facts proven
and the law applicable to the case, Carlos is not
entitled to the ownership of the car. The RTC
granted the motion for dismissal. Carlos appealed
Default; Remedies; Substantial Compliance the order of dismissal and the appellate court
(2000) reversed the order of the trial court. Thereafter,
Pedro filed a motion with the RTC asking the latter
For failure of K.J. to file an answer within the to allow him to present his evidence. Carlos objected
reglementary period, the Court, upon motion of LM, to the presentation of evidence by Pedro. Should
declared KJ in default. In due time, KJ filed an the RTC grant Pedro’s motion to present his
unverified motion to lift the order of default without evidence? Why? (5%)
an affidavit of merit attached to it. KJ however
attached to the motion his answer under oath, stating
in said answer his reasons for his failure to file an
answer on time, as well as his defenses. Will the SUGGESTED ANSWER:
motion to lift the order of default prosper? Explain.
(3%) No. Pedro’s motion should be denied. He can
no
longer present evidence. The Rules provide that if

SUGGESTED ANSWER: the motion for dismissal is granted by the trial court
but on appeal the order of dismissal is reversed, he
Yes, there is substantial compliance with the shall be deemed to have waived the right to present
rule. evidence. (Sec. 1 of Rule 33, Rules of Civil
Procedure)
Although the motion is unverified, the answer
attached to ALTERNATIVE ANSWER:
the motion is verified. The answer contains what the No, because when the appellate court reversed
motion to lift the order of default and the affidavit of the
merit should contain, which are the reasons of
movant’s failure to answer as well as his defenses. order of the trial court it should have rendered
(Sec. 3 [b] of Rule judgment in favor of Carlos. (Quebral v. Court of
Appeals, 252
9, 1997 Rules of Civil
SCRA 353, 1996)
Procedure; Cf. Citibank, N.A. v. Court of

Appeals, 304
SCRA 679, [1999]; Consul v. Consul, 17

SCRA 667, 671 [1966]; Tolentino v. Carlos, 66
Phil, 1450, 143-144 [1938], Nasser v. Court of
Appeals, 191 SCRA 783 [1992]).
Demurrer to Evidence (2001)

by: sirdondee@gmail.com Page 20 of 66 Demurrer 1 DEPOSITION. By leave of court
to Evidence; Civil Case vs. Criminal Case (2003) after jurisdiction has been obtained over any
Compare the effects of a denial of demurrer to defendant or over property which is the subject of
evidence in a civil case with those of a denial of the action, or without such leave after an answer has
demurrer to evidence in a criminal case. 4% been served, the testimony of any person, whether a
party or not, may be taken, at the instance of any
party, by deposition upon oral examination or
written interrogatories. (Sec. 1, Rule 23, 1997 Rules
SUGGESTED ANSWER: of Civil Procedure.)
In a civil case, the defendant has the right to file a 2 INTERROGATORIES TO PARTIES.
demurrer to evidence without leave of court. If his Under the same conditions specified in section 1 of
demurrer is denied, he has the right to present Rule 23, any party shall file and serve upon any
evidence. If his demurrer is granted and on appeal by adverse party written
the plaintiff, the appellate court reverses the order interrogatories regarding material and relevant facts
and renders judgment for the plaintiff, the defendant to be answered by the party served. (Sec. 1, Rule 25,
loses his right to present evidence. (Rule 33). 1997 Rules of Civil Procedure.)
3 ADMISSION BY ADVERSE PARTY. At

In a criminal case, the accused has to obtain leave of any time after issues have been joined, a party may
court to file a demurrer to evidence. If he obtains file and serve upon any other party a written
leave of court and his demurrer to evidence is request for the admission by the latter of the
denied, he has the right to present evidence in his genuineness of any material and relevant document
defense. If his demurrer to evidence is granted, he is or of the truth of any material and relevant matter of
acquitted and the prosecution cannot appeal. fact.
If the accused does not obtain leave of court and his

demurrer to evidence is denied, he waives his right
to present evidence and the case is decided on the
basis of the evidence for the prosecution.
The court may also dismiss the action on the ground

of insufficiency of the evidence on its own initiative
after giving the prosecution the opportunity to
be heard. (Sec. 23 of Rule 119)
Discovery; Modes of Discovery (2000)
Describe briefly at least five (5) modes of discovery

under the Rules of Court. (5%)
SUGGESTED ANSWER:
Five modes of discovery under the Rules of Court

are:
(Sec. 1, Rule 26, 1997 Rules of Civil Procedure.)
4. PRODUCTION OR INSPECTION OF (a) The witness can also refuse to comply with the
DOCUMENTS OR THINGS. Upon motion of any
party showing good cause therefore, a court may subpoena duces tecum on the ground that the
order any party to produce and permit the inspection documents are not relevant and there was no tender
and copying or photographing of any designated of fees for one day's attendance and the kilometrage
documents, etc. or order any party to permit entry allowed by the rules.
upon designated land or property for inspecting,
measuring, surveying, or photographing the property
or any designated relevant object or operation Discovery; Production and Inspection of
thereon. (Sec. 1, Rule Documents
(2002)
27, 1997 Rule 27 Rules of Civil Procedure.) The plaintiff sued the defendant in the RTC to
collect on a promissory note, the terms of which
were stated in the complaint and a photocopy
Discovery; Modes; Subpoena Duces Tecum attached to the complaint as an annex. Before
(1997) answering, the defendant filed a motion for an order
directing the plaintiff to produce the original of the
In an admiralty case filed by A against Y note so that the defendant could inspect it and verify
Shipping Lines (whose principal offices are in his signature and the handwritten entries of the dates
Manila) in the RTC, Davao City, the court issued a and amounts.
subpoena duces tecum directing Y, the president of
the shipping company, to appear and testify at the 1 Should the judge grant the defendant’s
trial and to bring with him several documents. motion for production and inspection of the original
of the promissory note? Why? (2%)
(a) On what valid ground can Y refuse to comply
with the subpoena duces tecum? 2 Assuming that an order for production
and inspection was issued but the plaintiff failed to
(b) How can A take the testimony of Y and present comply with it, how should the defendant plead to
the the alleged execution of the note? (3%)
documents as exhibits other than through the

subpoena from the RTC?
SUGGESTED ANSWER:
(a) Y can refuse to comply with the subpoena duces
tecum on the ground that he resides more than 50

(now 100) kilometers from the place where he is to
testify, (Sec. 9 of former Rule 23; Sec. 10 of new
Rule 21).
(b) A can take the testimony of Y and present the

documents as exhibits by taking his deposition
through oral examination or written interrogatories.
(Rule 24; new Rule 23) He may also file a motion
for the production or inspection of documents. (Rule
27).
ALTERNATIVE ANSWER:
SUGGESTED ANSWER: SUGGESTED ANSWER:
(a) No, res judicata is not a defense in an action for
(1) Yes, because upon motion of any party showing support even if the first case was dismissed with
good cause, the court in which the action is pending prejudice on a joint motion to dismiss. The
may order any party to produce and permit the plaintiff’s mother agreed to the dismissal of the
inspection of designated documents. (Rule 27). The complaint for support in view of the defendant’s
defendant has the right to inspect and verify the answer denying his paternity with a counterclaim for
original of the promissory note so that he could damages. This was in the nature of a compromise of
intelligently prepare his answer. the right of support which is prohibited by law. (Art,
2035, Civil Code; De
(2) The defendant is not required to deny under oath
the genuineness and due execution of the promissory Asis v. Court of Appeals, 303 SCRA 176 [1999]).
note, because of the non-compliance by the plaintiff
with the order for production and inspection of the
original thereof. (Rule 8, sec. 8).
(b) The Essential Requisites of Res Judicata are:
ALTERNATIVE ANSWER:
1 the judgment or order rendered must be
(2) The defendant may file a motion to dismiss the final;
complaint because of the refusal of the plaintiff to 2 the court rendering the same must have
obey the order of the court for the production and jurisdiction of the subject matter and of the
inspection of the promissory note. [Rule 29 Sec. parties;
3(c)].
3 it must be a judgment or order on the
merits; and
Dismissal; Motion to Dismiss; Res Judicata
(2000)
AB, as mother and in her capacity as legal guardian

of her legitimate minor son, CD, brought action for
support against EF, as father of CD and AB’s
lawfully wedded husband. EF filed his answer
denying his paternity with counterclaim for
damages. Subsequently, AB filed a manifestation in
court that in view of the denial made by EF, it would
be futile to pursue the case against EF. AB agreed to
move for the dismissal of the complaint, subject to
the condition that EF will withdraw his counter
claim for damages. AB and EF filed a joint motion
to dismiss. The court dismissed the case with
prejudice. Later on, minor son CD, represented by
AB, filed another complaint for support against EF.
EF filed a motion to dismiss on the ground of res
judicata. a) Is res judicata a valid ground for
dismissal of the
second complaint? Explain your answer (3%) b)

What are the essential requisite of res judicata? (2%)
Court, Taal, Batangas a complaint for specific
performance against Bernie. For lack of
4. there must be between the two cases certification against forum shopping, the judge
identity of parties, identity of subject matter, and dismissed the complaint. Honey's lawyer filed a
identity of causes of action. (San Diego v. motion for reconsideration, attaching thereto an
amended complaint with the certification against
Cardona, 70 Phil, 281 [1940]) forum shopping. If you were the judge, how will you
resolve the motion? (5%)
Evidence; Admissibility; Photocopies (2000) SUGGESTED ANSWER:
If the photocopies of official receipts and If I were the judge, the motion should be
photocopies of affidavits were attached to the denied after
position paper submitted by plaintiff in an action for hearing because, as expressly provided in the Rules,
unlawful detainer filed with Municipal Trial Court failure to comply with the requirement of forum
on which basis the court rendered judgment in shopping is not curable by mere amendment of the
favor of plaintiff? Explain. (2%) complaint or other initiatory pleading, but shall be
SUGGESTED ANSWER: cause for the dismissal of the case, without
prejudice, unless otherwise provided (Sec. 5, Rule
The claim of defendant is valid, because
although 7, 1997 Rules of Civil Procedure). However, the
trial court in the
summary procedure requires merely the submission
of position papers, the evidence submitted with the exercise of its sound discretion, may choose to be
position paper must be admissible in evidence. (Sec. liberal and consider the amendment as substantial
9 of the Revised Rule on Summary Procedure). compliance
Photocopies of official receipts and affidavits are not
admissible without proof of loss of the originals.
(Sec. 3 of Rule 130)
(Great Southern Maritime Services Corp. v.

Acuna, G.R. No.
Forum Shopping; Definition (2006) What is forum
shopping? (2.5%) SUGGESTED ANSWER: 140189, February 28,2005; Chan v. RTC of
Zamboanga del Norte, G.R. No. 149253, April 15,
Forum shopping is the act of a party which consists 2004; Uy v. Land Bank, G.R. 136100, July 24,
of
2000).
filing multiple suits, simultaneously or successively,
for the purpose of obtaining a favorable judgment
Gen. Principles; Questions of Law vs. Questions
(Leyson v. Office of the Ombudsman, G.R. No. of Fact
134990, April 27, 2000; Yulienco v. CA, G.R.
No. 131692, June (2004)
10,1999; Chemphil Export & Import Corp. v. Distinguish Questions of law from Questions of fact.
CA, G.R. Nos.
112438-39, December 12, 1995).
Forum Shopping; Effects; Lack of Certification

(2006) Honey filed with the Regional Trial
reviving the Judgment because it can no longer be
enforced by motion as the five-year period
within which a judgment may be enforced by motion
has already expired. (Sec. 6 of former and new Rule
SUGGESTED ANSWER: 39).
A QUESTION OF LAW is when the doubt or
difference
(b) A may institute the proceedings in the RTC in
arises as to what the law is on a certain set of facts, accordance with the rules of venue because the
while a QUESTION OF FACT is when the doubt or enforcement of the Judgment is a personal action
difference arises as to the truth or falsehood of incapable of pecuniary estimation.
alleged facts. (Ramos v. Pepsi-Cola Bottling Co., ALTERNATIVE ANSWER:
19
(b) A may institute the proceeding in a MTCwhich
SCRA 289, [19670]). has
jurisdiction over the area where the real property

Judgment; Annulment of Judgment; Grounds involved is situated. (Sec. 1 of Rule 4).
(1998)
What are the grounds for the annulment of a Judgment; Enforcement; Foreign Judgment
judgment of the RTC (RTC)? [2%]
(2005)
SUGGESTED ANSWER: Under Article 1144 of the New Civil Code, an action
The grounds for annulment of judgment of the RTC upon a judgment must be brought within 10 years
from the time the right of action accrues. Is this
are Extrinsic Fraud and Lack of Jurisdiction. (Sec, provision applicable to an action filed in the
2, Rule 47, 1997 Rules of Civil Procedure.) Philippines to enforce a foreign judgment? Explain.
(10%)
Judgment; Enforcement; 5-year period (1997)

ALTERNATIVE ANSWER:
A, a resident of Dagupan City, secured a favorable
judgment in an ejectment case against X, a resident Article 1144 of the Civil Code which requires that
of Quezon City, from the MTCof Manila. The an
judgment, entered on 15 June 1991, had not as yet
been executed. a) In July 1996, A decided to enforce action upon a judgment (though without distinction)
the judgment must be brought within 10 years from the time the
right of action accrues, does not apply to an action
filed in the Philippines to enforce a foreign
judgment. While we can say that where the law does
of the MTCof Manila. What is the procedure to not distinguish, we should not distinguish, still the
be followed by A in enforcing the judgment? b) law does not evidently contemplate the inclusion of
With what court should A institute the proceedings?
Version 1997-2006 Updated by Dondee
SUGGESTED ANSWER:
(a) A can enforce the judgment by another

action
No, because awards for moral and exemplary
damages
foreign judgments. A local judgment may be cannot be the subject of execution pending appeal.
enforced by motion within five years and by action The
within the next five years. (Rule 39) That is not the
case with respect to foreign judgments which execution of any award for moral and exemplary
cannot be enforced by mere motion. damages is dependent on the outcome of the main
case. Liabilities for moral and exemplary damages,
ALTERNATIVE ANSWER: as well as the exact amounts remain uncertain and
indefinite pending resolution by the Court of
Article 1144 of the Civil Code requires that an Appeals or Supreme Court. [RCPI v. Lantin,
action
upon a judgment (though without distinction) must

be brought within 10 years from the time the right 134 SCRA 395 (1985); International School, Inc.
of action accrues. There seems no cogent reason v. Court of
to exclude foreign judgments from the operation of
this rule, subject to the requirements of Rule 39, Sec. Appeals, 309 SCRA 474 (1999)].
48 of the Rules of Court which establishes certain
requisites for proving the foreign judgment. Pursuant ALTERNATIVE ANSWER:
to these provisions, an action for the enforcement Yes, because only moral and exemplary damages are
of the foreign judgment may be brought at any time
within 10 years from the time the right of action awarded in the judgment and they are not dependent
accrues. on other types of damages.
Moreover, the motion for execution was filed while

the court had jurisdiction over the case and was in
Judgment; Execution pending Appeal (2002) possession of the original record.
The trial court rendered judgment ordering the
defendant to pay the plaintiff moral and exemplary
damages. The judgment was served on the plaintiff It is based on good reason which is the
on October 1, 2001 and on the defendant on October imminent insolvency of the defendant. (Rule 39, sec.
5, 2)
2001. On October 8, 2001, the defendant filed a
notice
of appeal from the judgment, but the following day,

October 9, 2001, the plaintiff moved for the
execution of the judgment pending appeal. The trial
court granted the motion upon the posting by the
plaintiff of a bond to indemnify the defendant for
damages it may suffer as a result of the execution.
The court gave as a special reason for its order the
imminent insolvency of the defendant. Is the order
of execution pending appeal correct? Why? (5%)
SUGGESTED ANSWER:
by: sirdondee@gmail.com Page 23 of 66 a) What are the grounds for judgment on the
Judgment; Interlocutory Order; Partial pleadings? (2%)
Summary Judgments (2004) After defendant has
served and filed his answer to plaintiffs complaint b) A's Answer admits the material allegations
for damages before the proper RTC, plaintiff of
served and filed a motion (with supporting
affidavits) for a summary judgment in his favor B's Complaint. May the court motu proprio render
upon all of his claims. Defendant served and filed judgment on the pleadings? Explain. (2%)
his opposition (with supporting affidavits) to the c) A brought an action against her husband B
motion. After due hearing, the court issued an order for annulment of their marriage on the ground of
psychological incapacity, B filed his Answer to the
Complaint admitting all the allegations therein
(1) stating that the court has found no genuine issue contained. May A move for judgment on
as to any material fact and thus concluded that the pleadings? Explain. (2%)
plaintiff is entitled to judgment in his favor as a
matter of law except as to the amount of damages SUGGESTED ANSWER:
recoverable, and (2) accordingly ordering that a) The grounds for judgment on the pleadings
plaintiff shall have judgment summarily against
defendant for such amount as may be found due are where an answer fails to tender an issue, or
plaintiff for damages, to be ascertained by trial on otherwise admits the material allegations of the
October 7, 2004, at 8:30 o'clock in the morning. adverse party's pleading. (Sec. 1, Rule 34).
May defendant properly take an appeal from said
order? Or, may defendant properly challenge said b) No, a motion must be filed by the adverse
order thru a special civil action for certiorari? party. (Sec. 1, Rule 34) The court cannot motu
Reason. (5%) proprio render judgment on the pleadings.
SUGGESTED ANSWER: c) No, because even if B's answer to A's

complaint for annulment of their marriage admits all
No, plaintiff may not properly take an appeal from the allegations therein contained, the material facts
said order because it is an interlocutory order, not a
final and appealable order (Sec. 4 of Rule 35). It does
not dispose of the action or proceeding (Sec. 1 of
Rule 39).
PARTIAL SUMMARY JUDGMENTS are

interlocutory. There is still something to be done,
which is the trial for the adjudication of damages
(Province of Pangasinan v. Court of Appeals, 220

SCRA 726 [1993J; Guevarra v. Court of Appeals,
209 Phil. 241 [1983]), but the defendant may
properly challenge said
order thru a special civil action for certiorari. (Sec. 1

[c]
and last par. of Rule 41)
Judgment; Judgment on the Pleadings (1999)

positively how it is that he is ignorant of the facts
alleged. (Phil, Advertising Counselors, Inc. v.
Remedial Law Bar Examination Q & A (1997-2006) Revilla,
alleged in the complaint must always be proved.
(Sec. 1 of Rule 34.)
ANOTHER ANSWER: G.R. No. L-31869, August 8, 1973; Sec. 10, Rule
8) Moreover, the genuineness and due execution of
c. No. The court shall order the prosecutor to the deed of sale can only be denied by the defendant
investigate under
whether or not a collusion between the parties exists, oath and failure to do so is also an admission of the
and deed. (Sec. 8, Rule 8) Hence, a judgment on the
pleadings can be rendered by the court without need
if there is no collusion, to intervene for the State in of a trial.
order to see to it that the evidence submitted is not
fabricated. (Sec. 3[E], Rule 9) Evidence must have
to be presented in accordance with the requirements
set down by the Supreme Court in
Judgment; Mandamus vs. Quo Warranto (2001)
Republic vs. Court of Appeals and Molina (268 Petitioner Fabian was appointed Election Registrar
SCRA 198.) of the Municipality of Sevilla supposedly to replace
the respondent Election Registrar Pablo who was
transferred to another municipality without his
consent and who refused to accept his aforesaid
transfer, much less to vacate his position in Bogo
Judgment; Judgment on the Pleadings (2005) town as election registrar, as in fact he continued to
occupy his aforesaid position and exercise his
In a complaint for recovery of real property, the functions thereto. Petitioner Fabian then filed a
plaintiff averred, among others, that he is the owner petition for mandamus against Pablo but the trial
of the said property by virtue of a deed of sale court dismissed Fabian’s petition contending that
executed by the defendant in his favor. Copy of the quo warranto is the proper remedy. Is the court
deed of sale was appended to the complaint as correct in its ruling? Why? (5%)
Annex "A" thereof. In his unverified answer, the
defendant denied the allegation concerning the sale
of the property in question, as well as the appended
SUGGESTED ANSWER:
deed of sale, for lack of knowledge or information
sufficient to form a belief as to the truth thereof. Is it Yes, the court is correct in its ruling. Mandamus will
proper for the court to render judgment without trial?
Explain. (4%) not lie. This remedy applies only where
petitioner’s right is founded clearly in law, not when
it is doubtful. Pablo was transferred without his
consent
SUGGESTED ANSWER:
Defendant cannot deny the sale of the property for

lack of
knowledge or information sufficient to form a belief

as to
the truth thereof. The answer amounts to an

admission. The defendant must aver or state
by: sirdondee@gmail.com Page 24 of 66 which is against the surety cannot exceed the amount
tantamount to removal without cause, contrary to the of its counterbond of P1 million.
fundamental guarantee on non-removal except for
cause. Considering that Pedro continued to occupy
the disputed position and exercise his functions
therein, the proper remedy is quo warranto, not Judgments; Enforcement; Examination of
mandamus. {Garces v. Court of Defendant
(2002)
Appeals, 259 SCRA 99 (1996)] The plaintiff, a Manila resident, sued the defendant,
a resident of Malolos Bulacan, in the RTC-Manila
ALTERNATIVE ANSWER: for a sum of money. When the sheriff tried to serve
the summons with a copy of the complaint on the
Yes, the court is correct in its ruling. Mandamus lies defendant at his Bulacan residence, the sheriff was
told that the defendant had gone to Manila for
when the respondent unlawfully excludes another business and would not be back until the evening of
from the use and enjoyment of a right or office to that day. So, the sheriff served the summons,
which such other is entitled. (Sec. 2, Rule 65). In this together with a copy of the complaint, on the
case, Pablo has not unlawfully excluded Fabian from defendant’s 18year-old daughter, who was a college
the Office of Election Registrar. The remedy of student. For the defendant’s failure to answer the
Fabian is to file an action of quo warranto in his complaint within the reglementary period, the trial
name against Pablo for usurping the office. (Sec. 5, court, on motion of the plaintiff, declared the
Rule defendant in default. A month later, the trial court
rendered judgment holding the defendant liable for
66) the entire amount prayed for in the
complaint.
Judgment; Soundness; Attachment (2002)
The plaintiff obtained a writ of preliminary

attachment upon a bond of P1 million. The writ was
levied on the defendant’s property, but it was
discharged upon the posting by the defendant of a
counterbond in the same amount of P1 million. After
trial, the court rendered judgment finding that the
plaintiff had no cause of action against the
defendant and that he had sued out the writ of
attachment maliciously. Accordingly, the court
dismissed the complaint and ordered the plaintiff
and its surety to pay jointly to the defendant
P1.5 million as actual damages, P0.5 million as
moral damages and P0.5 million as exemplary
damages. Evaluate the soundness of the judgment
from the point of view of procedure. (5%)
SUGGESTED ANSWER:
The judgment against the surety is not sound if due
notice was not given to him of the applicant for

damages. (Rule 57, sec. 20) Moreover, the judgment
Remedial Law Bar Examination Q & A (1997-2006) Jurisdiction; Lack of Jurisdiction; Proper Action
of the
A. After the judgment had become final, a writ of
execution was issued by the court. As the writ was Court (2004)
returned unsatisfied, the plaintiff filed a motion for
an order requiring the defendant to appear before it Plaintiff filed a complaint for a sum of money
and to be examined regarding his property and against defendant with the MeTC-Makati, the total
income. How should the court resolve the motion? amount of the demand, exclusive of interest,
(2%) SUGGESTED ANSWER: damages of whatever kind, attorney's fees,
litigation expenses, and costs, being P1,000,000.
In due time, defendant filed a motion to dismiss the
complaint on the ground of the MeTC's lack of
Jurisdiction; Habeas Corpus; Custody of Minors jurisdiction over the subject matter. After due
(2005) While Marietta was in her place of work in hearing, the MeTC (1) ruled that the court
Makati City, her estranged husband Carlo barged indeed lacked jurisdiction over the subject matter of
into her house in Paranaque City, abducted their the complaint; and (2) ordered that the case
six-year old son, Percival, and brought the child to therefore should be forwarded to the proper RTC
his hometown in Baguio City. Despite Marietta's immediately. Was the court's ruling concerning
pleas, Carlo refused to return their child. Marietta, jurisdiction correct? Was the court's order to forward
through counsel, filed a petition for habeas corpus the case proper? Explain briefly. (5%)
against Carlo in the Court of Appeals in Manila to
compel him to produce their son, before the court SUGGESTED ANSWER:
and for her to regain custody. She alleged in the
petition that despite her efforts, she could no longer
locate her son.
In his comment, Carlo alleged that the petition was

erroneously filed in the Court of Appeals as the
same should have been filed in the Family Court in
Baguio City which, under Republic Act No. 8369,
has exclusive jurisdiction, over the petition. Marietta
replied that under Rule 102 of the Rules of Court, as
amended, the petition may be filed in the Court of
Appeals and if granted, the writ of habeas corpus
shall be enforceable anywhere in the Philippines.
Whose contention is correct? Explain. (5%)
SUGGESTED ANSWER:
Marietta's contention is correct. The Court of

Appeals
has concurrent jurisdiction with the family courts

and the Supreme Court in petitions for habeas
corpus where the custody of minors is at issue,
notwithstanding the provision in the Family
Courts AH. (R.A. No. 8369) that family courts
have exclusive jurisdiction in such cases. (Thornton
v. Thornton, G.R.
No. 154598, August, 2004)

by: sirdondee@gmail.com Page 25 of 66 Yes. The
MeTC did not have jurisdiction over the case
because the total amount of the demand exclusive of (Ferreira us. Ibarra Vda. de Gonzales, 104 Phil.
interest, damages of whatever kind, attorney's fees, 143; Vda. de la Cruz vs. Court of Appeals, 88
litigation expenses, and costs, was P1M. Its SCRA 695; Lawas us. Court of Appeals, 146
jurisdictional amount at this time should not exceed SCRA 173.) I could also file an action to annul the
P400.000.00 (Sec. 33 of B.P. Big. 129, as amended judgment for lack of jurisdiction because C, as the
by successor of B, was deprived of due process and
should have been heard before judgment.
(Rule 47)
R.A. No. 7691).
ALTERNATIVE ANSWER:
While there are decisions of the Supreme Court

The court's order to forward the case to the RTC is which
not proper. It should merely dismiss the complaint.
Under Sec. 3 of Rule 16, the court may dismiss the hold that if the lawyer failed to notify the court of
action or claim, deny the motion or order the his client's death, the court may proceed even
amendment of the pleading but not to forward the without substitution of heirs and the judgment is
case to another court. valid and binding on the heirs of the deceased
(Florendo vs. Coloma, 129 SCRA 30.), as counsel
of C, I will assail the judgment and execution for
lack of due process.
Parties; Death of a Party; Effect (1998)
A filed a complaint for the recovery of ownership of

land against B who was represented by her counsel Parties; Death of a Party; Effect (1999)
X. In the course of the trial, B died. However, X
failed to notify the court of B's death. The court What is the effect of the death of a party upon a
proceeded to hear the case and rendered judgment pending action? (2%)
against B. After the Judgment became final, a writ of
execution was issued against C, who being B's sole SUGGESTED ANSWER:
heir, acquired the property. If you were counsel of C, 1. When the claim in a pending action is purely
what course of action would you take? [3%]
personal, the death of either of the parties
extinguishes the claim and the action is dismissed.
SUGGESTED ANSWER:
As counsel of C, I would move to set aside the writ

of
execution and the judgment for lack of jurisdiction

and
lack of due process in the same court because the

judgment is void. If X had notified the court of B's
death, the court would have ordered the substitution
of the deceased by C, the sole heir of B. (Sec. 16 of
Rule 3) The court acquired no jurisdiction over C
upon whom the trial and the judgment are not
binding.
by: sirdondee@gmail.com Page 26 of 66 attached,
stating the grounds of his title thereto, and serve
Remedial Law Bar Examination Q & A (1997-2006) such affidavit upon
1 When the claim is not purely personal and heirs or his executor or administrator. (Sec. 16, Rule
isthneostheriff while the latter has possession of the 3)
attached thereby extinguished, the party should be
substituted bpyrohpiserty, and a copy thereof upon
the attaching party. (Sec.
14, Rule 57) The third-party claimant may also 2 If the action is for recovery of money
intervene or file arising afrosmeparate action to vindicate his
claim to the property contract, express or implied,
and the defendant dies bienfovorelved and secure the
necessary reliefs, such as preliminary entry of final
judgment in the court in which the
actioninwjuansction, which will not be considered as
interference with pending at the time of such death,
it shall not be dismaiscsoedurt of coordinate
jurisdiction.
but shall instead be allowed to continue until entry

of final
judgment. A favorable judgment obtained by the

plaintiff shall (Ong v. Tating, 149 SCRA 265,
[1987])
be enforced in the manner provided in the rules

for
prosecuting claims against the estate of a deceased

person. (Sec. Parties; Third-Party Claim (2005)
20,
Rule 3)
A obtained a money judgment against B. After Parties; Death of a Party; Effect (1999)
the
When A (buyer) failed to pay the remaining balance
finality of the decision, the court issued a writ of of the contract price after it became due and
execution for the enforcement thereof. Conformably demandable, B (seller) sued him for collection
with the said writ, the sheriff levied upon certain before the RTC. After both parties submitted their
properties under B's name. C filed a third-party respective evidence, A perished in a plane accident.
claim over said properties claiming that B had Consequently, his heirs brought an action for the
already settlement of his estate and moved for the dismissal
of the collection suit.
1 Will you grant the motion? Explain. (2%)

transferred the same to him. A moved to deny the 2 Will your answer be the same if A died
third-party claim and to hold B and C jointly and while the (4%)
severally liable to him for the money judgment
alleging that B had transferred said properties to C to case is already on appeal to the Court of Appeals?
defraud him (A). Explain. SUGGESTED ANSWER:
After due hearing, the court denied the third-

party claim and rendered an amended decision
declaring B and C jointly and severally liable to A
for the money judgment. Is the ruling of the court
correct? Explain.
(2%) NO. C has not been properly impleaded as a party
3 In the same case, what is the effect if B died the RTC has rendered judgment? (2%)
before defendant. He cannot be held liable for the
judgment SUGGESTED ANSWER:
1 No, because the action will not be dismissed

but
shall instead be allowed to continue until entry

of final judgment. (Id.)
2 No. If A died while the case was already on

appeal
against A without a trial. In fact, since no bond was in the Court of Appeals, the case will continue
because there (Tanongan v. Samson, G.R. No.
filed by B, the sheriff is liable to C for damages. C 140889, May 9, 2002)
can
is no entry yet of final judgment. (Id.)
file a separate action to enforce his third-party claim.
It is in that suit that B can raise the ground of fraud
against C. However, the execution may proceed
where there is a finding that the claim is fraudulent.
3 The effect is the same. The action will Petition for Certiorari (2000)
not be dismissed but will be allowed to continue
until entry of final judgment. (Id.) AB mortgaged his property to CD. AB failed to pay
his obligation and CD filed an action for foreclosure
of mortgage. After trial, the court issued an
Order granting CD’s prayer for foreclosure of
mortgage and ordering AB to pay CD the full
amount of the mortgage debt including interest and
other charges not later than 120 days from date of
receipt of the Order. AB received the Order on
August 10, 1999. No other proceeding took place
thereafter. On December 20,
Parties; Third Party Claim (2000) 1999, AB tendered the full amount adjudged by the
court to CD but the latter refused to accept it on the
JK’s real property is being attached by the sheriff in ground that the amount was tendered beyond the
a civil action for damages against LM. JK claims 120- day period granted by the court. AB filed a
that he is not a party to the case; that his property is motion in the same court praying that CD be
not involved in said case; and that he is the sole directed to receive the amount tendered by him on
registered owner of said property. Under the Rules the ground that the Order does not comply with the
of Court, what must JK do to prevent the Sheriff provisions of Section
from attaching his property? (5%)
2, Rule 68 of the Rules of Court which give AB 120
SUGGESTED ANSER: days from entry of judgment, and
If the real property has been attached, the remedy is

to
file a third-party claim. The third-party claimant
should make an affidavit of his title to the property
Asi, 100 Phil. 785 (1957)].
not from date of receipt of the Order. The court An ACTION FOR ANNULMENT may also be filed
denied his motion on the ground that the Order had on the ground of extrinsic fraud within four (4) years
already become final and can no longer be amended from its discovery, and if based on lack of
to conform with Section 2, Rule 68. Aggrieved, AB jurisdiction, before it is barred by laches or estoppel.
files a petition for certiorari against the Court and
CD. Will the petition for certiorari prosper? Explain. (Rule 47, secs. 2 & 3)
(5%)
Petition for Relief; Injunction (2002)

SUGGESTED ANSWER:
A default judgment was rendered by the RTC
Yes. The court erred in issuing an Order granting ordering D to pay P a sum of money. The judgment
CD’s became final, but D filed a petition for relief and
obtained a writ of preliminary injunction staying the
prayer for foreclosure of mortgage and ordering AB enforcement of the judgment. After hearing, the
to pay CD the full amount of the mortgage debt RTC dismissed D’s petition, whereupon P
including interest and other charges not later than immediately moved for the execution of the
120 days from receipt of the Order. The court should judgment in his favor. Should P’s motion be
have rendered a judgment which is appealable. granted? Why? (3%)
Since no appeal was taken, the judgment became
final on August 25, 1999, which is the date of entry SUGGESTED ANSWER:
of judgment. (Sec 2, Rule 36) Hence, AB had up to
December 24, 1999 within which to pay the amount P’s immediate motion for execution of the judgment
due. (Sec. 2, Rule 68) The court gravely abused its in
discretion amounting to lack or excess of his favor should be granted because the dismissal of
jurisdiction in denying AB’s motion praying that CD D’s petition for relief also dissolves the writ of
be directed to receive the amount tendered. preliminary injunction staying the enforcement of
the
Petition for Relief & Action for Annulment

(2002)
May an order denying the probate of a will still be

overturned after the period to appeal therefrom has
lapsed? Why? (3%)
SUGGESTED ANSWER:
Yes, an order denying the probate of a will may be
overturned after the period to appeal therefrom has

lapsed. A PETITION FOR RELIEF may be filed on
the grounds of fraud, accident, mistake or excusable
negligence within a period of sixty (60) days after
the petitioner learns of the judgment or final order
and not more than six (6) months after such
judgment or final order was entered [Rule 38, secs.
1 & 3; Soriano v.
by: sirdondee@gmail.com Page 27 of 66 amended complaint impleading the three (3)
legitimate children of Y. The trial court admitted the
judgment, even if the dismissal is not yet final. amended complaint on August
[Golez v. Leonidas, 107 SCRA 187 (1981)].
22, 2000. What is the effect of the admission of the
amended complaint? Has the action of X prescribed?

Pleadings; Amendment of Complaint; By Leave Explain. (5%)
of Court
SUGGESTED ANSWER:
(2003)
No. The action filed on April 25, 2000 is still within
After an answer has been filed, can the plaintiff the
amend his complaint, with leave of court, by
changing entirely the nature of the action? 4% four-year prescriptive period which started to run on
May
SUGGESTED ANSWER:
2, 1996. The amended complaint impleading the
Yes, the present rules allow amendments three
substantially
legitimate children, though admitted on August 22,
altering the nature of the cause of action. (Sec. 3, 2000 beyond the four-year prescriptive period,
Rule 10, retroacts to the date of filing of the original
complaint. Amendments impleading new defendants
1977 Rules of Civil Procedure; Heirs of Marcelino retroact to the date of the filing of the complaint
Pagobo v. Court of Appeals, 280 SCRA 870 because they do not constitute a new cause of action.
[1997]).
(Verzosa v. Court of Appeals, 299 SCRA 100

This should only be true, however, when the
[1998]).
substantial change or alteration in the cause of action
or defense shall serve the higher interests of (Note: The four-year period is based on Article 285
substantial justice and prevent delay and equally of the Civil Code)
promote the laudable objective of the rules which
is to secure a just, speedy and inexpensive ALTERNATIVE ANSWER:
disposition of every action and proceeding.
(Valenzuela v. Court of Appeals, 363 SCRA Under the 1997 Rules of Civil Procedure, if an
779 [2001]). additional defendant is impleaded in a later pleading,

the action is commenced with regard to him on the
date of the filing of such later pleading, irrespective
of whether the motion for its admission, if
Pleadings; Amendment of Complaint; By Leave necessary, is denied by the court. (Sec. 5 of Rule 1).
of Court; Prescriptive Period (2000)
X, an illegitimate child of Y, celebrated her

18th birthday on May 2, 1996. A month before her
birthday, Y died. The legitimate family of Y refused
to recognize X as an illegitimate child of Y. After
countless efforts to convince them, X filed on April
25, 2000 an action for recognition against Z, wife of
Y. After Z filed her answer on August 14, 2000, X

filed a motion for leave to file an amended
complaint and a motion to admit the said
by: sirdondee@gmail.com Page 28 of 66 The
motion to dismiss should be granted. Jurisdiction
Remedial Law Bar Examination Q & A (1997-2006) must be conferred by the contents of the original
Consequently, the action of X has prescribed complaint. Amendments are not proper and should
with respect to the three (3) legitimate children of Y be denied where the court has no jurisdiction over
who are indispensable parties. the original complaint and the purpose of
ANOTHER ALTERNATIVE ANSWER:
Under Article 175 of the Family Code, the action on a record of birth or an admission of filiation in a
must the amendment is to confer jurisdiction on the public document or a private handwritten instrument
court. signed by Y. In such case, the action of X has not
prescribed.
be brought within the lifetime of X if the action is
based
However, if the action is based on the open and

continuous possession of the status of an illegitimate
child, the action should have been brought during
the lifetime of Y. In such case, the action of X has
prescribed.
Pleadings; Amendment of Complaint; Matter

of Right
(2005)
On May 12, 2005, the plaintiff filed a complaint in

the RTC of Quezon City for the collection of
P250,000.00. The defendant filed a motion to
dismiss the complaint on the ground that the court
had no jurisdiction over the action since the claimed
amount of P250,000.00 is within the exclusive
jurisdiction of the Metropolitan Trial Court, of
Quezon City. Before the court could resolve the
motion, the plaintiff, without leave of court,
amended his complaint to allege a new cause of
action consisting in the inclusion of an additional
amount of P200,000.00, thereby increasing his total
claim to P450,000.000. The plaintiff thereafter
filed his opposition to the motion to dismiss,
claiming that the RTC had jurisdiction, over his
action. Rule on the motion of the defendant with
reasons. (4%)
SUGGESTED ANSWER:
The motion to dismiss should be denied. Basic is the

rule
that a motion to dismiss is not a responsive pleading.

Under the Rules, a pleader may amend his
pleading as a matter of right before the other
party has served his responsive pleading. (Sec. 2,
Rule 10, Rules of Court) The court, in allowing the
amendment, would not be acting without jurisdiction
because allowing an amendment as a matter of
right does not require the exercise of discretion. The
court therefore would not be "acting" and thus, could
not have acted without jurisdiction. It would have
been different had the amendments been made after (Rosario v. Carandang, G.R. No. L-7076, April
a responsive pleading had been served. The court 28, 1955) While a plaintiff is entitled to amend the
then would have been exercising its discretion in complaint before a responsive pleading is served
allowing or disallowing the amendment. It cannot do (Sec. 2, Rule 10,
so however, because it would be then acting on an
amendment of a complaint over which it has no 1997 Rules of Civil Procedure; Remington
jurisdiction. (Soledad v. Mamangun, G.R. No. L- Industrial Sales
17983, Corporation v. Court of Appeals, G.R. No.
133657, May 29,
2002), still, a complaint cannot be amended to

confer
jurisdiction on a court where there was none to begin

with.
May 30, 1963; Gumabay v. Baralin, G.R. No. L-

30683, May
Pleadings; Amendment of Complaint; To
31, 1977; Prudence Realty v. CA, G.R. No. Conform w/ Evidence (2004)
110274, March 21,
During trial, plaintiff was able to present, without
1994) objection on the part of defendant in an ejectment
case, evidence showing that plaintiff served on
ALTERNATIVE ANSWER: defendant a written demand to vacate the subject
property before the commencement of the suit, a
matter not alleged or otherwise set forth in the
pleadings on file. May the corresponding pleading
still be amended to conform to the evidence?
Explain. (5%)
SUGGESTED ANSWER:
Yes. The corresponding pleading may still be

amended
to conform to the evidence, because the written

demand to vacate, made prior to the commencement
of the ejectment suit, was presented by the plaintiff
in evidence without objection on the part of
the defendant. Even if the demand to vacate was
jurisdictional, still, the amendment proposed was to
conform to the evidence that was already in the
record and not to confer jurisdiction on the court,
which is not allowed. Failure to amend, however,
does not affect the result of the trial on these issues.
(Sec. 5 of Rule 10).
ALTERNATIVE ANSWER: It depends. In
forcible entry, the motion may be allowed at the
discretion of the court, the demand having been Remedial Law Bar Examination Q & A (1997-2006)
presented at the trial without objection on the part of
the defendant. In unlawful detainer, however, the copy of which is Annex "A" of the complaint and
demand to vacate is jurisdictional and since the court made an integral part thereof; and (2) that to
did not acquire jurisdiction from the very beginning, prosecute his complaint, plaintiff contracted a
the motion to conform to the evidence cannot be lawyer, CC, for a fee of P50.000. In his answer,
entertained. The amendment cannot be allowed defendant alleged, inter alia, that he had no
because it will in effect confer jurisdiction when knowledge of the mortgage deed, and he also denied
there is otherwise no jurisdiction. any liability for plaintiffs contracting with a lawyer
for a fee.
Does defendant's answer as to plaintiff’s allegation

no.
1 as well as no. 2 sufficiently raise an issue of fact?

Reason briefly. (5%)
Pleadings; Answer; Defense; Specific Denial
(2004) SUGGESTED ANSWER:
In his complaint for foreclosure of mortgage to As to plaintiffs allegation no. 1, defendant does not
which was duly attached a copy of the mortgage
deed, plaintiff PP alleged inter alia as follows: (1) sufficiently raise an issue of fact, because he cannot
that defendant DD duly executed the mortgage deed, allege lack of knowledge of the mortgage deed since
he should have personal knowledge as to
whether he signed it or not and because he did not
deny under oath the genuineness and due
execution of the mortgage deed, which is an
actionable document. As to plaintiff’s allegation no.
2, defendant did not properly deny liability as to
plaintiffs contracting with a lawyer for a fee. He did
not even deny for lack of knowledge. (Sec. 10 of
Rule 8).
Pleadings; Certification Against Forum Shopping

(2000) As counsel for A, B, C and D, Atty. XY
prepared a complaint for recovery of possession of a
parcel of land against Z. Before filling the
complaint, XY discovered that his clients were not
available to sign the certification of non-forum
shopping. To avoid further delays in the filing of the
complaint, XY signed the certification and
immediately filed the complaint in court. Is XY
justified in signing the certification? Why? (5%)
SUGGESTED ANSWER:
NO, counsel cannot sign the anti-forum shopping
certification because it must be executed by

the “plaintiff or principal party” himself (Sec. 5,
Rule 7; Excorpizo v. University of Baguio, 306 by: sirdondee@gmail.com Page 29 of 66 he being
SCRA 497, [1999]), since the rule requires personal merely plaintiffs counsel. Is the counterclaim of DY
knowledge by the party executing the certification, compulsory or not? Should AC's motion to dismiss
UNLESS counsel gives a good reason why he is not the counterclaim be granted or not? Reason. (5%)
able to secure his clients’ signatures and shows that
his clients will be deprived of substantial justice
(Ortiz v. Court of Appeals, 299 SCRA
SUGGESTED ANSWER:
708, [1998]) or unless he is authorized to sign it by
his clients through a special power of attorney. Yes. The counterclaim of DY is compulsory because
it
is one which arises out of or is connected with the

transaction or occurrence constituting the subject
matter of the opposing party's claim and does not
Pleadings; Counterclaim against the Counsel require for its adjudication the presence of third
of the parties of whom the court cannot acquire
jurisdiction.(Sec. 7 of Rule 6).
Plaintiff (2004)
PX filed a suit for damages against DY. In his

answer, DY incorporated a counterclaim for
damages against PX and AC, counsel for plaintiff in
said suit, alleging in said counterclaim, inter alia, The motion to dismiss of plaintiffs counsel should
that AC, as such counsel, maliciously induced PX to not be granted because bringing in plaintiffs counsel
bring the suit against DY despite AC's knowledge of as a defendant in the counterclaim is authorized
its utter lack of factual and legal basis. In due time, by the Rules. Where it is required for the grant of
AC filed a motion to dismiss the counterclaim as complete relief in the determination of the
against him on the ground that he is not a proper counterclaim, the court shall order the defendant's
party to the case, counsel to be brought in since jurisdiction over
him can be obtained. (Sec. 12 of Rule 6; Aurelio v.
Court of Appeals, 196 SCRA 674 [1994]). Here,
the counterclaim was against both the plaintiff and
his lawyer who allegedly maliciously induced the
plaintiff to file the suit.
ALTERNATIVE ANSWER:
The counterclaim should be dismissed because it is

not
a compulsory counterclaim. When a lawyer files a

case for a client, he should not be sued on a
counterclaim in the very same case he has filed as
counsel. It should be filed in a separate and distinct
civil action. (Chavez v. Sandiganbayan, 193
SCRA 282
[1991])
Pleadings; Motions; Bill of Particulars (2003)

1 When can a bill of particulars be availed of?
2 What is the effect of non-compliance with Remedial Law Bar Examination Q & A (1997-2006)
the order of a bill of particulars? 4% executed and signed by X and Y two weeks after the
contract of sale was executed. The contract of lease
SUGGESTED ANSWER: was attached to the answer. X does not file a reply.
What is the effect of the non-filing of a reply?
1 Before responding to a pleading, a party Explain. (3%)
may
SUGGESTED ANSWER:
move for a bill or particulars of any matter which is
not averred with sufficient definiteness or A reply is generally optional. If it is not filed, the
particularity to enable him properly to prepare his new
responsive pleading. If the pleading is a reply, the
motion must be filed within ten (10) days from matters alleged in the answer are deemed
service thereof. (Sec. 1 of Rule controverted. (Sec.
12) 10 of Rule 6). However, since the contract of lease

attached to the answer is the basis of the defense, by
2 If the order is not complied with, the court not filing a reply denying under oath the genuineness
may order the striking out of the pleading or the and due execution of said contract, the plaintiff is
portions thereof to which the order was directed or deemed to have admitted the genuineness and due
make such other order as it deems just. (Sec. 4 of execution thereof. (Secs. 7 and 8
Rule 12)
Rule 8; Toribio v. Bidin, 132 SCRA 162 [1985]).

Pleadings; Reply; Effect of Non-Filing of Reply
(2000)
X files a complaint in the RTC for the recovery of a

sum of money with damages against Y. Y files his
answer denying liability under the contract of sale
and praying for the dismissal of the complaint
on the ground of lack of cause of action because the
contract of sale was superseded by a contract of
lease,
by: sirdondee@gmail.com Page 30 of 66 Prejudicial Question; Ejectment vs. Specific
Performance
Provisional Remedies; Attachment (1999)
(2000)
In a case, the property of an incompetent under
guardianship was in custodia legis. Can it be BB files a complaint for ejectment in the MTCon the
attached? Explain. (2%) ground of non-payment of rentals against JJ. After
two days, JJ files in the RTC a complaint against BB
SUGGESTED ANSWER: for specific performance to enforce the option to
purchase the parcel of land subject of the ejectment
Although the property of an incompetent case. What is the effect of JJ’s action on BB’s
under complaint? Explain. (5%)
guardianship is in custodia legis, it may be attached SUGGESTED ANSWER:
as in fact it is provided that in such case, a copy of
the writ of attachment shall be filed with the proper There is no effect. The ejectment case involves
court and notice of the attachment served upon the
custodian of such property. (Sec. 7, last par., Rule possession de facto only. The action to enforce the
57) option to purchase will not suspend the action
of ejectment for non-payment of rentals. (Willman
Auto Supply Corp. v. Court of Appeals, 208
SCRA 108 [1992]).
May damages be claimed by a party prejudiced by a

wrongful attachment even if the judgment is adverse Pre-Trial; Requirements (2001)
to him? Explain. (2%)
Lilio filed a complaint in the Municipal Trial Court
of Lanuza for the recovery of a sum against Juan.
The latter filed his answer to the complaint serving a
copy thereof on Lilio. After the filing of the answer
of Juan, whose duty is it to have the case set for pre-
trial? Why? (5%)
SUGGESTED ANSWER:
After the filing of the answer of Juan, the

PLAINTIFF
has the duty to promptly move ex parte that the case

be set for pre-trial. (Sec. 1, Rule18). The reason is
that it is the plaintiff who knows when the last
pleading has been filed and it is the plaintiff who
has the duty to prosecute.
ALTERNATIVE ANSWER:
In the event the plaintiff files a reply, his duty to

move
that the case be set for pre-trial arises after the reply
has been served and filed.
Provisional Remedies (1999)

What are the provisional remedies under the rules? SUGGESTED ANSWER:
(2%)
Yes, damages may be claimed by a party prejudiced
SUGGESTED ANSWER: by
The provisional remedies under the rules are a wrongful attachment even if the judgment is
preliminary adverse to him. This is authorized by the Rules. A
claim, for damages may be made on account of
attachment, preliminary injunction, improper, irregular or excessive attachment, which
receivership, replevin, and support pendente lite. shall be heard with notice to the adverse party and
(Rules his surety or sureties. (Sec. 20, Rule 57; Javellana
v. D. O.
57 to 61, Rules of Court).
Plaza Enterprises Inc., 32 SCRA 281.)
May a writ of preliminary attachment be issued ex-

parte? Briefly state the reason(s) for your answer.
(3%)
SUGGESTED ANSWER:
Yes, an order of attachment may be issued ex-parte

or
upon motion with notice and hearing. (Sec. 2 of Rule

57) The reason why the order may be issued ex parte
is: that requiring notice to the adverse party and a
hearing would defeat the purpose of the provisional
remedy and enable the adverse party to abscond or
dispose of his property before a writ of attachment
issues. (Mindanao Savings and Loan Association,
Inc. v.
Court of Appeals, 172 SCRA 480).
Katy filed an action against Tyrone for collection of

the sum of P1 Million in the RTC, with an ex-parte
application for a writ of preliminary attachment.
Upon posting of an attachment bond, the court
granted the application and issued a writ of
preliminary attachment. Apprehensive that Tyrone
might withdraw his savings deposit with the bank,
the sheriff immediately served a notice of
garnishment on the bank to implement the writ of
preliminary attachment. The following day, the
sheriff proceeded to Tyrone's house and served him
the summons, with copies of the complaint
containing the application for writ of preliminary
attachment, Katy's affidavit, order of attachment, Remedial Law Bar Examination Q & A (1997-2006)
writ of preliminary attachment and attachment bond.
Within fifteen (15) days from service of the

summons, Tyrone filed a motion to dismiss and to

by: sirdondee@gmail.com Page 31 of 66 dissolve the writ of preliminary attachment on
preliminary the injunction may cause grave and irreparable
injury to the party following grounds: (i) the
court did not acquire enjoined.
jurisdiction over his person because the writ was

served
ahead of the summons; (ii) the writ was improperly SUGGESTED ANSWER:
implemented; and (iii) said writ was
improvidently issued because the obligation in Attachment and garnishment are distinguished
question was already fully paid. Resolve the motion from
with reasons. (4%)
each other as follows: ATTACHMENT is a
provisional remedy that effects a levy on property of
a party as security for the satisfaction of any
SUGGESTED ANSWER: judgment that may be recovered, while
GARNISHMENT is a levy on debts due the
The motion to dismiss and to dissolve the writ judgment obligor or defendant and other credits,
of including bank deposits, royalties and other personal
property not capable of manual delivery under a writ
preliminary attachment should be denied. of execution or a writ of attachment.
(1) The fact that the writ of attachment was served
ahead of the summons did not affect the jurisdiction
of the court over his person. It makes the
writ, unenforceable. (Sec. 5, Rule. 57) However,
all that is needed to be done is to re-serve the writ. Provisional Remedies; Injunction (2001)
(Onate v. Abrogar, GM. No. 197393, February
23, 1985) May a writ of preliminary injunction be issued ex-
parte? Why? (3%)
SUGGESTED ANSWER:
(2) The writ was improperly implemented. Serving a
notice of garnishment, particularly before summons No, a writ of preliminary injunction may not be
is served, is not proper. It should be a copy of the issued
writ of attachment that should be served on the
defendant, and a notice that the bank deposits are ex parte. As provided in the Rules, no preliminary
attached pursuant to the writ. (Sec. 7[d], Rule 57) injunction shall be granted without hearing and prior
notice to the party or person sought to be enjoined.
(Sec.
(3) The writ was improvidently issued if indeed it 5 of Rule 58) The reason is that a
can be shown that the obligation was already fully
paid. The writ is only ancillary to the main action.
(Sec. 13, Rule
57) The alleged payment of the account cannot,

serve as a ground for resolving the improvident
issuance of the writ, because this matter delves into
the merits of the case, and requires full-blown trial.
Payment, however, serves as a ground for a motion
to dismiss.
Provisional Remedies; Attachment vs.

Garnishment
(1999)
Distinguish attachment from garnishment. (2%)

Provisional Remedies; Injunction (2003) Generally, however, preliminary injunction cannot
issue
Can a suit for injunction be aptly filed with the
Supreme Court to stop the President of the without bond unless exempted by the trial court
Philippines from entering into a peace agreement (Sec. 4[b] of
with the National Democratic Front? (4%)
Rule 58).
SUGGESTED ANSWER:
No, a suit for injunction cannot aptly be filed with

the Provisional Remedies; Injunctions; Requisites
(2006) What are the requisites for the issuance of (a)
Supreme Court to stop the President of the a writ of preliminary injunction; and (b) a final
Philippines from entering into a peace agreement writ of injunction? Requisites for the issuance of a:
with the National Democratic Front, which is a
purely political question. (Madarang v. Santamaria,
37 Phil. 304 [1917]). The President of the
Philippines is immune from suit. SUGGESTED ANSWER:
a. Writ of Preliminary Injunction (Sec. 4, Rule 58

1997
Rules of Civil Procedure) are —

Provisional Remedies; Injunctions; Ancillary
(1) A verified complaint showing; (2) The existence
Remedy vs. Main Action (2006)
of a right in esse;
Distinguish between injunction as an ancillary
remedy and injunction as a main action. (2.5%) (3) Violation or threat of violation of such right;
SUGGESTED ANSWER: (4) Damages or injuries sustained or that will be sus-

tained by reason of such violation;
Injunction as an ancillary remedy refers to
the (5) Notice to all parties of raffle and of hearing; (6)
Hearing on the application;
preliminary injunction which requires the existence
of a pending principal case; while injunction as a (7) Filing of an appropriate bond and service thereof.
main action refers to the principal case itself that
prays for the remedy of permanently restraining
the adverse party from doing or not doing the act SUGGESTED ANSWER:
complained of.
b. While a final writ of injunction may be rendered
by
Provisional Remedies; Injunctions; Issuance judgment after trial, showing applicant to be entitled
w/out Bond to the writ (Sec. 9, Rule 58 1997 Rules of Civil
Procedure).
(2006)
May a Regional Trial Court issue injunction without

bond? (2%)
SUGGESTED ANSWER:
Yes, if the injunction that is issued is a final

injunction.
by: sirdondee@gmail.com Page 32 of 66 waived,
reserved or instituted prior to its filing, the accused
Remedial Law Bar Examination Q & A (1997-2006) may be ordered to provide support pendente lite to
the child born to the
Provisional Remedies; Receivership (2001)

Joaquin filed a complaint against Jose for pendency of the foreclosure suit, Joaquin learned
the offended party allegedly because of the crime. from reliable sources that Jose was quietly and
(Sec. 6 of Rule gradually disposing of some of his machinery and
equipment to a businessman friend who was also
foreclosure of a mortgage of a furniture factory with engaged in furniture manufacturing such that
a 61.) from confirmed reports Joaquin gathered, the
machinery and equipment left with Jose were no
large number of machinery and equipment. During longer sufficient to answer for the latter’s mortgage
the indebtedness. In the meantime judgment was
rendered by the court in favor of Joaquin but the
same is not yet final.
Knowing what Jose has been doing. If you were

Joaquin’s lawyer, what action would you take to
preserve whatever remaining machinery and
equipment are left with Jose? Why? (5%)
SUGGESTED ANSWER:
To preserve whatever remaining machinery

and
equipment are left with Jose, Joaquin’s lawyer

should file a verified application for the appointment
by the court of one or more receivers. The Rules
provide that receivership is proper in an action by
the mortgagee for the foreclosure of a mortgage
when it appears that the property is in danger of
being wasted or dissipated or materially injured and
that its value is probably insufficient to discharge the
mortgage debt.
(Sec. 1 of Rule 59).
Provisional Remedies; Replevin (1999)
What is Replevin? (2%)
SUGGESTED ANSWER:
Replevin or delivery of personal property consists in
the delivery, by order of the court, of personal

property by the defendant to the plaintiff, upon the
filing of a bond. (Calo v. Roldan, 76 Phil. 445
[1946])
Provisional Remedies; Support Pendente Lite Provisional Remedies; Support Pendente Lite
(1999) Before the RTC, A was charged with rape of (2001) Modesto was accused of seduction by
his 16year old daughter. During the pendency of Virginia, a poor, unemployed young girl, who has a
the case, the daughter gave birth to a child child by Modesto. Virginia was in dire need of
allegedly as a consequence of the rape. pecuniary assistance to keep her child, not to say of
Thereafter, she asked the accused to support the herself, alive. The criminal case is still pending in
child, and when he refused, the former filed a court and although the civil liability aspect of the
petition for support pendente lite. The accused, crime has not been waived or reserved for a separate
however, insists that he cannot be made to give such civil action, the trial for the case was foreseen to
support arguing that there is as yet no finding as to take two long years because of the heavily clogged
his guilt. Would you agree with the trial court if it court calendar before the judgment may be
denied the application for support pendente lite? rendered. If you were the lawyer of Virginia, what
Explain. (2%) action should you take to help Virginia in the
meantime especially with the problem of feeding the
SUGGESTED ANSWER: child? (5%)
No. The provisional remedy of support pendente lite SUGGESTED ANSWER:
may be granted by the RTC in the criminal action for To help Virginia in the meantime, her lawyer should
rape. In criminal actions where the civil liability
includes support for the offspring as a consequence apply for Support Pendente Lite as provided in the
of the crime and the civil aspect thereof has not been Rules. In criminal actions where the civil liability
included support for the offspring as a
consequence of the crime and the civil aspect
thereof has not been waived or reserved for a
separate civil action, the accused may be ordered to
provide support pendent elite to the child born to
the offended party. (Sec. 6 of
Rule 61)
Provisional Remedies; TRO (2001)
An application for a writ of preliminary injunction

with a prayer for a temporary restraining order is
included in a complaint and filed in a multi-sala
RTC consisting of Branches 1,2,3 and 4. Being
urgent in nature, the Executive Judge, who was
sitting in Branch 1, upon the filing of the aforesaid
application immediately raffled the case in the
presence of the judges of Branches 2,3 and 4. The
case was raffled to Branch 4 and judge thereof
immediately issued a temporary restraining order. Is
the temporary restraining order valid? Why? (5%)
SUGGESTED ANSWER:
No. It is only the Executive Judge who can

issue
immediately a temporary restraining order effective

only for seventy-two (72) hours from issuance. No
other Judge has the right or power to issue a
temporary restraining order ex parte. The Judge to
whom the case is assigned will then conduct a
summary hearing to determine whether the Remedial Law Bar Examination Q & A (1997-2006)
temporary restraining order shall be extended, but in
no case beyond 20 days, including the original Provisional Remedies; TRO (2006)
72hour period. (Sec. 5 of Rule 58) Define a temporary restraining order (TRO). (2%)
SUGGESTED ANSWER:
ALTERNATIVE ANSWER: A temporary restraining order is an order issued to
The temporary restraining order is not valid because restrain the opposite party and to maintain the status
the question does not state that the matter is of quo until a hearing for determining the propriety of
extreme urgency and the applicant will suffer grave granting a preliminary injunction (Sec. 4[c] and [d],
injustice and irreparable injury. (Sec. 5 of Rule 58) Rule
58,1997 Rules of Civil Procedure).
Provisional Remedies; TRO vs. Status Quo Order

(2006) Differentiate a TRO from a status quo order.
(2%) SUGGESTED ANSWER:
A status quo order (SQO) is more in the nature of a
cease and desist order, since it does not direct the

doing or undoing of acts, as in the case of
prohibitory or mandatory injunctive relief. A TRO is
only good for
20 days if issued by the RTC; 60 days if issued by

the CA; until further notice if issued by the SC. The
SQO is without any prescriptive period and may be
issued without a bond. A TRO dies a natural death
after the allowable period; the SQO does not. A
TRO is provisional. SQO lasts until revoked. A TRO
is not extendible, but the SQO may be subject to
agreement of the parties.
Provisional Remedies; TRO; CA Justice Dept.

(2006)
May a justice of a Division of the Court of Appeals

issue a TRO? (2%)
SUGGESTED ANSWER:
Yes, a justice of a division of the Court of Appeals

may
issue a TRO, as authorized under Rule 58 and by

Section
5, Rule IV of the IRCA which additionally requires by: sirdondee@gmail.com Page 33 of 66 Was the
that the action shall be submitted on the next motion for Reconsideration filed within the
working day to the absent members of the division reglementary period? Explain. (5%)
for the ratification, modification or recall (Heirs of
the SUGGESTED ANSWER:
late Justice Jose B.L. Reyes v. Court of Appeals, Yes, because the last day of filing a motion for
G.R. Nos.
reconsideration was March 15 if February had 28
135425-26, November 14, 2000). days or March 16 if February had 29 days. Although
the original motion for reconsideration was
defective because it lacked a notice of hearing, the
defect was cured on time by its filing on March
Provisional Remedies; TRO; Duration (2006) 15 of a supplemental pleading, provided that
motion was set for hearing and served on the adverse
What is the duration of a TRO issued by the party at least three (3) days before the date of
Executive hearing.(Sec. 4, Rule 15). ALTERNATIVE
Judge of a Regional Trial Court? (2%) ANSWER:
SUGGESTED ANSWER: Since the supplemental pleading was not set for
In cases of extreme urgency, when the applicant will hearing, it did not cure the defect of the
original motion.
suffer grave injustice and irreparable injury,
the duration of a TRO issued ex parte by an
Executive Judge of a Regional Trial Court is 72 Remedies; Appeal to SC; Appeals to CA (2002)
hours (2nd par. of Sec.
a) What are the modes of appeal to the
5, Rule 58 1997 Rules of Civil Procedure). In the Supreme
exercise of his
Court? (2%)
regular functions over cases assigned to his sala, an
Executive Judge may issue a TRO for a duration not b) Comment on a proposal to amend Rule 122,
exceeding a total of 20 days. Section 2(b), in relation to Section 3(c), of the
Revised Rules of Criminal Procedure to provide for
appeal to the Court of Appeals from the decisions of
Reglementary Period; Supplemental Pleadings the RTC in criminal cases, where the penalty
(2000) imposed is reclusion perpetua or life imprisonment,
subject to the right of the accused to appeal to the
The RTC rendered judgment against ST, copy Supreme Court. (3%)
of which was received by his counsel on February
28,
2000. On March 10, 2000, ST, through counsel, filed SUGGESTED ANSWER:
a motion for reconsideration of the decision with A. The modes of appeal to the Supreme Court are:
notice to the Clerk of Court submitting the motion (a)
for the consideration of the court. On March 15,
2000, realizing that the Motion lacked a notice of APPEAL BY CERTIORARI on pure questions of
hearing, ST’s counsel filed a supplemental pleading. law under Rule 45 through a petition for review on
certiorari; and (b) ORDINARY APPEAL in criminal
cases through a notice of appeal from convictions
imposing reclusion perpetua or life imprisonment or
where a lesser penalty is involved but for offenses
committed on the same occasion or which arose out
of the same occurrence that gave rise to the more
serious offense. (Rule 122, sec. 3) Convictions
imposing the death penalty are elevated through Remedial Law Bar Examination Q & A (1997-2006)
automatic review.
June 16, 1999. On June 13, 1999, YYY, who did not
appeal, filed with the RTC a motion for approval of
the Compromise Agreement. XXX changed his
mind and opposed the motion on the ground that the
RTC has no more jurisdiction. Rule on the motion
B. There is no constitutional objection to providing assuming that the records have not yet been
in the Rules of Court for an appeal to the Court forwarded to the CA. (2%)
of Appeals from the decisions of the RTC in
criminal cases where the penalty imposed is SUGGESTED ANSWER:
reclusion perpetua or life imprisonment subject to
the right of the accused to appeal to the Supreme
Court, because it does not deprive the Supreme
Court of the right to exercise ultimate review of the
judgments in such cases.
Remedies; Appeal; RTC to CA (1999)
When is an appeal from the RTC to the Court of

Appeals deemed perfected? (2%}
XXX received a copy of the RTC decision on
June 9, 1999; YYY received it on the next day, June
10, 1999. XXX filed a Notice of Appeal on June 15,
1999. The parties entered into a compromise on

by: sirdondee@gmail.com Page 34 of 66 there is no An appeal from the RTC to the Court of Appeals
appeal nor any plain, speedy and adequate remedy in and the lower court is not impleaded. In certiorari,
the ordinary course of law, to be filed within sixty
(60) days from notice of the judgment, order or is deemed perfected as to the appellant upon the
resolution subject of the petition. (Secs. 1 and 4.) filing of a under Rule 65, the lower court is
impleaded. notice of appeal in the RTC in due
time or within the
ADDITIONAL ANSWER: reglementary period of appeal. An appeal by

record on 2) In appeal by certiorari, the filing of a
1) In appeal by certiorari under Rule 45, the motion for appeal is deemed perfected as to the
petitioner appellant with respect to reconsideration is not
required, while in the special the subject matter
and respondent are the original parties to the action thereof upon the approval of the record on civil
action of certiorari, such a motion is generally
appeal filed in due time. (Sec. 9, Rule 41) required.
The contention of XXX that the RTC has no more

jurisdiction over the case is not correct because at appeal of the other parties.
the time SUGGESTED ANSWER:
that the motion to approve the compromise had been

filed, b. NO, because as a general rule, certiorari is
proper if the period of appeal of YYY had not yet
expired. Besides, there is no appeal (Sec. 1 of Rule
65.) However, if appeal is even if that period had (Sec. 9, third par., Rule 41)
already expired, the records of the case not a speedy
and adequate remedy, certiorari may be had not yet
been forwarded to the Court of Appeals. The
resorted to. (Echaus v. Court of Appeals, 199 The rules also provide that prior to the transmittal of
SCRA 381.) rules provide that in appeals by notice the record, the court may, among others, approve
of appeal, the court Certiorari is sanctioned, even if compromises. (Sec. 9, fifth par., Rule 41) (Note:
appeal is available, on loses jurisdiction over the June 13, the date of the filing of the motion for
case upon the perfection of the the basis of a patent, approval of the Compromise Agreement, appears to
capricious and whimsical exercise appeals filed in be a clerical error)
due time and the expiration of the time to of
discretion by a trial judge as when an appeal will not
Remedies; Appeal; Rule 45 vs. Rule 65 (1999)
a) Distinguish a petition for certiorari as a

mode of appeal from a special civil action for
certiorari. (2%)
b) May a party resort to certiorari when appeal

is still available? Explain. (2%)
SUGGESTED ANSWER:
a. A PETITION FOR REVIEW ON CERTIORARI
as a mode of appeal may be distinguished from a

special civil action for certiorari in that the
petition for certiorari as a mode of appeal is
governed by Rule 45 and is filed from a judgment or
final order of the RTC, the Sandiganbayan or the
Court of Appeals, within fifteen (15) days from
notice of the judgment appealed from or of the
denial of the motion for new trial or reconsideration
filed in due time on questions of law only (Secs. 1
and 2); SPECIAL CIVIL ACTION FOR
CERTIORARI is governed by Rule 65 and is filed to
annul or modify judgments, orders or resolutions
rendered or issued without or in excess of
jurisdiction or with grave abuse of discretion
tantamount to lack or excess of jurisdiction, when
promptly relieve petitioner from the injurious effects
of
the disputed order
on appeal, the plaintiff is deemed to have waived his
(Vasquez vs. Robilla-Alenio, 271 SCRA 67) right to present evidence. (Id.)
Remedies; Void Decision; Proper Remedy (2004) Special Civil Action; Ejectment (1997)
After plaintiff in an ordinary civil action before On 10 January 1990, X leased the warehouse of A
the RTC; ZZ has completed presentation of his
evidence, defendant without prior leave of court under a lease contract with a period of five years. On
moved for dismissal of plaintiffs complaint for
insufficiency of plaintiff’s evidence. After due 08 June 1996, A filed an unlawful detainer case
hearing of the motion and the opposition thereto, against X without a prior demand for X to
the court issued an order, reading as follows: The vacate the premises.
Court hereby grants defendant's motion to dismiss (a) Can X contest his ejectment on the ground that
and accordingly orders the dismissal of plaintiff’s
complaint, with the costs taxed against him. It is there was no prior demand for him to vacate the
so ordered." Is the order of dismissal valid? May premises?
plaintiff properly take an appeal? Reason. (5%)
(b) In case the Municipal Trial Court renders
judgment in favor of A, is the judgment immediately
executory?
SUGGESTED ANSWER:
The order or decision is void because it does not

state SUGGESTED ANSWER:
findings of fact and of law, as required by Sec. 14, (a) Yes. X can contest his ejectment on the ground
Article VIII of the Constitution and Sec. 1, Rule 36. that
Being void, appeal is not available. The proper
remedy is certiorari under Rule 65. there was no prior demand to vacate the premises.
(Sec.
ANOTHER ANSWER:
2 of Rule 70; Casilan vs.Tomassi l0 SCRA 261;
Either certiorari or ordinary appeal may be resorted Iesaca vs.Cuevas. 125 SCRA 335).
to
on the ground that the judgment is void. Appeal, in

fact, may be the more expedient remedy. (b) Yes, because the judgment of the Municipal Trial
Court against the defendant X is immediately
ALTERNATIVE ANSWER: executory upon motion unless an appeal has been
perfected, a supersedeas bond has been filed and the
Yes. The order of dismissal for insufficiency of the periodic deposits of current rentals. If any, as
plaintiffs evidence is valid upon defendant's motion determined by the judgment will be made with the
to dismiss even without prior leave of court. (Sec. 1 appellate court. (Sec. 8 of former Rule 70; Sec. 19 of
of Rule new Rule 70).
33). Yes, plaintiff may properly take an appeal ALTERNATIVE ANSWER:

because the dismissal of the complaint is a final and (a) Yes, X can contest his ejectment on the ground
appealable order. However, if the order of dismissal that
is reversed
since he continued enjoying the thing leased for by: sirdondee@gmail.com Page 35 of 66 summary
fifteen days after the termination of the lease on procedure and since the counterclaim is only
January 9, permissive, it cannot be entertained by the Municipal
Court. (Revised Rule on Summary Procedure.)
1995 with the acquiescence of the lessor without
a
notice to the contrary, there was an IMPLIED NEW Special Civil Action; Foreclosure (2003)
LEASE. (Art. 1670. Civil Code).
A borrowed from the Development Bank of the
Philippines (DBP) the amount of P1 million secured
by the titled land of his friend B who, however, did
Special Civil Action; Ejectment (1998) not assume personal liability for the loan. A
defaulted and DBP filed an action for judicial
In an action for unlawful detainer in the Municipal foreclosure of the real estate mortgage impleading A
Trial Court (MTC), defendant X raised in his and B as defendants. In due course, the court
Answer the defense that plaintiff A is not the real rendered judgment directing A to pay the
owner of the house subject of the suit. X filed a outstanding account of P1.5 million (principal plus
counterclaim against A for the collection of a debt of interest) to the bank. No appeal was taken by A on
P80,000 plus accrued interest of P15,000 and the Decision within the reglementary period. A
attorney's fees of P20,000. failed to pay the judgment debt within the period
specified in the decision. Consequently, the court
ordered the foreclosure sale of the mortgaged land.
1. Is X's defense tenable? [3%] In that foreclosure sale, the land was sold to the DBP
for P1.2 million. The sale was subsequently
2. Does the MTC have jurisdiction over the confirmed by the court, and the confirmation of the
sale was registered with the Registry of Deeds on 05
counterclaim? [2%] SUGGESTED ANSWER:: January 2002.
1. No. X's defense is not tenable if the action is filed

by a lessor against a lessee. However, if the right of
possession of the plaintiff depends on his ownership On 10 January 2003, the bank filed an ex-parte
then the defense is tenable. motion with the court for the issuance of a writ of
possession to oust B from the land. It also filed a
deficiency claim for P800,000.00 against A and B.
the deficiency claim was opposed by A and B.
2. The counterclaim is within the jurisdiction of the
Municipal Trial Court which does not exceed
P100,000, because the principal demand is P80,000,
exclusive of interest and attorney's fees. (Sec. 33, (a) Resolve the motion for the issuance of a writ of
B.P. Big. 129, as amended.) However, inasmuch as p(bo)sRseesssoiolvne. the deficiency claim of the
all actions of forcible entry and unlawful detainer are bank. 6% SUGGESTED ANSWER:
subject to
(a) In judicial foreclosure by banks such as DBP, the
mortgagor or debtor whose real property has been
sold on foreclosure has the right to redeem the
property sold within one year after the sale (or
registration of the sale). However, the purchaser at
the auction sale has the right to obtain a writ of
possession after the finality of the order confirming
the sale. (Sec. 3 of Rule 68; Sec. 47 of RA 8791. The
General Banking Law of 2000). The motion for writ
of possession, however, cannot be filed ex parte.
There must be a notice of hearing.
(b) The deficiency claim of the bank may be

enforced against the mortgage debtor A, but it
cannot be enforced against B, the owner of the
mortgaged property, who did not assume personal
liability for the loan.
Special Civil Action; Petition for Certiorari

(2002)
The defendant was declared in default in the RTC

for his failure to file an answer to a complaint for a
sum of money. On the basis of the plaintiff’s ex
parte presentation of evidence, judgment by default
was rendered against the defendant. The default
judgment was served on the defendant on October 1,
2001. On October 10, 2001, he files a verified
motion to lift the
without or in excess of jurisdiction in denying the
defendant’s motion because it was not accompanied
Remedial Law Bar Examination Q & A (1997-2006) by a separate affidavit of merit. In his verified
motion to lift the order of default and to set aside the
order of default and to set aside the judgment. In his judgment, the defendant alleged that immediately
motion, the defendant alleged that, immediately upon the receipt of the summons, he saw the plaintiff
upon receipt of the summon, he saw the plaintiff and and confronted him with his receipt showing
confronted him with his receipt evidencing his payment and that the plaintiff assured him that he
payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint.
would instruct his lawyer to withdraw the complaint. Since the good defense of the defendant was
The trial court denied the defendant’s motion already incorporated in the verified motion, there
because it was not accompanied by an affidavit of was not need for a separate affidavit of merit.
merit. The defendant filed a special civil action for [Capuz
certiorari under Rule 65 challenging the denial order.
A. Is certiorari under Rule 65 the proper

remedy? Why? (2%)
B. Did the trial court abuse its discretion or act

without
v. Court of Appeals, 233 SCRA 471 (1994); Mago
or in excess of its jurisdiction in denying v. Court of
the defendant’s motion to lift the order of
default judgment? Why? (3%) Appeals, 303 SCRA 600 (1999)].
SUGGESTED ANSWER:
A. The petition for certiorari under Rule 65 filed by Special Civil Action; Quo Warranto (2001)
the
A group of businessmen formed an association
defendant is the proper remedy because appeal is not in Cebu City calling itself Cars C. to distribute / sell
a plain, speedy and adequate remedy in the ordinary cars in said city. It did not incorporate itself under
course of law. In appeal, the defendant in default can the law nor did it have any government permit or
only question the decision in the light of the license to conduct its business as such. The
evidence of the plaintiff. The defendant cannot Solicitor General filed before a RTC in Manila a
invoke the receipt to prove payment of his verified petition for quo warranto questioning and
obligation to the plaintiff. seeking to stop the operations of Cars Co. The
latter filed a motion to dismiss the petition on the
ALTERNATIVE ANSWER: ground of improper venue
A. Under ordinary circumstances, the proper remedy
of a party wrongly declared in default is either

to appeal from the judgment by default or file a
petition for relief from judgment. [Jao, Inc. v.
Court of Appeals,
251 SCRA 391 (1995)
SUGGESTED ANSWER:
B. Yes, the trial court gravely abused its discretion

or acted
by: sirdondee@gmail.com Page 36 of 66 claiming Is a petition for mandamus an appropriate
that its main office and operations are in Cebu City remedy to enforce contractual obligations? (5%)
and not in Manila. Is the contention of Cars Co.
correct? Why? (5%) SUGGESTED ANSWER:
No, the petition for mandamus is not an appropriate
SUGGESTED ANSWER: remedy because it is not available to enforce a

contractual obligation. Mandamus is directed only to
No. As expressly provided in the Rules, when ministerial acts, directing or commanding a person
the to do a legal duty (COMELEC v. Quijano-Padilla,
G.R.
Solicitor General commences the action for quo
warranto, it may be brought in a RTC in the City of No. 151992, September 18, 2002; Sec. 3, Rule 65).
Manila, as in this case, in the Court of Appeals or in
the Supreme Court. (Sec. 7 of Rule 66)
Summons
Special Civil Actions; Mandamus (2006) Seven years after the entry of judgment, the plaintiff
filed an action for its revival. Can the defendant
In 1996, Congress passed Republic Act No. 8189, successfully oppose the revival of the judgment by
otherwise known as the Voter's Registration Act contending that it is null and void because the RTC-
of Manila did not acquire jurisdiction over his person?
Why? (3%)
1996, providing for computerization of elections.
Pursuant thereto, the COMELEC approved the SUGGESTED ANSWER:
Voter's Registration and Identification System
(VRIS) Project. It issued invitations to pre-qualify The RTC-Manila should deny the motion because it
and bid for the project. After the public bidding, is
Fotokina was declared the winning bidder with a bid
of P6 billion and was issued a Notice of Award. But in violation of the rule that no judgment obligor shall
COMELEC Chairman Gener Go objected to the be required to appear before a court, for the purpose
award on the ground that under the Appropriations of examination concerning his property and
Act, the budget for the COMELEC's modernization
is only P1 billion. He announced to the public that
the VRIS project has been set aside. Two
Commissioners sided with Chairman Go, but the
majority voted to uphold the contract.
Meanwhile, Fotokina filed with the RTC a petition

for mandamus compel the COMELEC to implement
the contract. The Office of the Solicitor General
(OSG), representing Chairman Go, opposed the
petition on the ground that mandamus does not lie to
enforce contractual obligations. During the
proceedings, the majority Commissioners filed a
manifestation that Chairman Go was not authorized
by the COMELEC En Banc to oppose the petition.
c) No. A defendant who was substituted for the
deceased need not be served with summons because
Remedial Law Bar Examination Q & A (1997-2006) it is the court which orders him as the legal
income, outside the province or city in which such representative of the deceased to appear and
obligor resides. In this case the judgment substitute the deceased. (Sec. 16 of Rule 3.)
obligor resides in Bulacan. (Rule 39, sec.36).
d) Summons on a domestic corporation

Summons (1999) through its cashier and director are not valid under
the present rules. (Sec. 11, Rule 14) They have been
a) What is the effect of absence of summons on removed from those who can be served with
the judgment rendered in the case? (2%) summons for a domestic corporation. Cashier was
b) When additional defendant is impleaded substituted by treasurer. (Id.)
in
the action, is it necessary that summons be

served upon him? Explain. (2%)
Summons; Substituted Service (2004)
c) Is summons required to be served upon a
defendant who was substituted for the deceased? Summons was issued by the MM RTC and actually
Explain. (2%) received on time by defendant from his wife at their
residence. The sheriff earlier that day had delivered
d) A sued XX Corporation (XXC), a the summons to her at said residence because
corporation organized under Philippine laws, for defendant was not home at the time. The sheriffs
specific performance when the latter failed to deliver return or proof of service filed with the court in sum
T-shirts to the former as stipulated in their contract states that the summons, with attached copy of the
of sale. Summons was served on the corporation's complaint, was served on defendant at his residence
cashier and director. Would you consider service of thru his wife, a person of suitable age and discretion
summons on either officer sufficient? Explain. (2%) then residing therein. Defendant moved to dismiss
on
SUGGESTED ANSWER:
a) The effect of the absence of summons on a
judgment would make the judgment null and void

because the court would not have jurisdiction over
the person of the defendant, but if the defendant
voluntarily appeared before the court, his appearance
is equivalent to the service of summons. (Sec. 20,
Rule 14)
b) Yes. Summons must be served on an

additional defendant impleaded in the action so that
the court can acquire jurisdiction over him, unless he
makes a voluntary appearance.
by: sirdondee@gmail.com Page 37 of 66 the ground Linda, his secretary. However, Carlos failed to file
that the court had no jurisdiction over his person as an answer to the complaint within the 15-day
there was no valid service of summons on him reglementary period. Hence, Tina filed with the
because the sheriffs return or proof of service does court a motion to declare Carlos in default and to
not show that the sheriff first made a genuine allow her to present evidence ex parte. Five days
attempt to serve the summons on defendant thereafter, Carlos filed his verified answer to the
personally before serving it thru his wife. Is the complaint, denying under oath the genuineness and
motion to dismiss meritorious? What is the purpose due execution of the promissory note and contending
of summons and by whom may it be served? that he has fully paid his loan with interest at
Explain. (5%)
12% per annum.
SUGGESTED ANSWER:
The motion to dismiss is not meritorious because the
defendant actually received the summons on time

from his wife. Service on the wife was sufficient. 1. Was the summons validly served on
(Boticano v. Chu, 148 SCRA 541 [1987]). It is the Carlos? (2.5%)
duty of the court to look into the sufficiency of the
service. The sheriffs negligence in not stating in his ALTERNATIVE ANSWER:
return that he first made a genuine effort to The summons was not validly served on Carlos
serve the summons on the defendant, should because it
not prejudice the plaintiff. (Mapa v. Court of
Appeals, 214 SCRA 417/1992). The purpose of the was served on his secretary and the requirements for
summons is to inform the defendant of the complaint substituted service have not been followed, such as a
filed against him and to enable the court to acquire showing that efforts have been exerted to serve the
jurisdiction over his person. It maybe served by the same on Carlos and such attempt has failed
sheriff or his deputy or any person authorized by the despite due diligence (Manotoc v. CA, G.R.
court.
No. 130974, August 16, 2006; AngPing v. CA,
ALTERNATIVE ANSWER: G.R. No.
Yes. The motion to dismiss is meritorious. 126947, July 15, 1999).
Substituted
ALTERNATIVE ANSWER:
service cannot be effected unless the sheriffs return
shows that he made a genuine attempt to effect
personal service on the husband.
Summons; Validity of Service; Effects (2006)
Tina Guerrero filed with filed the Regional Trial

Court of Binan, Laguna, a complaint for sum of
money amounting to P1 Million against Carlos
Corro. The complaint alleges, among others, that
Carlos borrowed from Tina the said amount as
evidenced by a promissory note signed by Carlos
and his wife, jointly and severally. Carlos was
served with summons which was received by
by: sirdondee@gmail.com Page 38 of 66
Remedial Law Bar Examination Q & A (1997-2006) 2. The motion to dismiss on the ground of lack of
Service of Summons on Carlos was validly served jurisdiction over the subject matter should be denied.
upon him if the Return will show that it was done The counterclaim for attorney's fees and expenses of
through Substituted Service because the defendant litigation is a compulsory counterclaim because it
can not be served personally within a reasonable necessarily arose out of and is connected with the
time despite diligent efforts made to serve the complaint. In an original action before the RTC, the
summons personally. Linda, the secretary of counterclaim may be considered compulsory
defendant Carlos, must likewise be shown to be a regardless of the amount. (Sec. 7 of Rule 6)
competent person in charge of defendant's office
where summons was served (Sec. 7, Rule 14).
Venue; Personal Actions (1997)
X, a resident of Angeles City, borrowed

P300,000.00 from A, a resident of Pasay City. In the
2. If you were the judge, will you grant loan agreement, the parties stipulated that "the
Tina's motion to declare Carlos in default? parties agree to sue and be sued in the City of
(2.5%) ALTERNATIVE ANSWER: Manila." a) In case of non- payment of the loan, can
A file
If I were the judge, I will not grant Tina's motion to
his complaint to collect the loan from X in
declare Carlos in default because summons was not
properly served and anyway, a verified answer to the Angeles City?
complaint had already been filed. Moreover, it is
better to decide a case on the merits rather than on b) Suppose the parties did not stipulate in the
technicality. loan agreement as to the venue, where can A file his
complaint against X?
ALTERNATIVE ANSWER:
c) Suppose the parties stipulated in their loan
Yes. If it was shown that summons was validly agreement that "venue for all suits arising from this
served, contract shall be the courts in Quezon City," can A
file his complaint against X in Pasay City?
and that the motion to declare Carlos in default was
duly furnished on Carlos, and after conducting a SUGGESTED ANSWER:
hearing on the same motion.
(a) Yes, because the stipulation in the loan
agreement
Venue; Improper Venue; Compulsory that "the parties agree to sue and be sued in the City
Counterclaim (1998) of Manila" does not make Manila the "exclusive
venue thereof." (Sec, 4 of Rule 4, as amended by
Circular No. 13
A, a resident of Lingayen, Pangasinan sued X, a 95: Sec. 4 of new Rule 4) Hence, A can file his
resident of San Fernando La Union in the RTC complaint in
(RTC) of Quezon City for the collection of a debt of
P1 million. X did not file a motion to dismiss for Angeles City where he resides, (Sec, 2 of Rule 4).
improper venue but filed his answer raising therein
improper venue as an affirmative defense. He also
filed a counterclaim for P80,000 against A for
attorney's fees and expenses for litigation. X moved (b) If the parties did not stipulate on the venue, A
for a preliminary hearing on said affirmative can file his complaint either in Angeles City where
defense. For his part, A filed a motion to dismiss the he resides or in Pasay City where X resides, (Id).
counterclaim for lack of jurisdiction.
1 Rule on the affirmative defense of improper
venue. Conglomeration, Inc. v. CA. CR-119657,
(c) Yes, because the wording of the stipulation does Feb. 7, 1997)
not make Quezon City the exclusive venue.
[3%]
(Philbanking v. Tensuan. 230 SCRA 413;
Unimasters 2 Rule on the motion to dismiss the
counterclaim on the ground of lack of jurisdiction
over the subject matter. [2%]
SUGGESTED ANSWER:
1. There is improper venue. The case for a sum of
money, which was filed in Quezon City, is a

personal action. It must be filed in the residence of
either the plaintiff, which is in Pangasinan, or of the
defendant, which is in San Fernando, La Union.
(Sec. 2 of Rule 4) The fact that it was not raised in a
motion to dismiss does not matter because the rule
that if improper venue is not raised in a motion to
dismiss it is deemed waived was removed from the
1997 Rules of Civil Procedure. The new Rules
provide that if no motion to dismiss has been filed,
any of the grounds for dismissal may be pleaded as
an affirmative defense in the answer. (Sec. 6 of Rule
16.)
ALTERNATIVE ANSWER:
(c) No. If the parties stipulated that the venue "shall

be
in the courts in Quezon City", A cannot file his

complaint in Pasay City because the use of the word
"shall" makes Quezon City the exclusive venue
thereof. (Hoechst Philippines vs. Torres, 83 SCRA
297).

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I.

A. Concept of remedial law

Q: How are remedial laws implemented in our system of government? 2% (2006

B. Substantive law vis-á-vis remedial law

Q: Distinguish between substantive law and remedial, law. 2% (2006 Bar

Q: What is meant by “hierarchy of courts”? (1996 Bar Question) SUGGESTED ANSWER:

2. Doctrine of non-interference or doctrine of judicial stability

What is the doctrine of judicial stability or non interference? (2011 BAR)

B. The essential requisites of res judicata are:

1. the judgment or order rendered must be final;

A. Over the parties

1. How jurisdiction over the plaintiff is acquired

1) the plaintiff in a special civil action for mandamus? SUGGESTED ANSWER:

2. How jurisdiction over the defendant is acquired

B. Over the subject matter

1. Error of jurisdiction as distinguished from error of judgment

Q: Distinguish between error of judgment and error of jurisdiction. (1989 Bar

2. How jurisdiction is conferred and determined

3. Objections to jurisdiction over the subject matter

Another Acceptable Answer:

4. Effect of estoppel on objections to jurisdiction

a) Rule on the issue. Answer:

If it cannot be issued, what is the remedy of A? Answer:

C. Over the issues

Q: In complex crimes, how is the jurisdiction of a court determined? (2003 Bar

D. Over the res or property in litigation

A decision or resolution of a division of the Supreme Court when concurred in by members

Q: Compare the certiorari jurisdiction of the Supreme Court under the

Q: The Ombudsman, after conducting the requisite preliminary investigation, found

Is the Motion to Quash legally tenable? (2014)

4. Regional Trial Courts

Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the

a) The Housing and Land Use Regulatory Board

ANOTHER SUGGESTED ANSWER:

Q: (2002 Bar Question)

Q: (2001 Bar Question)

6. Metropolitan Trial Courts/Municipal Trial Courts

1. Is X's defense tenable? [3%]

Was the denial of the Motion to Dismiss the Complaint correct?

Resolve the Motion to Declare the Defendant in Default. (2003 Bar

Q: A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth

Q: (2000 Bar Question)

Resolve the motion. (2%)

A. Is prior referral to the Lupon under P.D. No. 1508 necessary?

Another Acceptable Answer:

The Rule on Small Claims is applicable to: (2012 BAR)

A Small Claims Court . (2013 BAR)

B. May Carissa present evidence of title? Explain. Answer:

Q: (1988 Bar Question)

B. It is applicable in the following criminal cases:

Q: Lender extended to Borrower a Pl00,000.00 loan covered by a promissory note. Later,

III. Civil Procedure

1. Meaning of ordinary civil actions

2. Meaning of special civil actions

Q: (1999 Bar Question)

3. Civil actions versus special proceedings

5. Local and transitory actions

6. Actions in rem, in personam and quasi in rem

Q: Distinguish: (1004 Bar Question)

1. an action in rem from an action quasi in rem

1. Meaning of cause of action

Q: (1999 Bar Question)

Q: (1996 Bar Question)