Transcribed Notes by: Glaicee Joy T. Paner
2018 - 2019 1
DVOREF College of Law
1997 RULES OF CIVIL PROCEDURE, AS AMENDED
JURISDICTION AND VENUE
JURISDICTION – In civil cases, it is the authority in deciding cases. It is conferred by law
at the time of the filing of the complaint and it is based on the allegations in the complaint.
It is conferred by the B.P. Blg. 129, the Judiciary Reorganization Act, as amended by R.A.
7691, the Expanded Jurisdiction Law.
 In real actions, the jurisdiction of the 2nd and 1st level courts depends on the
assessed value of the property. To be in the jurisdiction of RTC, the assessed value
of the property must exceed 20,000, except in Metro Manila – 50,000. Otherwise,
it will be in the 1st level courts.This involves title to or possession of the property.
 It is important that you must allege in the complaint the assessed value. Failure to
allege the assessed value will allow the court to dismiss the complaint on the
ground of lack of jurisdiction. Allege the assessed value and attach therewith the
latest tax declaration.
 For personal actions within the jurisdiction of the RTC, the assessed value of the
claim must exceed 300,000, except in Metro Manila wherein the value is exceeding
400,000.
 The computation of the value is exclusive of damages, interests, and costs of
whatever kind. Except when the main cause of action is damages, you are allowed
to include the computation of damages, interests and costs as provided in R.A.
7691.
 If the case is within the jurisdiction of the 1st level court, you also have to consider
whether the case is covered by the Rules on Summary Procedure or the Small
Claims Rule.
Q: What cases within the jurisdiction of 1st level courts are tried pursuant to the Rules on
Summary Procedure?
A: 1) Forcible entry and unlawful detainer irrespective of the assessed value.
2) For personal actions, if it does not exceed 100K.
 Small Claims Rule covers cases where the claim does not exceed 200K. if the case
is not covered by Small Claims Rule and the claim does not exceed 100K exclusive
of interest, damages and cost, it is within the jurisdiction of the 1 st level courts but
governed by the Rules on Summary Procedure.
VENUE – is the place where the case is supposed to be filed. It can be subject of the
agreement of the parties. Venue is only procedural while jurisdiction is substantial.
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GR: Jurisdiction can be raised at any stage of the proceedings even on appeal.
Exception: In the case of Tijam vs Sibonghanoy, where the Supreme Court applied the
principle of estoppel and laches. In this case, the appellant questioned the jurisdiction of
the court only when it reached the Supreme Court. SC ruled that the appellant is already
estopped from question the jurisdiction because he had already participated in every stage
of the proceedings.
 The manner in determining whether the court has jurisdiction is based on the
allegations of the complaint and not on the answer of the defendant. So if the
defendant files a motion to dismiss on the ground of lack of jurisdiction, the court
will look at the allegations of the complaint to determine whether it has jurisdiction
over the case.
REQUISITES FOR THE EXERCISE OF JURISDICTION:
1) Jurisdiction over the subject matter
 This is conferred by law: BP 129, RA 7691 and S.C. Circular 12-8-8, the Judicial
Affidavit Rule.
2) Jurisdiction over the person of the defendant
 There are two ways: 1) by service of summons
2) voluntary appearance in court / voluntary submission
Q: If the defendant files a motion to dismiss instead of an answer, will it be tantamount to
voluntary appearance in court or submission of himself to the court?
A: IT DEPENDS. If the motion to dismiss is only anchored on the fact that the court has no
jurisdiction over the person, it is not tantamount to voluntary submission. If it alleges other
grounds, it is tantamount to voluntary submission.
3) Jurisdiction over the person of the plaintiff
 This is acquired by filing the initiatory pleading.
4) Jurisdiction over the issues of the case
 This is determined from the pleadings submitted to the court by the parties.
5) Jurisdiction over the res or the thing subject matter of the case
 This is acquired by the constructive seizure of the property subject matter of the
case
GR: If one of the requisites is not present, the court will not acquire jurisdiction over a civil
case.
Exception: In cases which are in rem (real actions) or in cases involving personal status of
the plaintiff, the court may still proceed as long as it acquires jurisdiction over the res even
if, for example, there is no jurisdiction over the person of the parties.
Q: For example, the defendant is a resident of the US. You do not know the address of the
person and you want to file for declaration of nullity. What should you do?
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
A: File a motion for service of summons by means of publication. The purpose is to comply
with the due process requirement and not to acquire jurisdiction over the person.
JURISDICTION OF COURTS
( N O T E : Refer to the complete list of jurisdiction of courts. Included here are only the
summarized and important points. )
1st LEVEL COURTS
Q: Can there be a delegated jurisdiction of the 1st level courts?
A: YES. Cadastral and land registration cases assigned by the SC where there is no
controversy or opposition or in contested lots valued at more than 100K.
Q: What about special jurisdiction of 1st level courts?
A: YES. Petitions for habeas corpus but only in the absence of all RTC judges within that
region and applications for bail in the absence of all RTC judges.
Q: What are the cases that must first be filed for conciliation before the Lupon? Otherwise,
failure to go through the Lupon will warrant the dismissal of the case on the ground of
failure to comply with the condition precedent.
A: If the parties are residents of the same place or barangay. If the parties reside in
different barangays but the same city, it depends if it is a real action or a personal action. If
it is a real action, it should be where the property is located or where a portion or part
thereof is situated. If it is a personal action, file it at the place where the plaintiff or
defendant resides but at the election of the plaintiff.
 Also included here is the inclusion and exclusion of voters during election.
 Provisional remedies (i.e. attachment, injunction, appointment of a receiver;
delivery of personal property) where the claim does not exceed 300,000 and
500,000 in Metro Manila
Exceptions to the Lupon requirement: In civil cases, even if the parties reside in the
same place, the filing before the Lupon may be dispensed with if the complaint is coupled
with a prayer for a provisional remedy. The exceptions to the Lupon requirement are more
on the criminal cases like where there is no private offended party, one is a public officer
sued in the performance of his official functions, or one is already a detention prisoner.
RTC JURISDICTION
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 In real actions – Actions involving title to, interest, or possession of a property
with an assessed value exceeding 20,000, except in Metro Manila where the value
exceeds 50,000.
 All other personal actions where the amount exceeds 300,000 except in Metro
Manila where amount exceeds 400,000.
 Cases incapable of pecuniary estimation – a perfect example if breach of contract.
Examples of actions involving title to or possession of a property:
1) recovery of ownership
2) quieting of title
3) annulment of deed of sale
4) reconveyance
RTCs are now designated as “commercial courts” which now include cases which used
to be under the SEC’s jurisdiction.
SUPREME COURT
 In cases under the appellate jurisdiction of SC, there are three ways to
elevate the case:
1) by ordinary appeal – you only file a notice of appeal
2) by petition for review on certiorari under Rule 45
3) by special civil action of certiorari under Rule 65
 Where the penalty imposed is reclusion perpetua or death, the rule is that you go
first to CA via ordinary appeal within 15 days after judgment. If you are not yet
content with CA decision, you may go to SC not by petition for review on certiorari
under Rule 45, but by ordinary appeal only.
TAKE NOTE: Remember that there is only one instance where you go to SC from a
decision of CA by ordinary appeal – cases involving reclusion perpetua or life imprisonment.
It is only a notice of appeal that is filed. There is no more automatic appeal because
automatic appeal is only for death penalty, which is already not imposed now.
 You go to SC from CA via petition for review under Rule 45 under the following
cases:
1) Appeals from CA (except those with penalty of reclusion perpetua or life
imprisonment)
2) Appeals from Sandiganbayan on pure questions of law (same exception with
number 1)
3) Appeals from judgments or final orders of RTC exercising original jurisdiction in
the following cases:
a. All cases in which constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation (go directly to SC by petition for review on certiorari, not
CA)
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
b. All cases involving the legality of any tax imposed, assessment or toll, any
penalty imposed in relation thereto (decisions and final resolutions of CTA – CTA is
the same level as CA)
c. All cases in which the jurisdiction of any lower court is in issue
d. All cases in which only an error or question of law is involved (can be done
directly to SC even if from RTC)
 You can also go to SC not by petition for review on certiorari but by special civil
action of certiorari under Rule 65 of 1997 Rules of Civil Procedure.
- This should be done within 30 days from receipt of the decision or if there is a
motion for reconsideration because it follows the fresh period rule in the
following cases:
a. Judgments, final orders, resolutions sought to be reviewed against:
1. COMELEC
2. Commission on Audit
COURT OF APPEALS
 Exclusive original jurisdiction:
1. Annulment of judgments of RTC
2. Petition for certiorari, prohibition, and mandamus involving the act or omission
of a quasi-judicial agency unless otherwise provided by law
 In cases under appellate jurisdiction, these are the following ways to appeal
the case:
1) by ordinary appeal
2) by special civil action of certiorari under Rule 65
3) automatic review
4) petition for review either under Rule 42 or Rule 43
 By ordinary review:
- In appeals from RTC – except those which are directly appealable to SC via
Rule 45 where the RTC exercise the same in its exclusive original jurisdiction.
- Direct appeal from land registration and cadastral cases decided by the 1 st
level court in its delegated jurisdiction.
 You go to CA via two choices: petition for review under Rule 42 or Rule 43. Rule
42 covers decisions from RTC in the exercise of its appellate jurisdiction. Decisions
of quasi-judicial agencies are covered by Rule 43.
SANDIGANBAYAN
 Violations of the Anti-Graft and Corrupt Practices Act (RA 3019) – should be Salary
grade 27 and above
 Salary grade 26 and below is under the jurisdiction of either the RTC or 1st level
courts depending on the imposable penalty:
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- If it is 6 years and 1 day and above – RTC;
- If 6 years and 1 day below – 1st level court.
Q: What if there are five people sued because they conspired to commit a violation of RA
3019? One has a Salary Grade 28 while the others have Salary Grades 22, 23, 24 & 25.
Where should the case be filed?
A: The case should be filed in the Sandiganbayan as long as one of them has a salary grade
of 27 & above. All the others will also be included to be filed with the Sandiganbayan
because of the existence of conspiracy.
 In case the RTC has decided the case, it will be appealed to the Sandiganbayan
and not to CA. The Information itself is filed by the Office of Ombudsman in the
RTC which will let you know that it is a violation of RA 3019. And in case of
conviction, appeal it to Sandiganbayan via an ordinary appeal.
 Violations of RA 9160 Anti-Money Laundering Act of 2001 if committed by public
officers or private persons in conspiracy with public officers
 In appellate jurisdiction - Decisions and final orders of RTC in the exercise of
their original or appellate jurisdiction under PD No. 1606 as amended (offenses
committed by public officers in relation to the performance of their functions but
salary grade is not 27)
FAMILY COURTS
 Cases involving minors irrespective of the penalty – the minor is either one of the
parties (may be the accused or the victim)
 This is an exception to the rule that where the penalty imposable is not exceeding
6 years, it goes to the 1st level court.
RULE 1 – GENERAL PROVISIONS
RULE 2 – CAUSE OF ACTION
RULE 3 – PARTIES
 In Rule 1, the most important point is the commencement of a civil action. The
Rules of Court shall be liberally applied or construed. However, there are some
provisions that should be strictly construed such as reglementary period for appeal
because it will be against public policy (CA vs Mago).
 A civil action is commenced by the filing of the complaint or any initiatory pleading.
However, if an additional defendant is impleaded, the civil action is commenced at
the time of the filing of the later pleading irrespective whether the motion for
admission, if necessary, is denied. As far as the impleaded additional defendant is
concerned, the complaint is only commenced upon him at the time of its admission
by the court.
 Every complaint must always state the cause of action. In failure to state a cause
of action in the complaint, the defendant can file a motion to dismiss or file an
answer and raise that ground as an affirmative decision. If the ground for a motion
to dismiss is lack of cause of action, there is no need for a hearing because in
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
determining whether there is lack of cause of action, the court is only limited in the
allegations of the complaint. This is one kind of a motion to dismiss which does not
need a hearing since a motion to dismiss is a litigated motion.
REQUISITES FOR A VALID CAUSE OF ACTION:
1) that the plaintiff has a right;
2) the obligation of the defendant in relation to the right of the plaintiff;
3) the act or omission committed by the defendant in violation of the plaintiff’s right
 Joinder of causes of action – Your complaint may involve as many causes
of action. This is allowed provided the following elements are present:
1) It must comply with the rules on joinder of parties
2) The right to relief of the party must arise out of the same transaction or
series of transaction which gave rise to the cause of action.
3) In relation to the first rule, there must be common questions of law and
fact.
4) It must not be proscribed or prohibited by the rules on venue and
prescription.
5) It must not involve a special civil action.
6) If the action involves the same parties but some causes of action fall in the
jurisdiction of different venues and some are in the jurisdiction of RTC, it
should be filed in the RTC.
 TOTALITY RULE – When the action is for recovery or collection of sum of
money, the aggregate amount of the claims should determine the jurisdiction
of the court as long as all the claims are due and demandable.
 Misjoinder of causes of action – If a cause of action is misjoined, the
court may, upon motion or motu proprio, the same may be severed or
treated separately from the other causes of action. This is not a ground for a
motion to dismiss.
Q: What should a complaint contain?
A: It must contain the ultimate facts, relief, prayer, verification, certificate of non-forum
shopping, signature of the parties and the counsel, MCLE number, IBP number, Roll
number.
 Before, in Bar Matter 1922, if there is no MCLE number, the court is allowed to
dismiss the case. However, the rule now is that the court should not dismiss the
case anymore but the lawyer shall be subjected to administrative sanctions.
Q: You filed an action for recovery of ownership against Juan dela Cruz and at the same
time you also filed a recovery of the fruits. Is it allowed? Are you allowed to split a cause of
action?
A: NO. You are not allowed to file two cases arising out of the same transaction to avoid
multiplicity of suits. If you see that there is a splitting of cause of action, your motion to
dismiss is based on the ground of either res judicata or litis pendentia.
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 If the 1st case is still pending upon the filing of the 2nd case, your motion to dismiss
will be on the ground of litis pendentia. If the 1st case in which the 2nd case was
filed has already attained finality, your ground will be res judicata.
 In the book of Regalado, there was one case where it involved installments due.
Each installment will constitute one cause of action. There is no splitting here. But
if at the time you filed for one installment and there were already five more
installments which already became due and demandable, you should include the
five due installments together with the current installment; otherwise you will split
your cause of action.
 Another example is, if a loan is secured by a real estate mortgage. You can only
choose if you will collect or foreclose. You cannot file collection of sum of money
and another for foreclosure of real estate mortgage because this will be splitting of
cause of action. Furthermore, it is provided by law that these two are only
alternative remedies.
PARTIES TO THE CASE
 WHO MAY FILE AN ACTION?
1) natural person
2) juridical person
 When you file a civil case, you file it in the name of the real party in interest –
he is the one who stands to be benefitted or injured as a consequence of the filing
of the case. Failure to file the case in the name of the real party in interest will
allow you to file a motion to dismiss on the ground of lack of cause of action.
DIFFERENT KINDS OF PARTIES:
1) Real party in interest – one who stands to be injured or benefitted by the
consequence of the filing of the complaint and by the judgment rendered by court
2) Indispensable – No judgment or final determination of the case can be rendered
if they are not included in the complaint.
3) Necessary – If you want complete relief, they are not indispensable but you want
complete relief for the case, they should be included. There can be judgment here
but there can be no complete relief insofar as the case is concerned.
4) Representative – He is one who represents another, usually armed with a
Special Power of Attorney. The caption should be worded by “Juan dela Cruz
represented by Peter”. See to it that you mention the name of principal and then
sign it as a representative to escape personal liability.
-If in the representative capacity, you should put the name of the principal
“represented by the agent.” Otherwise, failure to do so will make it your personal
capacity and will hold you liable.
5) Pro-forma parties – Those required by law to be included, either plaintiff or
defendant. Example is if the parties are married and the real property involved in
the case is part of the absolute community of property, the spouses should always
be joined.
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
TAKE NOTE: Non- joinder and misjoinder of parties are not grounds for a motion to
dismiss. A party can always be added or excluded at any stage of the proceedings by the
court motu propio or upon motion by the parties.
 Class suit – a suit in which parties are so numerous that it will be impractical for
the court to require all of them to show up. A group of people may be allowed to
represent all the parties. An example is a taxpayer’s suit.
 PERMISSIVE JOINDER OF PARTIES – This does not apply to indispensable
parties because they must be included in the complaint. This is allowed provided
that the following elements are present:
1. That the case must arise out of the same transaction or series of transactions
2. There must be common questions of fact and law among them.
3. There is no prohibition on the application of the rules on venue and jurisdiction
(should not be proscribed or prohibited by the rules on venue and jurisdiction).
Q: You want to file a case along with your brothers but some of them don’t want to file.
They are called unwilling parties. What should you do?
A: You may include them as defendants in the case.
Q: While the case is on trial, one of the parties dies. What will you do?
A: If the action survives, as a counsel, you should notify the court of the death of the party
within 30 days. In the notice of death, you should also include the names and addresses of
the heirs. Failure to do so will subject the lawyer to administrative liabilities.
Q: After receipt of the notice of death, the court issues summons to the heirs. Is the court
correct?
A: NO. The court is grossly incorrect. What the court should do is to notify and ask the heirs
whether they are willing to substitute for the deceased plaintiff or defendant. Amendment
of the complaint is no longer needed. What is needed only is the notice of death to the
court and a list of the heirs so that the court can inquire if they want to substitute the
deceased party.
Q: There are 15 heirs. The court notified them of the death of the plaintiff or defendant and
asked them if they are willing to substitute the deceased party. Under this circumstance,
what should be done?
A: The interested party may file a petition for the appointment of an administrator or
administratrix of the properties of the dead party.
ACTIONS THAT SURVIVE EVEN AFTER DEATH OF THE PARTY:
1. Actions to recover real and personal property against the estate
2. Actions to enforce liens thereon
3. Actions for recovery of damages arising out of quasi-delict
Q: Here is a client who wants to file a case but he has no money to pay the filing fees.
What should be done?
A: File a motion to allow the party to file as indigent/pauper litigant. You also attach a
certification from the DSWD and the assessor’s office that he does not own any real
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property. Do not tell him to immediately go to the PAO. If he is represented by the PAO, it
is automatically free except summons fee for the Sheriff. If you feel that the case is
winning, you can have an agreement with the client on a contingent basis. For example,
you can agree to have 40% from the decision that is favourable to the client.
Q: If the party dies after there is already final judgment, what will happen?
A: The case will NOT be dismissed. The court may allow it to proceed and the
corresponding executions shall follow.
Q: In pending cases of public officials sued in connection with the performance of their
official function, for example where the Regional Director or the representative gets
reassigned to another region, or gets dismissed or retires from service, does it follow that
the incumbent Regional Director must take the place of the previous Regional Director in his
stead? What will happen to the case?
A: The rule is that the case may be continued and they will be substituted by the new
incumbent but there should be a substantial reason why it should be proceeded with and
this can be done within 30 days.
VENUE OF ACTIONS
 WHERE TO FILE A CIVIL CASE? It depends if it is a personal action, a real
action, or an action against a non-resident in the Philippines.
 In cases involving real properties – File a case in the place where the real
property or any portion thereof is located.
 In personal action – May be filed at either the residence of the plaintiff or
plaintiffs, defendant or defendants, at the election of the plaintiff.
 In actions involving non-resident defendants:
- It depends if it is a real action or one which it involves the personal status of
the plaintiff. For real action, file it where the property is located. If it involves
personal status, file it where the plaintiff resides.
TAKE NOTE: In real actions, no matter what the caption of the complaint is, as long as you
noticed that the prayer is for recovery of ownership, it is a case which involves title to or
possession of a property, the jurisdiction is dependent on the assessed value. In so far as
where to file the civil case, file it in the place where the property or any portion thereof is
located.
 Residence means the place where you are actually residing at the time of the
filing of the complaint. This is not synonymous with domicile.
RULE 5
UNIFORM PROCEDURE IN TRIAL COURTS
ALSO READ: S.C. Circular no. 12-08-08 Judicial Affidavit Rule. In civil cases, the
submission of the judicial affidavit of witnesses is already mandatory. In criminal cases, this
is not mandatory in RTC but mandatory in first level courts.
Transcribed Notes by: Glaicee Joy T. Paner Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 6
DVOREF College of Law

(b) For damages arising from any of the following:

 The procedure in RTC and first level courts is uniform except in cases covered by 1. Fault or negligence;
the Rules on Summary Procedure. 2. Quasi-contract; or
3. Contract;
CASES COVERED BY THE RULES ON SUMMARY PROCEDURE: (c) The enforcement of a barangay amicable settlement or an arbitration award involving a
1) unlawful detainer and forcible entry cases money claim covered by this Rule pursuant to Sec. 417 of Republic Act 7160, otherwise
2) personal actions involving collection of sum of money which the value does not exceed known as the Local Government Code of 1991.
100,000 pesos (except probate proceedings).
 If it exceeds 100,000 pesos but does not exceed 300,000 pesos, it will be with the RULE 6 – KINDS OF PLEADING
first level courts. RULE 7 – PARTS OF A PLEADING
RULE 8 – MANNER OF MAKING ALLEGATIONS IN A PLEADING
ESSENTIAL FEAUTURES OF THE RULES ON SUMMARY PROCEDURE: RULE 9 – EFFECT OF FAILURE TO PLEAD
1) A motion to dismiss is prohibited. RULE 10 – WHEN TO FILE RESPONSIVE PLEADINGS
Exception: If it is based on 1) lack of jurisdiction over the subject matter; 2) or failure to
comply with a condition precedent  Pleadings – are the written statements or allegations from which the causes of
2) The defendant should answer within 10 days, non-extendible period. Failure of defendant action or defenses from which the claim is based on.
to file any responsive pleading will allow the court motu proprio or upon motion of the  A motion to dismiss is not a pleading.
plaintiff, to render judgment.
3) Motion to declare defendant in default is also a prohibited pleading. KINDS OF PLEADINGS:
4) When the issues are already joined, there should be a preliminary conference. In the 1) Complaint - It is a pleading which contains cause/s of action of the plaintiff. It must
regular rules, it is pre-trial. contain the caption, the title, body, certification of non-forum shopping, and verification.
Although verification is not required in some cases, it is advisable to verify all your
 After the preliminary conference, there is no need to conduct a full-blown hearing. pleadings. There must also be MCLE number, Roll number, IBP number.
The court may just order the parties to submit their respective position papers Q: How do you verify based on the rules?
including affidavits of the witnesses. It is only when the court needs to ask A: It must be stated for example, that “I am the plaintiff. I have caused the filing of the
clarificatory questions regarding the affidavits that a hearing may be called for. complaint and that I understand the contents herein and that the allegations contained
 Once the case originally covered by the Rules on Summary Procedure is appealed herein are true and correct based on my own personal knowledge and authentic records.”
to the RTC, it will be governed already by the regular rules. If it is appealed and  Certification of non-forum shopping – This is to inform the court that there is
the RTC affirmed the decision of the 1st level court, you can now file a motion for no other pending case which involves the same cause of action filed in the same
reconsideration. court or in any other court. It must also state that should there be knowledge of a
 Judgment should be rendered within 30 days. pending action involving same cause of action, the court will be informed within 5
Q: Where lies the difference between the Rules on Summary Procedure and the Small days from knowledge thereof.
Claims Rule? And what are the cases covered?  “Involving the same cause of action” means that the case in relation to
A: One of the features of the Small Claims Rules is that a lawyer may not be allowed to another pending case which is filed might give rise to res judicata or litis
appear. The claim covered here must not exceed 300,000pesos. pendentia.
2) Answer - This must be filed within 15 days from receipt of the summon. The 15-day
SMALL CLAIMS CASES: period is extendible.
These claims or demands may be: Q: In spite receipt of the summons, the defendant did not file any answer nor did he file a
(a) For money owed under any of the following: motion for extension of time to file an answer. The court motu proprio declared defendant
1. Contract of Lease; in default. Is the court correct?
2. Contract of Loan; A: NO. Unlike in motion to render judgment where the court can declare it motu proprio,
3. Contract of Services; there must be a motion filed by the party to declare the defendant in default. This is
4. Contract of Sale; or applicable in regular rules because it is a requirement that it must be upon motion of the
5. Contract of Mortgage;
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
party. This is liberally construed because cases must be heard on the merits and not on
mere technicalities.
DEFENSES IN AN ANSWER:
a) negative defense – You specifically deny the allegations in the complaint. Denial alone
is not sufficient. You must also state the reason or ground why you are specifically denying
the same.
 Negative pregnant rule – This is when you merely reiterate or repeat the
allegations in the complaint and this is equivalent to an admission of the
allegations.
 NOT DEEMED ADMITTED EVEN IF THE ANSWER DID NOT COMPLY WITH
THE RULES:
1) Amount of unliquidated damages
2) Non-material allegations in the pleading
3) Conclusions in a pleading
Q: What is the most common denial if you run out of any ground to deny paragraphs of the
allegations in the complaint?
A: Defendant has no knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations complained therein. These are already considered sufficient denial.
b) affirmative defense – You admit the allegations in the complaint but you raise any
ground to escape liability like estoppel, payment or performance of the obligation, or
illegality of contract.
 Once in your answer you raised special and affirmative defenses, what you can do
is file a motion to the court for the court to hear first your special and affirmative
defenses because in so doing, it is as if you have filed a timely motion to dismiss.
3) Counterclaim - Another pleading which will arise out of an answer of the defendant
against the plaintiff. This is a claim by the defendant against the plaintiff.
a) Compulsory counterclaim- It arises out of the same transaction or occurrence which
gave rise to the complaint, it does not require for its adjudication, the presence of 3 rd
parties. If not set up in the answer, it is barred forever. This is what we call recoupment.
It means you cannot file it in a separate action.
 For example: “Because of the filing of the complaint, we suffered sleepless nights,
wounded feelings, serious anxieties, and mental anguish, which will entitle us to
moral damages of 200K each. And to serve as an example for public good, we are
likewise entitled to exemplary damages in the amount of 200K. That because of
the filing of this case, we were compelled to secure the services of a lawyer and
pay the amount of 100K by way of attorney’s fees.”
b) Permissive counterclaim- It is one which does not necessarily arise out of the same
transaction or occurrence which gave rise to the complaint. It requires the presence of 3 rd
persons for adjudication and even if not raised in the answer, it is not barred. It is called
set-off. This should be answered within 10 days.
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4) Cross-claim - This is a claim by a party against a co-party. This should be answered
within 10 days.
5) Third-party, 4th party, 5th party, etc. complaint - If you want to include a person
not a party to the case to be included, because you feel that he should be included in the
complaint, you file this. This is always with leave of court. This is at the intitiative of a
person who is already a party to the case. if the person is not yet a party to the case and
he wants to join, that is when he files a motion for intervention.
6) Reply - It is made by plaintiff to the answer of the defendant. It is not mandatory
because according to the rules, even if there is no reply, the issues of the case are already
joined upon the filing of the answer.
INSTANCES WHERE REPLY IS MANDATORY:
a) Where the answer raises the defense of usury- in which case a reply under oath
should be filed otherwise; if no reply, it will be an equivalent to an admission.
b) Where the answer involves an actionable document- there must be a reply under
oath; if no reply is made, effect is in so far the document is concerned, it will be an
admission as to the genuineness and due execution of that actionable document.
 Exceptions:
1) When the person questioning is not a party to the document
2) When an order or inspection of the document was issued by the court but it
was refused by the party concerned
__________________________________________________________________________
MANNER OF MAKING ALLEGATIONS IN THE PLEADING:
1) In preparing a complaint, it must contain plain, concise and direct statement of the
ultimate facts on which the party pleading relies for his claim or defense.
 Ultimate facts – If you are the plaintiff, the ultimate facts are the facts which
shall prove the cause of action. If you are the defendant, these are facts which
should prove your defense.
2) In annulment of contracts on the ground of fraud or mistake:
Q: Your complaint centers on annulment of contract on the ground of fraud. The contract
becomes voidable. Your action is to file an action for annulment of contract on the ground
of fraud. In raising your ultimate facts, what should you do?
A: You should specifically aver or state with particularity the grounds which gave rise to the
fraud.
 Actionable document – If your case involves actionable documents, a reply is
needed. An example of this is: promissory note and contracts
3) If pleading an actionable document, there are two ways.
 WAYS OF PLEADING AN ACTIONABLE DOCUMENT:
a) by setting forth the substance of such document in the pleading and attaching
the document thereto as an annex
b) by setting forth said document verbatim in the pleading
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
4) In pleading an official document or official act, it is sufficient to aver that the document
was issued or the act done in compliance with law.
5) In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-
judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision
without setting forth matter showing jurisdiction to render it.
6) If there is a condition precedent, there should be a statement that there is compliance of
such condition.
RULES IN RELATION TO THE ANSWER:
1) The answer must be filed within 15 days from service of summons. This period is
extendible. Exception is in cases covered by Rules on Summary Procedure which requires
an answer to be filed within 10 days.
 In cases involving private foreign juridical entities, the period is 30 days. The
summons is served upon the government official concerned.
 In cases involving non-resident defendants, it must be filed within 60 days from
the last publication. This is the so-called extra-territorial service by means of
publication.
2) If no answer is filed, you may file a motion to declare defendant in default. The court
cannot motu proprio declare defendant in default.
 The remedy of the defendant declared in default is to file a motion to set aside the
order of default before judgment. An indispensable requirement in filing a motion
to set aside the order of default is to include an affidavit of merit explaining why
you were not able to file your answer.
 If there is no motion to set aside order of default, presentation of evidence ex
parte by the plaintiff may be allowed by the court to be delegated to the clerk of
court.
3) The defendant declared in default is not allowed to participate in the subsequent
proceedings, he is still entitled to notices of all the proceedings.
4) If the defense is not raised in either the answer or motion to dismiss, it is deemed
waived.
Exceptions:
a) lack of jurisdiction over the subject matter
b) prescription of actions
c) res judicata
d) litis pendentia
5) Answer to a counter-claim is filed within 10 days. The same applies to cross-claim and
reply – also 10 days from the receipt of the answer.
RULE ON THE AWARD:
In rendering the decision, even if it is based after the defendant is declared in default, the
court is only limited to the relief prayed for in the complaint. It is likewise not allowed to
award unliquidated damages.
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RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
AMENDED COMPLAINT vs. SUPPLEMENTAL COMPLAINT:
1) In supplemental complaint, you only add or include some details such as occurrences
which happened after the filing of the complaint. In amended complaint, these only include
occurrences which happened before the filing of the complaint.
2) Supplemental complaint always requires leave of court. If this is granted, the defendant
is required to file an answer within 10 days from the approval or admission of the
supplemental complaint.
3) An amended complaint supersedes the original complaint. However, the admissions and
evidences already adduced against the party may still be used. In supplemental pleading,
the original complaint is still there, you only provide additional facts by supplement.
 A complaint may be amended once, as a matter of right, before a responsive
pleading is filed. After that, it will already require a leave of court.
 If you want to amend a complaint, you have to make appropriate marks.
Q: If an answer is already filed, can the plaintiff still amend the complaint?
A: YES. It must be with leave of court but only formal amendments. Substantial
amendments are not allowed.
Q: The court granted the amended complaint but an answer has been filed already by the
defendant prior to the grant of the amended complaint. Is there a need for the defendant
to file a new answer based on the amended complaint?
A: NO. The answer already filed will already suffice. But if you want to file answer, you may
still do so.
Q: Can the answer of a defendant be amended?
A: YES. This can be done before the case is calendared for hearing, or if this is a case
where reply is mandatory, you can amend it with leave of court, before the filing of a reply.
 If there are issues not agreed upon during the pre-trial conference tried as if the
parties consented to them, since there was no objection by the parties,
amendment of the pleading may be allowed to conform to the evidence. You file a
motion to amend the pleading to conform to the evidence presented.
RULE 12
BILL OF PARTICULARS
 Upon receipt of the summons, the defendant has three remedies:
1) File a motion to dismiss;
2) File an answer;
3) If the allegations in the complaint are ambiguous (not stated with particularity),
file a motion for bill of particulars.
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 This is important so that the defendant may be able to make intelligible answers to
the allegations against him.
 Upon receipt of the Bill of Particulars and if it is granted, the court will issue an
order to the plaintiff to correct or respond to the allegations subject of the motion
for bill of particulars.
 Compliance with the order may either be:
1) by filing an amended pleading; or
2) by filing a supplemental or separate pleading
 Failure to comply with the order of the court, the effect is that the allegations
subject of the motion for bill of particulars shall be stricken out. The court may
also dismiss the case for failure to comply with the orders of the court.
Q: The compliance is already done by way of filing an amended complaint. The defendant is
now required to file an answer. How many days are given to him?
A: He is given the remaining days but not less than 5 days. The Fresh Period Rule does not
apply here unlike in motion to dismiss or motion for reconsideration. (Note: A motion for
extension of time is a non-litigated motion.)
RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
This is divided into two:
1) Service of pleadings
2) Service of decisions or judgments
MODES OF SERVICE OF PLEADINGS:
1) Personal service - This is the priority mode. This is done by giving a copy to the party
or counsel.
2) By registered mail
 If this is resorted to, one indispensable requirement is that there should be an
explanation that personal service cannot be resorted to. This is based on Section
11 of Rule 13.
3) By substituted service - This is resorted to when personal service and service by mail
are not possible. This can be done by submitting the documents to the clerk of court with
an explanation why such service is being resorted to.
 If a party is represented by a counsel, pleadings shall be served upon him, except
when the party is not represented by a counsel, service upon the party is valid.
MODES OF SERVICE OF JUDGMENTS, DECISIONS, AND FINAL ORDERS:
1) By personal service
2) By registered mail
3) By publication – This is only allowed when summons was also issued by publication.
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 Notice of lis pendens – When the case involves title to or possession of a
property, the party may file a notice of lis pendens to the ROD to inform that there
is a pending case involving that property. The purpose of this is to prevent any
buyer of the property that he brought the same in good faith.
Q: Can this be done by just writing to the ROD that you want to remove the lis pendens?
A: NO. There must be approval of the court. You have to file a complaint before the court.
GROUNDS FOR REMOVAL OF NOTICE OF LIS PENDENS:
1) that it was only applied for to molest the other party; or
2) where the right of the applicant may be protected by other means other than lis pendens
RULE 14
SUMMONS
 Summons- This is one of the modes by which the court acquires jurisdiction over
the person of the defendant except when he voluntarily surrenders himself.
Q: If the summons failed to have the complaint attached, does it affect the validity of the
summons?
A: NO. The defendant can always go to the court and inquire and get a copy of the
complaint.
Q: The summons was served to the defendant not in accordance with the provisions of the
Rule 14. What will be the remedy of the defendant?
A: File a motion to dismiss on the ground of improper service of summons.
Q: The court granted the motion to dismiss because it was proven that the summons was
improperly served, and ultimately dismissed the case. Is the court correct?
A: The court is NOT correct. In cases of improper service of summons, the court should not
dismiss the complaint but issue an alias summons. This can also be resorted if the original
summons could not be served on the defendant, the plaintiff may file a motion to issue an
alias summons.
PERSONS WHO CAN SERVE SUMMONS: the sheriff, his deputy, other proper court
officer, or for justifiable reasons by any suitable person authorized by the court issuing the
summons
 If the summons is not issued by the persons enumerated by the Rules, the
summons is not properly served.
TO WHOM SHALL THE SUMMONS BE SERVED:
It depends on who will be the defendant. Generally, it is served on the defendant named
therein.
1) If the defendant is a minor, the summons shall be served upon him and his parents or
guardian.
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
2) If the defendants involve persons acting as a group or a juridical entity but not given the
appropriate juridical personality (juridical entities not legally organized), summons shall be
served upon any of the defendants except those who already ceased to be a member at the
time of the service of summons.
3) If a legally organized juridical entity, the summons shall be served on the following:
president, managing partner, general manager, corporate secretary, treasurer, or in-house
counsel.
4) In cases of foreign corporations, it depends whether such corporation has a resident
agent or representative. If there is one, summons shall be served on the resident agent,
otherwise it shall be served on the government official concerned corresponding to the
nature of the business of that foreign corporation. This may be answered within 30 days.
5) If it is the Republic of the Philippines, summons shall be served on the Solicitor General.
6) If the defendant is a local government unit, the summons shall be served on the Local
Chief Executive.
MODES OF SERVICE OF SUMMONS:
1) By personal service – This is done by personally giving a copy of the summons to the
defendant named therein. If there is refusal of the defendant to receive it, the Sheriff may
tender a copy by leaving a copy and making appropriate notations in the Sheriff’s report.
2) By substituted service – This may be made by leaving a copy of the summons
a) at the office of the defendant within the usual office hours; or
b) on the residence of the defendant before 7:00 in the evening;
c) by leaving a copy of the summons on a person who has sufficient age and discretion
within the residence of the defendant
Q: The Sheriff, on his first attempt, was not able to serve the summons, he resorted to
substituted service immediately. Is he correct?
A: NO. (See Yuk Ling Ong case).
3) By publication - This is allowed in any of the following instances:
a) The whereabouts or identity of the defendant is unknown;
b) Where the defendant is not a resident of the Philippines and the action is one that is an
action in rem or one affecting the personal status of the defendant. This is also called
extra-territorial service. There are two modes: 1) personal service (DFA to DFA); or 2)
summons by publication;
c) Where the defendant is residing in the Philippines but he is temporarily outside of the
country at the time of the service of summons
 In cases of service of summons by publication, the order of the court granting the
motion for service of summons must likewise be published and copy of the
complaint must be sent to the last known address of the defendant.
Q: What is the obligation of the Sheriff upon service of summons?
A: He must submit a return to the court within 5 days and also furnish a copy of the return
to the plaintiff. This is for the plaintiff to be able to know what to do next.
RULE 15
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MOTIONS
 Motion - It is an application for relief other than a pleading.
Q: Must a motion always be set for hearing?
A: NO, because there are non-litigated motions which do not require a hearing. Examples of
non-litigated motions include motion of extension of time to file answer and motion for
execution.
 If the motion is a litigated motion, so that it will not be considered as a mere scrap
of paper, it must comply with Sections 4, 5 & 6 of this Rule.
Q: If the motion stating, “Please submit the foregoing motion for the consideration of the
court immediately upon receipt hereof without further oral arguments” comply with the
three sections?
A: NO. It must state specifically the date when the motion should be set for hearing. You
must also give a notice of the hearing of the motion to the counsel of the other party in
order to comply with the Rules.
Q: For example, the motion was filed today, on July 10, 2018. The notice of hearing in the
motion says August 7, 2018 at 8:15 in the morning. Is this defective?
A: YES. The motion must be set for hearing not later than 10 days from the date of filing. If
it is filed on July 10, the hearing should be set on July 20, 2018.
GR: The copy of the notice must be sent to the adverse counsel at least 3 days before the
scheduled hearing.
Exception: Motion for summary judgment. The copy must be served to the adverse
counsel at least 10 days before the scheduled hearing.
 Omnibus motion - It is a motion attacking an order, judgment, or a decision of
the court. It should contain all the grounds for defenses because those not alleged
are deemed waived. If a motion contains more than one ground which should be
treated by the court, some counsels do it by filing an omnibus motion.
RULE 16
MOTION TO DISMISS
 A motion to dismiss should be filed within the 15-day period before the filing of a
responsive pleading.
GR: If an answer has already been filed, a motion to dismiss cannot be filed.
Exceptions (A motion to dismiss may still be filed on any of the following
grounds):
a) litis pendentia
b) lack of jurisdiction over the subject matter
c) prescription of action
d) res judicata
Q: The court granted the motion to dismiss. Can the case be re-filed?
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
A:As a GR, YES.
Exceptions (cannot be re-filed anymore):
a) if the obligation has been deemed waived, paid or extinguished
b) if the contract is unenforceable
c) litis pendentia
d) res judicata
GROUNDS FOR A MOTION TO DISMISS:
a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the same cause;
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is enforceable under the provisions of the
statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied with.
Q: How about if the complaint was not filed in the name of the real party in interest? What
will be the ground?
A: Lack of cause of action
Q: What about if it is based on non-exhaustion of administrative remedies?
A: Lack of cause of action
Q: What about if there is no prior conciliation before the Lupon?
A: Failure to comply with a condition precedent. Another example that may fall upon this
ground is a dispute between family members and there were no earnest efforts to
compromise.
 If the ground is lack of cause of action, the court need not conduct a hearing
because the court is only limited to the allegations in the complaint.
 An unenforceable contract is one that cannot be enforced by the courts because it
does not comply with the Statute of Frauds. This only refers to executory contracts
and not to partially-executed contracts.
DISCUSSION ON REPUBLIC vs MEGA PACIFIC SOLUTIONS INC:
 The Supreme Court here discussed that res judicata has two aspects:
1) bar by prior judgment – The decree or decision of the court on the merits of
the case when it is decided upon, shall constitute a bar to a new action with the
same issues and the same parties.
2) conclusiveness of judgment – There is a fact or question raised in the issue
in the previous suit and the court has decided upon it, relative to the parties and
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the privies to that contract. Such parties and persons in such contract cannot file a
case with the same cause of action or different cause of action before the same
court or a court of concurrent jurisdiction while the previous decision has not been
reversed by the proper authority.
RULE 17
DISMISSAL OF ACTIONS
 Dismissal can be effected:
1) by notice of dismissal
2) by filing a motion to dismiss
3) by other grounds for a motion to dismiss as enumerated under Sec. 3
NOTICE OF DISMISSAL:
 The plaintiff will not file a motion to dismiss. He will only file a notice of dismissal.
Upon receipt of the notice of dismissal, the court will issue an order confirming the
dismissal. This can be done or resorted to by the plaintiff even if the answer of the
defendant has already been filed in court.
 The reckoning point here is not the filing of the answer but the service of the
answer to the plaintiff or the service of motion for summary judgment.
 As a general rule, this can be re-filed.
Q: The court confirmed the dismissal. Can the plaintiff re-file it?
A: YES, except when it falls under the two-dismissal rule.
 Two dismissal rule – When the same party has previously or twice filed the
same notice of dismissal in a court of competent jurisdiction, he can no longer the
same complaint for the 3rd time.
MOTION TO DISMISS AT THE INSTANCE OF THE PLAINTIFF:
 Take note that this motion is filed by the plaintiff and NOT by the defendant. This
can be filed any time even during trial, however, if it is filed after the filing of an
answer of the defendant, the dismissal of the court is only limited to the complaint.
It will not include the counterclaim raised by the defendant in his answer.
 The defendant, in so far as his counterclaim is concerned, has two options:
1) File the counterclaim in a separate civil action; or
2) Within 15 days from receipt of the order of dismissal, he should inform the
court that he wants his counterclaim to be tried in the same civil case.
OTHER GROUNDS FOR DISMISSAL:
1) Failure of the plaintiff to prosecute his case for an unreasonable length of time
2) Failure to appear and present evidence
3) Failure to comply with lawful orders of the Court
 Issues of the civil case will be joined at the filing of the last pleading. Once they
are joined, the next step is pre-trial conference.
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
RULE 18
PRE-TRIAL
 Under the law on speedy trial, we have what we call preliminary conference.
This is conducted before the Branch Clerk of Court particularly if your evidence is
numerous. The court will first refer the case for preliminary conference for the
purpose of marking of exhibits, listing of witnesses, admission of facts,
genuineness and due execution of certain documents.
 Civil cases go first to mediation, if possible. Mediation is part of pre-trial. We also
have the judicial dispute resolution conducted in courts. If this is a single-sala
court, the JDR is conducted by the MTC judge. If it is a multi-sala court, JDR is
conducted by another judge because if the mediation fails, it will be raffled to
another judge. In JDR, the judge may already tell the parties the merits of the
case.
 Before the pre-trial conference, the court shall issue an order requiring the parties
to submit their pre-trial briefs at least 3 days before the scheduled pre-trial
conference. There is also a requirement that the parties must submit judicial
affidavit of the witnesses at least 5 days before the scheduled pre-trial conference.
 If the plaintiff does not appear during pre-trial, the case shall be dismissed on the
ground of non-suit. If the defendant does not appear, the defendant will not be
declared in default but the court may allow the plaintiff to present his evidence ex
parte.
 If the case is dismissed because the plaintiff was declared non-suited, he may
appeal the decision because dismissal is a final order. You can file a motion for
reconsideration but if it is also denied, you can file an appeal.
GR: This kind of dismissal during the conduct of pre-trial is with prejudice. It cannot be re-
filed.
Exception: If the order provides otherwise that the dismissal is without prejudice.
 The remedy of the defendant who failed to appear may file a motion for
reconsideration. Affidavit of merit is not required to be attached. He cannot file a
motion to lift the order of default because there is no default.
GR: Witnesses not listed and exhibits not marked during pre-trial will not be allowed for
presentation and testimony during the trial.
Exceptions:
1) For impeachment purposes
2) Those used for cross or recross examination
3) Those used for rebuttal or sur-rebuttal
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4) Those which were not available during the pre-trial in spite due diligence to
acquire them
 After the conduct of pre-trial conference, the court will issue a pre-trial order. The
importance of this is that it will control the trial of the case.
Q: Can a pre-trial order be amended? Because when a court issues a pre-trial order, what is
usually done is that there is a statement there “Informing the counsels that if they need
some corrections or amendments to the pre-trial order, they must inform the court the
same within 10 days from receipt of the pre-trial order.” Presuming, no amendment or
correction was made, while the trial is going on, can the order still be amended?
A: YES, in order to prevent manifest injustice, the court may still allow some minor
corrections or amendments even after the lapse of the period for amendment of the order.
RULE 19
INTERVENTION
Q: What is the difference between a 3rd party complaint and a complaint-in-intervention?
A: In a 3rd party complaint, the person who files the complaint is already a party. In
intervention, he is not yet a party to the case. This must always be with leave of court.
REQUISITES TO ALLOW A PERSON TO INTERVENE:
1) when he has a legal interest in the matters of the case
2) when he has an interest in the success of either of the parties or against both of them
3) when he is adversely affected of the disposition or distribution of the property
 If you want to unite with the plaintiff’s cause, file a motion for leave of court to file
a complaint-in-intervention. Attach already the pleading to the motion.
 If you want to unite with defense or claim of the defendant, file an answer-in-
intervention.
Q: If there is no answer to a complaint-in-intervention, can there be a default?
A: NO, because the answer of the defendant will already serve that purpose.
 One can file an intervention before the court renders judgment. But in the case of
Mago vs CA, the Court allowed an intervention even if the case was already on
appeal and this was anchored in the interest of substantial justice.
Q: What will happen if the complaint, upon which an intervention was filed, is dismissed by
the court? Will the intervention survive?
A: IT DEPENDS. If the intervention was filed BEFORE the original case was dismissed, it will
survive. Otherwise, it will not.
Transcribed Notes by: Glaicee Joy T. Paner Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 13
DVOREF College of Law

 The purposes in resorting to deposition are stated in Sec. 4 of Rule 23.

RULE 21
SUBPOENA
 Subpoena duces tecum – This is issued if you want a witness to bring to the
court books, documents or papers or other effects to be submitted to the court.
 Subpoena ad testificandum – This is issued if you want a person to testify in
court.
Q: Can the court issue a subpoena to a prisoner already convicted by final judgment and is
already serving his sentence in jail?
A: If the detention prisoner is sentenced to penalty of death, reclusion perpetua, or life
imprisonment, only the Supreme Court can issue a subpoena.
 Viatory right – This is a right of a person to not be compelled to appear in court
because he is residing more than 100km from the court or the place where he is
supposed to testify. This is not applicable in criminal cases. This can only be
availed of in civil cases.
QUASHING OF SUBPOENA:
 It depends if it is subpoena duces tecum or subpoena ad testificandum.
 If subpoena ad testificandum:
1) if the witness is not bound to testify;
2) when the corresponding fees and kilometrage are not paid by the one moving
for the issuance of the same
 If subpoena duces tecum:
1) when it is unreasonable or oppressive;
2) when the documents are not relevant to the case;
3) when the corresponding fees and kilometrage are not paid by the one moving
for the issuance of the same
MODES OF DISCOVERY
(RULES 23-29)
 There is an order issued by the court, informing the parties to notify the court
within 5 days from receipt of the order whether they are willing to avail of the
modes of discovery. If the parties fail to inform the court that they will avail of
modes of discovery, they will not be allowed anymore to avail of the same.
Q: If you want to avail of deposition under Rules 23, must there be leave of court?
A: IT DEPENDS. If the court has not yet acquired jurisdiction over the person of the
defendant or over the subject matter of the case, there must be leave of court. If the
answer has been served already, deposition does not need leave of court anymore.
Before whom depositions may be taken:
- It depends where the witness is.
 If taken in the Philippines, it can be taken:
1) before a judge who granted the taking of the deposition; or
2) before a notary public
3) before any other person authorized to administer oaths
 If taken outside of the country:
1) Before the secretary of an embassy or legation, consul general, consul, vice
consul, or consular agent of the Republic of the Philippines
2) Any other person appointed by commission by letters rogatory
3) Any person authorized to administer oaths by written stipulations of the parties
 Commission- This is the priority mode. It is an instrument issued by a court of
justice or other competent tribunal addressed to a proper authority such as a
magistrate or to an individual that is entitled to take the deposition of the
witnesses named therein.
 Letters rogatory- This only comes in if commission is not available. It is an
instrument which is sent in the name of the judge or the court but it is addressed
to some appropriate judicial authority in some foreign State. This is easier than a
commission because this is in reference to a judicial authority in a foreign State.
Disqualified persons from taking deposition:
1) a person who is a relative within the sixth degree of consanguinity or affinity, or
employee or counsel of any of the parties
2) a person who is a relative within the same degree, or employee of such counsel
3) any person who is financially interested in the action

DEPOSITIONS: Deposition by Oral Examination:

1) Deposition pending action (Rule 23)  This is just like presenting a witness and taking his testimony. There will also be
2) Deposition pending appeal (Rule 24) direct examination and cross-examination, redirect or re-cross examination but this
3) Deposition before appeal (Rule 24) is not in open court. This is only before the person who will take the deposition.
 There has to be notice to the counsel of the party so he can be given an
DEPOSITION PENDING ACTION (RULE 23) opportunity to conduct his cross examination.
 In terms of those which can be covered by the deposition of the witness, only
 If you want to avail of deposition pending action, you have two options which may those which are relevant to the pending action should be included.
be: deposition by oral examination or written interrogatories. The court  The matters which are supposed to be testified to by the deponent should not be
determines this. covered by the privilege communication
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
Deposition by means of Written Interrogatories:
 The written set of direct interrogatories is served to the counsel of the other party
and it is to be submitted within 10 days.
 The other counsel will also serve a copy of his written cross interrogatories within
10 days from receipt of the set of written interrogatories of the movant applicant.
 Re-cross interrogatories are also submitted within 3 days.
 All documents should be delivered to the person or officer to whom the deposition
should be taken. This is the difference between written interrogatories under Rule
25 wherein you only submit the interrogatories to the party.
Q: Can the person before whom the deposition is taken rule on certain objections of the
other party?
A: NO, he should just note it. The person whom before the deposition is taken has no
authority to rule on the objections interposed during the course of the taking of the
deposition. It should just be submitted to the court. Certain objections can only be ruled by
the judge.
DEPOSITIONS BEFORE ACTION AND DEPOSITIONS PENDING APPEAL (RULE 24)
Deposition before action:
 If your witness is already leaving for abroad with no intention of returning and you
want to file a case later, you may avail of this mode of discovery.
 In criminal cases, there are two kinds of depositions:
1) conditional examination of defense witnesses
2) conditional examination of prosecution witnesses
 File a petition in the place where the expected adverse party resides. The
procedure is the same in Rule 23.
Deposition pending appeal:
 A party may file a motion in the court where the case is filed or the court which
rendered the judgment.
WRITTEN INTERROGATORIES TO PARTIES (RULE 25)
 This is resorted to or may be availed of usually when you want to elicit material
and relevant facts of your case from the adverse party. You can ask this even
before pre-trial so you would know if your case is strong.
 The rule is the same in depositions pending action in Rule 23. If the answer was
already served, it does not need leave of court. If the court has not yet acquired
jurisdiction over the person of the defendant or the subject matter, there is a need
for leave of court.
 Unlike other modes of discovery, the interrogatories must be served to the party
himself and not to the counsel. If it is sent to the counsel, it is not valid.
Q: Can you file more than one set of interrogatories?
A: YES, but if two or more sets of interrogatories are to be filed, there must be leave of
court.
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 Upon receipt of the other party, it is the obligation of the adverse party to answer
the sets of written interrogatories within 15 days from receipt thereof. Failure to
answer by the adverse party will be declared in default and there can be judgment
by default.
Q: If there are several defendants and one of them did not receive the set or sets of written
interrogatories, what is the effect of this?
A: There are two legal effects:
1) You cannot compel the said defendant to become a witness for your cause.
2) You cannot give or take a deposition pending appeal.
RULE 26
ADMISSION BY ADVERSE PARTY
 This is done by making a request for admission and serving the same to the party
himself, not to the counsel. This is one of the exceptions to the rule that service to
the counsel is service to the party himself.
WHAT THE ADMISSION IS FOR:
1) to make the other party admit the genuineness of any material and relevant document
described in and exhibited with the request;
2) to admit the material and relevant facts involving matters which are set forth in the
request
 If you want the other party to admit certain material and relevant facts set forth in
your request, don’t include facts that were already admitted because it will be
redundancy.
 Upon receipt of the request for admission, the party shall either:
1) submit a sworn statement denying the request of the admission within 15 days
or if there are objections, he may raise the same to the court within 10 days;
2) make a written statement under oath setting forth the reasons why he cannot
admit the request for admissions..
 The period for filing his answer within 15 days is suspended until the court
resolves the objections.
 Failure to submit a sworn statement denying the request or a written statement
setting forth the reasons will have the consequence of having the matters
requested therein are deemed admitted.
RULE 27
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 You file a motion showing good cause. You have to specify what documents you
want to be produced or photocopied.
THIS RULE COVERS:
1) any books, documents, papers, accounts, letters, photographs, objects or tangible things
are not privileged
2) for the purpose of inspection, photocopying, surveying, measuring and permitting entry
to the property
RULE 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
 This rule is applicable in a case where the physical and mental condition of the
party is in question. You file a motion, also showing good cause.
 Example is if your case is a contract of annulment of contract and you are alleging
that the party is insane. This can also be availed of in cases of guardianship where
the ward is alleged to be insane; or in case for damages arising out of vehicular
accident, you may request the physical examination of the party to know the
extent of injuries sustained.
 If the motion is granted, the court will order the examination of the party.
 The person examined may request from the examining party a detailed report of
the results of the examination. The examining party is entitled from the party
examined a report of the previous examinations conducted on him.
 If the party examined refuses to give to the examining party the result of his
previous examinations, the court may order the former to give the latter copies
results of his previous examination. If he refuses to, the physician who conducted
the examination will not be allowed to testify.
RULE 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
 This rule provides for the other legal consequences of non-compliance with the
modes of discovery.
OTHER CONSEQUENCES COMMON TO ALL:
 Contempt of court
 Payment of reasonable expenses incurred by the requesting party
RULE 30 – TRIAL
RULE 31 – CONSOLIDATION OR SEVERANCE
GR: As a general rule, the court shall first conduct a full-blown trial before rendering
judgment.
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Exceptions:
Instances when the court may render judgment without trial:
1) judgment on the pleadings
2) summary judgment
3) judgment by compromise agreement
4) judgment by default
5) agreed statement of facts
 Agreed Statement of Facts- During the pre-trial conference, if all the proposals
of facts and stipulations are already admitted by the parties, there is no need for a
trial. The case is already deemed submitted because all that is left is a question of
law.
 Even if there are agreed statement of facts between the parties, the court shall still
conduct a trial in the following cases:
1) legal separation
2) declaration of nullity of marriage
3) annulment of marriage
SC CIRCULAR 12-08-08 (Judicial Affidavit Rule):
 This is mandatory in civil cases only. In criminal cases, this is mandatory in RTC.
 Judicial affidavits of all witnesses to be presented must be submitted in 5 days
before the scheduled pre-trial conference.
 If in your complaint, you asked for a preliminary injunction or TRO, see to it that
you also submit the judicial affidavits of your witnesses supporting your TRO within
5 days also.
 Judicial affidavits must conform with the provisions of Sections 3 & 4 of this rule. If
not complied with, it is considered defective and might be objected to by the other
counsel.
 If it is defective and objected to by the other counsel, the remedy may be to move
that you be allowed to submit a judicial affidavit but with a payment of a fine not
less than 1,000 pesos. There must also be a justification.
 If some of the answers or questions in the judicial affidavit are hearsay, they may
be objected to or moved to be stricken from the affidavit or disqualify the witness.
Q: What are the valid grounds for objections insofar as the judicial affidavit is concerned?
A: If it is hearsay, the ground is inadmissibility. This is as provided for in Section 6 of the
rule.
 If a government witness refuses to testify, you may ask the court to subpoena said
witness. You file a motion to the court to issue a subpoena to the witness.
 Hearings may be delegated by the court to its Branch Clerk of Court who is a
member of the Philippine Bar in ex parte hearings, default hearings or in case
there is a written agreement by the parties.
RULE 32
TRIAL BY COMMISSIONER
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 This is usually resorted to in cases involving accounts and it will be very
voluminous, there can be an appointed commissioner who can be an auditor or
anybody who is an expert in that particular field. The court is not equipped
properly in such cases which requires for the appointment of a Commissioner.
CASES WHERE A COMMISSIONER MAY BE APPOINTED:
(a) When the trial of an issue of fact requires the examination of a long account on either
side, in which case the commissioner may be directed to hear and report upon the whole
issue or any specific question involved therein;
(b) When the taking of an account is necessary for the information of the court before
judgment, or for carrying a judgment or order into effect.
(c) When a question of fact, other than upon the pleadings, arises upon motion or
otherwise, in any stage of a case, or for carrying a judgment or order into effect.
 The commissioner may condct hearings and even issue subpoena for the parties to
attend. After the determination of the case, the commissioner is obligated to file a
report. He cannot resolve objections. He may only note the objections and submit
the same to the court.
 The clerk of court, upon receipt of the report of the commissioner, shall issue an
order to the parties to submit their respective comments or objections to the
report within 10 days. The court may either approve the report or reject it
completely, or accept some of the report.
RULE 33
DEMURRER TO EVIDENCE
 After the plaintiff has rested its case, and the defendant found that the plaintiff,
based on facts and law, that the plaintiff has no right to relief, the defendant may
file a motion to dismiss on the ground of demurrer to evidence.
 If the demurrer is granted by the court, the defendant may appeal since the case
is dismissed. If the dismissal is appealed and the decision of the lower court is
reversed, the defendant loses his right to present evidence.
 The appellate court will not remand the case for further trial because the appellate
court itself should decide and resolve the case based solely on the evidence
presented.
RULE 34 - JUDGMENT ON THE PLEADINGS
RULE 35 – SUMMARY JUDGMENTS
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 Judgment on the pleadings can be resorted to by the plaintiff, when in the answer
of the defendant: 1) fails to tender an issue; or 2) otherwise admitted the material
allegations of the plaintiff’s complaint.
 Fails to tender an issue – This means that the answer fails to specifically deny
the allegations of the complaint.
JUDGMENT ON THE PLEADINGS vs SUMMARY JUDGMENTS
 In summary judgment, there is an issue but is not genuine – it is sham or
fictitious.
 No genuine issue – There is no genuine issue if the issue does not call for the
presentation of evidence.
Q: For example: A filed a case for collection of sum of money against B arising
out of a promissory note executed by B in favour of A. B defaulted payment in
some monthly amortization. The defendant B filed his answer and he admitted the
existence of his debt including the fact that he was already in default. However, he
raised that the interest charged against him is usurious. Is this proper for summary
judgment?
A: YES. There is already an admission of the existence of the debt and that the
defendant already defaulted.
 In motion for judgment on the pleadings, the court may just resolve the motion
solely based on the motion and the complaint. In summary judgment, aside from
the motion, there must be affidavits of witnesses and depositions or admissions, if
there are.
 Judgment on the pleadings is applicable in all cases. Summary judgment is not
applicable in all cases. This is only applicable in money claims or petition for
declaratory relief.
 Judgment on the pleadings must be filed at least 3 days but a motion for summary
judgment must be filed at least 10 days before the scheduled hearing.
RULE 36
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
REQUISITES OF A VALID JUDGMENT:
1) in writing
2) personally prepared and signed by the judge
3) must state the facts and the laws applicable
4) the court must have jurisdiction over the parties
5) the court must have jurisdiction over the subject matter
6) There must be a conduct of a full-blown trial where the parties are given opportunity to
present evidence
 Ratio decidendi – body of the decision
 Fallo – dispositive portion
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 If there is an inconsistency between the body of the decision and the dispositive
portion, the dispositive portion will prevail. If the dispositive portion is unclear and
the body is already referred to, and yet the judgment still cannot be understood,
you may file a motion for clarificatory judgment – this can be resorted to if
there is ambiguity in the dispositive portion and the body. The court does not issue
a new decision. It merely issues an amended decision to clarify the ambiguities.
 Rendition of judgment – This is when the judge has already signed the decision
and had given it to the clerk of court.
KINDS OF JUDGMENT:
1) judgment by compromise agreement – This is another exception to the rule that
there must always be trial before a judgment may be rendered. It is a judgment where the
parties were able to settle a case amicably and a compromise agreement is entered into. If
it is final and executory, it may be the subject for execution.
 The compromise agreement must be capable of execution.
Q: As a general rule, a compromise agreement cannot be appealed once it is final and
executory. What about if one party is aggrieved because he believes that there is fraud
employed by the party to make him sign the compromise agreement? Can it be appealed?
What is his remedy?
A: NO. The party may file a motion to set aside the compromise agreement and to annul
the same within 15 days from receipt of the order of the court approving the compromise
agreement.
Q: However, the court did not grant your motion. What is your remedy?
A: There can be appeal already.
2) judgment non pro tunc - It means “now and then.” This is a decision rendered by the
court but has not yet been entered into the records.
3) judgment sin perjuicio - It is a brief judgment containing only the dispositive portion,
without prejudice to the making of a more extensive discussion on the findings of fact and
law to support it.
4) several judgment – This is a judgment in a case where there are several defendants. A
court may render decision in some but not all of the defendants.
Q: What will happen if the court only rendered on some of the defendants, in so far as the
other defendants are concerned?
A: The court may suspend for the meantime the execution of the judgment pending the
case insofar as the other defendants are concerned.
5) separate judgment - This is a judgment when there is more than 1 claim. The court
may render judgment in one of the claims but not all.
6) conditional judgment – This is null and void judgment. This is a judgment based on
the happening of a condition.
7) clarificatory judgment
8) judgment against an entity that does not have juridical personality
9) judgment by default
10) judgment by confession - This is a judgment wherein a defendant files a pleading
just admitting his liability to the plaintiff. This presupposes that the case is already filed in
court. This is allowed by the law.
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11) judgment note - This is not allowed because it is contrary to public policy. Here, the
debtor bargains his day in court. For example, in a promissory note, it is already stipulated
that the debtor will already admit liability even if without trial. There is no case filed yet.
 A judgment becomes final and executory when there is no appeal made by the
losing party and there is already an entry of the same. The judgment must be
entered into the records and the entry is a proof that it is final and executory.
GR: Once a judgment is already final and executory, it cannot be altered anymore because
it becomes immutable. This is the principle of immutability of judgment.
Exception: If it is only to correct clerical error
RULE 37
NEW TRIAL OR RECONSIDERATIONS
 These are remedies after a judgment is rendered but before the same becomes
final and executory.
REMEDIES AVAILABLE AFTER COURT HAS RENDERED DECISION BUT NOT YET
FINAL AND EXECUTORY:
1) motion for new trial
2) motion for reconsideration
3) appeal
MOTION FOR RECONSIDERATION
 This is a motion for reconsideration in connection with final orders and not
interlocutory orders. If the order subject for petition for certiorari under Rule 65 is
an interlocutory order, you may file as many motions for reconsideration as you
want. If it is a final order, you cannot file a 2nd motion.
 Grounds for Motion for Reconsideration:
1) Excessive damages have been awarded.
2) The decision is contrary to law.
3) The findings of the court are contrary to the evidence presented.
 The effect of a timely motion for reconsideration tolls the running of the period to
appeal. The motion should be filed within 15 days from receipt of the decision.
 The motion for reconsideration should not be pro-forma. If the court finds your
motion as pro-forma, it will not suspend the running of the period to appeal.
 If the motion is denied, you may appeal within 15 days or 30 days. The Neypes
doctrine applies. Judges are given 30 days from the moment the case is submitted
for decision to resolve the case.
Q: If the arguments raised in the motion are only reiterations of the arguments raised in
the memorandum which were already treated by the court when it rendered its decision, is
it already considered pro-forma?
A: YES. However, if the movant specifically cited each of the findings of the court which for
him are contrary to the evidence presented or contrary to the applicable law, it will not be a
pro-forma motion.
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 A motion also becomes pro-forma if it is a 2nd motion and if you have not given the
other party a copy of the motion.
Q: Can you appeal a denial of the motion for reconsideration?
A: NO. What is appealed is not the denial but the supposedly final order and judgment of
the court. You can raise as error the denial of the motion for reconsideration.
 If the motion for reconsideration is granted, the court shall issue an amended
judgment. The original judgment is vacated in favour of the amended judgment.
 Affidavit of merit is not required.
MOTION FOR NEW TRIAL
 This is also to be filed within 15 days from receipt of the judgment.
Grounds for Motion for New Trial:
1) fraud, mistake, negligence (FAME) which would have substantially
impaired the right of the party.
 Extrinsic fraud- This fraud prevents the other party from presenting his evidence in
court.
 Mistake – mistake of fact
 Negligence – This must refer to the negligence imputable to the party himself, not
to the counsel.
2) On the ground of newly discovered evidence after judgment has been
rendered and the evidence would not have been obtained even if with due
diligence and that it could have altered the decision
Requisites:
a) The newly discovered evidence must have been discovered after the rendition
of judgment.
b) It would not have been obtained even if due diligence has been exerted by the
party.
c) If obtained, it may alter the results of the case.
 If the court grants a motion for new trial, the decision is vacated and there will be
a new trial or trial de novo. However, the evidence adduced during the trial may
still be considered by the court as long as the evidence is still material and relevant
to the case.
ADDITIONAL REQUIREMENTS TO BE SUBMITTED:
 If the ground is FAME, there should be an affidavit of merit. If your motion does
not have an affidavit of merit attached, it becomes pro-forma.
 If the ground is newly discovered evidence and it consists of the testimony of
witnesses, you must execute affidavit of the witnesses. If the evidence is
documentary, you must attach the documents in support of your motion for new
trial.
Q: Can there be a motion for new trial in part only?
A: NO, but there can be a motion for reconsideration in part only. If this happens, there will
be no more trial or presentation of evidence of the other issues that were not the subject of
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the motion for reconsideration. However, in order to be final and executory, it may have to
wait until the court renders judgment on the other issues.
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
 A petition for relief from judgment is a remedy sought after the decision becomes
final and executory.
REMEDIES IF JUDGMENT IS FINAL AND EXECUTORY:
1) petition for relief from judgment
2) petition for annulment of judgment (Rule 47)
3) collateral attack – This is merely an incident to the action but only when it can be shown
that the court has no jurisdiction.
 A petition for relief from judgment is filed when there is fraud, accident, mistake,
or excusable negligence. It must be filed within 60 days from the time of the
receipt of the decision but not more than 6 months from the entry of judgment.
 It should be filed in the court which rendered the judgment.
 Grounds for filing:
1) fraud
2) accident
3) mistake
4) excusable negligence
 If the court finds the petition sufficient, it will issue an order to the adverse party
to answer such petition. Whether or not the adverse party answers or after the
period for filing an answer has lapsed, the court will conduct a hearing on the
petition. If it is granted, it will conduct another hearing as if a timely motion for
new trial has been filed.
 If you are prevented from taking an appeal, you may file a petition for relief from
judgment as long as the ground falls under FAME.
 If you want the judgment subject of the petition to not be the subject of motion
for execution, your petition must have a prayer for the issuance of a writ of
preliminary injunction or TRO.
 If the appellate court grants the petition in cases wherein the subject is a lost
appeal, it will be ordered to give the appeal due course and elevate the records to
the appellate court as if there has been a timely appeal.
RULE 39
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
 The winning party may file a motion for execution if the judgment is already final
and executory. The motion shall be filed within 5 years from the date of entry. If
Transcribed Notes by: Glaicee Joy T. Paner Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 19
DVOREF College of Law

you are not able to file within 5 years but still within 10 years, you may file an
action for revival of judgment.  However, there are cases wherein even if there no good reason stated, may still
 You may file a motion for execution before the court of origin provided that you be executed even if on appeal:
also submit true copies of such decision of the appellate court and the entry of  Cases that can be executed (cannot be stayed)
judgment. Judgments involving:
EXECUTION AS A MATTER OF RIGHT: 1) injunction
 Execution becomes a matter of right if the judgment subject of the execution is 2) support
already final and executory. A motion for execution is a non-litigated motion. The 3) accounting
court will just look at the entry of judgment. 4) receivership
 Grounds denying a writ of execution:  A decision for support is a support which does not have finality. It can be executed
1. when there are subsequent facts and circumstances which rendered the judgment anytime and you can always ask for increase or decrease at any time. You just
and impossible have to file a motion for increase of support.
2. when there has been novation by the parties
3. on equitable grounds when there has been a change in the situation of the parties Q: What will be the remedy of the losing party to prevent the grant of the motion for
which makes execution inequitable execution?
4. when the judgment is incomplete A: There are two remedies:
5. when it has become dormant 1) File a motion to quash the writ of execution.
6. when a petition for relief or an action to enjoin the judgment is filed and a 2) If the court grants the motion for execution pending appeal, you may file a
preliminary injunction is prayed for and granted supersedeas bond.
EXECUTION AS A MATTER OF DISCRETION: - The supersedeas bond will answer for whatever damages which may be
 This is an execution pending appeal which can be filed prior to the expiration of sustained by the party whose motion was granted by the court if it turns out later
the appeal period or even after the expiration of the appeal period as long as the that he really won.
records of the case have not yet been transmitted to the appellate court. This is
the so-called residual powers of the court – the court may still entertain actions  Grounds for quashing a writ of execution:
such as a motion for execution of judgment. 1. When it was improvidently issued
 There must be good reasons stated in your petition to warrant execution pending - “improvidently issued” means that the writ was issued without basis or good
appeal. reason to support it
 Good reasons which may warrant the granting of the motion pending 2. It was defective in substance
appeal: 3. It is issued against the wrong party
1. Where the appeal is clearly dilatory 4. The judgment was already satisfied
2. Where the lapse of time would make the ultimate judgment ineffective 5. It was issued without authority
3. Where the judgment is for support and the beneficiary is in need thereof 6. A change in the situation of the parties renders the execution inequitable
4. Where the articles subject of the case would deteriorate 7. The controversy was never validly submitted to the court
5. Where the defendants are exhausting their income and have no other property 8. When the terms vary with the terms of the judgment
aside from the proceeds from subdivision lots subject of the action
6. Where the judgment debtor is in imminent danger of insolvency  In case wherein the decision of the court of origin which was executed pending
7. Where the prevailing party is of advanced age and of precarious state of health appeal by the appellate court, the court may issue an order for restitution or
8. Where there is uncontradicted evidence showing that, in order to house reparation.
machineries which they were forced to place on a public street, movants were in  Restitution – involves properties. It means that the property must be returned.
extreme need of the premises subject of the suit and the possession whereof was  Reparation – If restitution is no longer possible, compensation may be given to
adjudged to them in the trial court's decision, and the corresponding bond to the party.
answer for damages in case of reversal on appeal had been posted by them  Rules for reparation:
9. Where the case involved escrow deposits and the prevailing party posts sufficient 1) If the purchaser at the public auction is the judgment creditor, he shall pay the
bond to answer for damages in case of reversal of the judgment full amount of the value at the time of its seizure plus interests thereon;
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
2) If the purchaser is a 3rd person, the judgment creditor shall pay the judgment
debtor the amount realized at the sale plus interest thereon;
3) If the award has been reduced, the judgment creditor shall only return the
excess.
IMPLEMENTATION OF THE WRIT OF EXECUTION:
 The sheriff shall submit a return to the court in connection with the
implementation of the writ of execution within 30 days whether it was satisfied or
not satisfied.
 There are three modes in implementing the writ:
1) immediate payment - The judgment obligor or losing party is duty-bound to
pay the amount covered by the judgment. If the winning party refuses to receive
it, the sheriff may deposit it with the clerk of court.
2) satisfaction by levy – If there is no immediate payment, this may be resorted
to. Levy is an act of the sheriff wherein he sets a part or a portion of a property of
the judgment obligor to satisfy a judgment of the court
 Levy can still be made even after the lapse of 5 year period as long as the motion
for execution and the corresponding writ of execution within the 5 year period.
3) The judgment obligor is given the option which property will be used
to satisfy the judgment. If the judgment obligor does not exercise this option,
the sheriff shall first levy the personal property. If there are no personal properties
or it is not sufficient, real properties will then be levied.
JUDGMENT FOR SPECIFIC ACTS vs SPECIAL JUDGMENT:
 Judgment to perform specific acts – It is a judgment compelling a party to do
specific acts such as:
1. directing a person to execute a conveyance;
2. to deliver documents
3. to remove improvements thereon;
4. to deliver personal property
5. delivery or restitution or real property
 OTHER ACTS NOT ENUMERATED ARE COVERED BY SPECIAL JUDGMENT.
 Special judgment- This a judgment for the personal of an act other than the
specific acts enumerated in Section 10.
 A special judgment cannot be performed by a 3rd person. The party obliged should
be the one to perform the act. A judgment to perform specific act may be
performed by the 3rd person if the party ordered to perform could not do so.
 When there is a third person claiming a right over the property, terceria may be
availed of.
 Remedies for a third party:
1) Terceria
2) file a reivindicatory action, a separate action to recover ownership of the property
3) file a motion for summary judgment of his claim before the court which rendered
the decision (Villasi case) – This is the most common remedy.
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 Terceria- The third person must submit an affidavit to the sheriff, which states his
grounds and right to the property. The sheriff is not bound to continue the
execution except when the judgment oblige files a bond of an amount not less
than or equal to the property subject of the execution.
 The bond will answer for whatever damages that may be sustained. The period for
running after the bond is 120 days from the posting of the bond.
 The bond requirement may be dispensed with if the property subject of the writ
and being claimed by the 3rd person is owned by the Republic of the Philippines.
PUBLIC AUCTION:
 After the sheriff has levied the properties, there must also be a public auction
before a property may be sold. A notice of sale specifying the time and date must
be posted because if the sale was made without complying with this requirement,
the sale is null and void. Even if there was a notice specifying the sale but the sale
was made after the said date, the sale is also null and void.
 Highest bidder- It is the person who offers the highest amount with least
conditions.
 After the auction, the sheriff will issue a certificate of sale which should be
registered in the ROD of the city or province where the property is located because
of the right of redemption.
 Right of redemption – The judgment obligor has a right to redeem the property
within 1 year from the registration of the sale. However, if it is a personal
property, there is no redemption.
 If there is no redemption, the sheriff shall give the judgment oblige a final
certificate of sale. Upon the receipt of the final certificate of sale, the highest
bidder may already claim the property. He may also ask the court to issue a writ of
possession.
 Writ of possession may be issued in the following:
1) land registration proceedings which are in rem
2) extrajudicial foreclosure of mortgage
3) judicial foreclosure of mortgage
 The duty of the court to issue a writ of possession is ministerial if it is the debtor
who is in possession if the property. If it is possessed by a 3 rd person, it is not
ministerial because the court must conduct a hearing to determine his right or
claim.
FINAL JUDGMENTS AND DECISIONS:
 This is Section 47 of Rule 39 which talks about the concept of res judicata. To
become res judicata, there must be a judgment rendered based on a full-blown
trial.
FOREIGN JUDGMENTS AND DECISIONS:
 There are two actions talked about in Section 48. In the 1st paragraph, it talks
about action in rem. The 2nd paragraph refers to an action in personam.
 A foreign judgment or decision cannot be enforced in the Philippines – it means
that it cannot be the subject of execution. It will only give rise to a right of action.
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 In case of non-compliance of the foreign judgment, the other party may fle a case
before a competent court and may raise defenses.
 Good defenses to counteract or rebut the foreign judgment:
1) Want of jurisdiction
2) Fraud
3) Collusion
4) Clear mistake of law or fact
RULE 40- APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL
COURTS
RULE 41- APPEAL FROM THE REGIONAL TRIAL COURTS
RULE 42 – PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE
COURT OF APPEALS
TAKE NOTE:
 This rule is appeal from MTC to the RTC. Rule 41 is appeal from RTC to CA and
Rule 42 is the recourse of the losing party in cases decided by the RTC in the
exercise of its appellate jurisdiction.
 If it is a decision from the 1st level court to the RTC, it is ordinary appeal.
 If it is a decision in the exercise of the RTC in its original jurisdiction, it is by
ordinary appeal to the CA. If it is a decision rendered in the exercise of its
appellate jurisdiction, it is via petition for review under Rule 42.
 Rule 43 is petition for review of quasi-judicial agencies.
 If it is a decision of the RTC in the exercise of its original jurisdiction and the
concern is pure question of law, one can go directly to SC via petition for certiorari
under Rule 65.
APPEAL FROM 1st LEVEL COURTS TO RTC
 Appeal from 1st level court to RTC must be filed within 15 days unless record on
appeal is required. If record on appeal is required, the period is 30 days from
receipt of the decision unless a motion for reconsideration or motion for new trial
is applied, fresh period rule applies.
 Record on appeal is required in:
1) special proceedings cases
2) cases where there can be multiple appeals
 The period of 15 days and 30 days cannot be extended. In the case of GSIS vs
Gines, the SC ruled that the period for appeal if strictly construed for reasons of
public policy.
 A notice of appeal is filed in the court which rendered the decision, together with
the payment of docket fees. However, there is liberal interpretation in the payment
of docket fees. It may be a ground for dismissal of the appeal but the court is
given discretion whether it will dismiss the case simply because of failure to pay
the docket fees.
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 Upon receipt of the notice of appeal, the clerk of court of the 1st level court has the
obligation to transmit the records of the case together with a notice of appeal to
the RTC. The clerk of court of the RTC, upon receipt of the appealed case, shall
notify the parties that the appealed case is already in the court.
 The notice shall contain an order requiring the parties to submit their respective
memorandum. The appellant is required to submit his memorandum within 15
days from receipt of the notice and to furnish copy to the appellee. This 15 day
period may be extended on meritorious grounds as long as the motion is filed
before the lapse of the original period.
 Failure to submit the appellant’s memorandum may be a ground for dismissal of an
appeal.
Q: What will the court do if the appealed case is not based on a trial of the merits? If the
basis of the appeal is on lack of jurisdiction, what will happen?
A: The court may act on the case as if it as originally filed therein and that it has jurisdiction
over the case subject to certain amended pleadings and submission of documents as may
be warranted.
APPEAL FROM REGIONAL TRIAL COURTS
 This covers decisions which are already final.
 The following cannot be subject of an appeal:
1) An order denying a motion for new trial or reconsideration;
2) An order denying a petition for relief or any similar motion seeking relief from
judgment;
3) An interlocutory order;
4) An order disallowing or dismissing an appeal;
5) An order denying a motion to set aside a judgment by consent, confession or
compromise on the ground of fraud, mistake or duress, or any other ground
vitiating consent;
6) An order of execution;
7) A judgment or final order for or against one or more of several parties or in
separate claims, counterclaims, cross-claims and third-party complaints, while the
main case is pending, unless the court allows an appeal therefrom; and
8) An order dismissing an action without prejudice.
 The appropriate remedy in the above circumstances is petition for certiorari under
Rule 65 on the ground of grave abuse of discretion amounting to lack or excess of
jurisdiction. In Rule 65 there are three remedies: certiorari, prohibition, and
mandamus.
 The remedy for dismissal of an appeal is petition for mandamus to compel the
court to approve your appeal.
 The appeal periods are also the same in Rule 40.
 In appeal requiring for a record on appeal – a record where you include
everything that happened in the case, aside from complying with the material
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
data rule, it is likewise required that the record on appeal must show on its face
that the appeal was filed on time.
 Upon receipt of the record on appeal, the court will approve it if it finds that it is
sufficient. If the court finds that the records lack some parts of the proceedings
which should be state din the record, the court will not dismiss it. You are given 10
days to comply with the lacking requirements or to correct some parts of the
record.
Q: When is an appeal deemed perfected?
A: Take note of Section 9 of Rule 41. As to the party making the appeal, the period of
appeal is perfected at the time that he files the notice of appeal, but as far as the others are
concerned, it is after the lapse of the period for appeal and as long as the court has not yet
transmitted the records to the appellate court.
 Furnishing a copy of your notice of appeal to the adverse party through his counsel
is a mandatory requirement. However, failure to do so will not make the notice
defective. It will not affect the validity of the notice of appeal.
PETITION FOR REVIEW FROM RTC TO CA UNDER RULE 42
 This is a remedy that can be resorted to if the decision is a decision of the RTC in
the exercise of its appellate jurisdiction.
 The filing of the petition is also within 15 days from receipt of the decision and 30
days if record on appeal is required. The period here is extendible. If you want to
extend the period, you have to file a motion for extension of time to file petition
for review.
 Appeal for habeas corpus is only within 48 hours from receipt of the questioned
decision.
 The motion for extension is filed in the appellate court. You must also attach the
necessary appeal fees.
 In appeal for forcible entry cases, where the RTC affirmed the decision of the 1 st
level court, the decision can be executed already. The only way to prevent it is to
file a petition for review and it was already acted upon by the appellate court. If a
motion for execution is filed, you may raise such fact as way of opposition that the
petition for review which you filed before the CA was already considered or acted
upon.
 There must be 7 copies of the petition and must also include the original and
certified true copy of the questioned decision of the 1st level court.
 CA may immediately dismiss the case if:
1) There is no substantial ground to warrant the dismissal of the decision.
2) If it is found that the filing of the petition is manifestly for delay.
 Upon receipt of the petition, CA will issue an order requiring the parties to submit
their comment within 10 days, in 7 legible copies. After receipt of the comment,
the CA may render a decision based on the records unless it requires the parties to
submit respective memorandum.
GR: The award or judgment is stayed under this Rule.
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Exception: Unless in cases covered by the Rules on Summary Procedure, wherein you
have to file for the issuance of a writ of preliminary injunction.
RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES
TO THE COURT OF APPEALS
 This includes quasi-judicial agencies enumerated in the Section 1 of this Rule
except CTA which is co-equal with CA. If cases decided by the NLRC, you go to CA
but under certiorari on Rule 65. Also included here is the Office of the
Ombudsman.
 The same period – 15 days. Also extendible for another 15 days.
 It can also be dismissed if it is only filed to delay or there is no substantial reason
to reverse the questioned decision.
 You must also file 7 copies and the comment also will be in 7 copies.
Q: What is the difference between Rule 42 and this Rule?
A: There are two features not present in Rule 42:
1) It can be resorted even if the petition involves pure question of law.
2) The filing of the petition will not stay the decision.
RULE 44
ORDINARY APPEALED CASES
 This is appeal from the RTC to the CA.
 The records are to be transmitted from the RTC to the CA within 30 days. If the
clerk of court does not transmit, you may file a motion for the transmittal of the
records of the case to the appellate court and the clerk of court may be held
administratively liable.
 Upon receipt of the records of the appealed case, the clerk of court of CA will issue
a notice to the appellant requiring him to submit his appellant’s brief within 45
days and furnish 2 copies to the appellee. The appellee likewise is given 45 days
from receipt of the appellant’s brief to submit his appellee’s brief and to furnish 2
copies to the appellant. If the former wishes to submit a reply brief, he may do so
within 20 days from receipt of the brief.
 The 45 day period is not extendible except only for the most compelling reason.
 Cases where it is memorandum that is required to be submitted (30
days):
In special cases such as:
1) certiorari
2) prohibition
3) mandamus
4) quo warranto
5) habeas corpus
 The appellant’s brief must contain assignment of errors. Failure to contain the
same will warrant the dismissal of the appeal.
Transcribed Notes by: Glaicee Joy T. Paner Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 23
DVOREF College of Law

 The CA will only resolve the appeal based on the assigned errors raised on your SUPREME COURT CAN REVIEW FINDINGS OF FACT:
appeal. 1) When the conclusion is a finding grounded entirely on speculations, surmises or
INSTANCES WHERE THE CA MAY STILL RENDER DECISION EVEN IF THERE IS NO conjectures
ASSIGNMENT OF ERRORS: 2) When the inference made is manifestly mistaken, absurd, or impossible
1) errors affecting jurisdiction over the subject matter; 3) Where there is grave abuse of discretion in the appreciation of facts
2) plain and clerical errors; 4) When the judgment is based on misapprehension of facts
3) unassigned errors closely-related to or dependent upon an assigned error and properly 5) When the findings of facts of the CA are conflicting
argued in the brief; 6) When the CA, in making its findings, went beyond the issues of the case
4) unassigned errors which are necessary for a just decision in the case or in the interest of 7) When the CA manifestly overlooked certain relevant facts not disputed by the
justice; parties and which, if properly considered, would justify a different conclusion
5) if they involve questions passed upon in the trial court and are matters of record having 8) Where the findings of fact of the CA are contrary to those of the trial court
some bearing on the issues submitted which the parties failed to raise or which the lower
court ignored;  There must be 18 copies of the petition to be submitted. One copy should contain
6) matters not assigned as errors on appeal but upon which the determination of a question the certified true copy and the original copy of the decision subject of the appeal,
properly assigned is dependent to be filed within 15 days. The comment shall likewise be in 18 legible copies to
be filed within 10 days.
 Filing of a motion for extension of time to file this petition is allowed as long as it
RULE 45 is filed before the lapse of the original 15 day period.
APPEAL BY CERTIORARI TO THE SUPREME COURT  Here, you may be given a period of 30 days if the motion for extension is granted.
 The same grounds such as when it is filed to manifestly delay or there is no
 This includes decisions of: substantial ground for the reversal of the decision may warrant the dismissal of
1) Court of Tax Appeals the appeal motu proprio by the court.
2) Sandiganbayan  Upon submission of the comment, the court may issue an order to require that
3) Regional Trial Courts in the exercise of original jurisdiction when the appeal is only the records of the case be elevated to the Supreme Court. If it can be decided
focused on pure questions of law based only on the comments, it may still do so. Sometimes, the parties may also
4) Court of Appeals- except criminal cases of reclusion perpetua, life imprisonment be required their respective memorandum.
and death, you go to SC by ordinary appeal  The award under this Rule will be stayed.
 This remedy is available to both civil and criminal cases except if punished by
death, reclusion perpetua, or life imprisonment.
RULE 46
RULE 45 vs RULE 65 ORIGINAL CASES
 Rule 45 is a mode of appeal; Rule 65 is an entirely independent action;
 Rule 45 – you do not have to include the public respondent which rendered the  These are cases originally filed before the CA such as certiorari, prohibition,
decision; Rule 65 – you have to implead the public respondent; manadamus and quo warranto. As provided by the Rules, these cases are within
 Rule 45 – no need for filing of motion of reconsideration; Rule 65 – there is a need the concurrent jurisdiction of the CA and the RTC. However, in reality, it is the
for a motion for reconsideration; principle of the hierarchy of courts that is complied with.
 Rule 45 – applicable to final orders; Rule 65 – applicable to interlocutory orders  If the issue is one of national importance, you may go directly to SC as exception
issued by the courts because of grave abuse of discretion amounting to lack or to the principle of hierarchy of courts.
excess of jurisdiction;  There must be 7 copies filed.
 Rule 45 focuses only on pure questions of law - to determine the applicable law  The most important to consider here is the question as to when the court acquires
on a given state of fact. jurisdiction over the person of the respondent. It is either:
1) By service to the respondent of the initial action or order taken by the CA
 The factual findings of the lower court will not be disturbed by the SC except in 2) By voluntary submission- the respondent might have filed already a comment
some cases. to the petition
Transcribed Notes by: Glaicee Joy T. Paner Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 24
DVOREF College of Law

 If it is found to be insufficient in form and substance, comments may be required  Here, there may be markings of exhibits, listing of witnesses, proposals,
to be submitted within 10 days from receipt of the order. stipulations or admissions of certain documents may also be conducted.
 Although preliminary conference is dependent upon call by the court, the parties
RULE 47 may still file a motion for the conduct of the same.
ANNULMENT OF JUDGMENTS OF FINAL ORDERS AND RESOLUTIONS  This may be applied even on appealed cases in CA.
 This is an extraordinary remedy and is one of the so-called post-sentence remedy RULE 49
of a judgment which is already final and executory.
ORAL ARGUMENT
 This is available only when appeal or new trial is not lost due to the fault of the
petitioner.  When you file a litigated motion, it must comply with Sections 3, 4 & 5 of Rule 15.
 This can be availed of when the losing party/petitioner failed to avail of : Otherwise, the motion is considered as mere scrap of paper.
1) appeal;  The motion must be served at least 3 days before the scheduled hearing but the
2) petition for relief from judgment; hearing must be scheduled within 10 days from the filing of the motion.
3) motion for new trial; and Q: Is a notice of hearing required when filing a motion before the CA?
4) through no fault of the petitioner A: NO. Under the last section of this Rule, it is not required to specify the date of hearing. It
is up to the CA to schedule the hearing. If it finds that there is a need for a hearing, it will
GROUNDS FOR ANNULMENT OF JUDGMENT: be the one to set the same.
1) extrinsic fraud – fraud which prevent the party from fairly presenting his case before
the court RULE 50
- File the annulment within 4 years from discovery of the fraud. DISMISSAL OF APPEAL
2) lack of jurisdiction (either rover the person of the defendant or over the subject
matter)  Section 1 enumerates the grounds for dismissal of an appeal.
- File it before it is barred by estoppel and laches.
Section 1. Grounds for dismissal of appeal. — An appeal may be dismissed by the Court of
 There must be 7 copies. Appeals, on its own motion or on that of the appellee, on the following grounds:
 If the court finds that the petition is sufficient in form and substance, it will issue (a) Failure of the record on appeal to show on its face that the appeal was
summons to the respondents named therein for them to file their answer within 15 taken within the period fixed by these Rules;
days. (b) Failure to file the notice of appeal or the record on appeal within the
 The CA may refer the case to the RTC for the reception of evidence if there is a period prescribed by these Rules;
need for the same. (c) Failure of the appellant to pay the docket and other lawful fees as
 If the court finds that the lower court indeed has no jurisdiction over the subject provided in section 5, Rule 40 and section 4 of Rule 41; (Bar Matter No.
matter of the case, it will dismiss the case but subject for re-filing in a court of 803, 17 February 1998)
competent jurisdiction. (d) Unauthorized alterations, omissions or additions in the approved record
 If the ground is extrinsic fraud, the case will be remanded back to the trial court as on appeal as provided in section 4 of Rule 44;
if a motion for new trial was timely filed. (e) Failure of the appellant to serve and file the required number of copies of
 Appropriate restitution or reparation or any other available relief may be resorted his brief or memorandum within the time provided by these Rules;
to if the court finds that the petition for annulment is meritorious and there has (f) Absence of specific assignment of errors in the appellant's brief, or of
already been an execution of the judgment. page references to the record as required in section 13, paragraphs (a),
(c), (d) and (f) of Rule 44;
RULE 48 (g) Failure of the appellant to take the necessary steps for the correction or
PRELIMINARY CONFERENCE completion of the record within the time limited by the court in its order;
(h) Failure of the appellant to appear at the preliminary conference under
 In civil cases, the court refers the case to the clerk of court for the conduct of Rule 48 or to comply with orders, circulars, or directives of the court
preliminary conference. What happens during a preliminary conference is the same without justifiable cause; and
in pre-trial conference. (i) The fact that the order or judgment appealed from is not appealable. (1a)
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
Q: Can you dismiss or withdraw your appeal?
A: YES, withdrawal of an appeal if a matter of right before the CA if the appellee has not
yet submitted his appellee’s brief. However, you may still file for the dismissal of your
appeal even after the submission of the appellee of his appellee’s brief but it is already
discretionary upon the court.
 If you went to the CA via the wrong remedy, your case will be dismissed. It will
not be remanded anymore to the appropriate court.
RULE 56
ORIGINAL CASES; APPEALED CASES
 Cases which are originally filed in the SC are enumerated under Sec. 1. The
requirement is to prepare at least 18 copies:
Section 1. Original cases cognizable. — Only petitions for certiorari,
prohibition, mandamus, quo warranto, habeas corpus, disciplinary proceedings
against members of the judiciary and attorneys, and cases affecting ambassadors,
other public ministers and consuls may be filed originally in the Supreme Court.
 In cases decided by the SC En Banc, the rule is majority vote. If during the first
deliberation, they cannot get a majority vote, they will re-deliberate again. If after
re-deliberation and there is still no majority vote, the decision subject of the appeal
is affirmed or the motion or resolution is considered denied.
 If one of the justices dissents, his dissent shall be taken in consideration by the
Clerk of Court. Since majority votes cannot be had, the records of the case will be
transmitted to the presiding executive justice who will choose two more justices to
form a special division. In the special division, the majority vote is also required.
PROVISIONAL REMEDIES (RULES 57 – 61)
1) Preliminary attachment – Rule 57
2) Preliminary injunction - Rule 58
3) Receivership - Rule 59
4) Replevin - Rule 60
5) Support pendente lite – Rule 61
__________________________________________________________________________
 There are other provisional remedies covered by special laws such as those
provided under:
a. Rules on Writ of Amparo:
1) temporary protection orders;
2) inspection orders, production orders;
3) witness protection orders;
4) protection order – an order to any person who has a custody of any designated
documents such as papers, letters, etc.;
b. special provisional remedies under the New Civil Code;
Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 25
c. provisional remedies under R.A. 9372 (Anti-Terrorism Law) – Sections 39, 26,
and 27;
d. provisional remedies under R.A. 9262 (VAWC Law);
e. interim reliefs (ex. Temporary protection order under R.A. 9262 in cases of acts
of violence against the petitioner-complainant);
f. provisional remedies under R.A. 9194 (Anti-Money Laundering Act);
g. provisional remedies that may be availed of in declaration of nullity or
annulment proceedings;
h. provisional remedies in environmental cases (TEPO or EPO after the court
conducts a hearing);
i. provisional remedies under R.A. 9285 (Alternative Dispute Resolution):
1) preliminary injunction directed against a party to arbitration;
2) preliminary attachment or garnishment offunds in custody of banks or 3rd
persons;
3) appointment of a receiver;
4) retention, presentation, or inspection of a property;
5) assistance in enforcement of a measure or protection granted by the arbitrary
tribunal which cannot be enforced by the same
RULE 57
PRELIMINARY ATTACHMENT
 These are provisional remedies because they are only temporary measures and
may be availed of durng the pendency of an action. These are ancillary because
they are only dependent upon the principal action. That is why you have to first
identify the principal action because these remedies are only incidental to the main
action. This can be issued even by the 1st level courts as long as the amount
subject of the case is within the jurisdiction of the same.
 COMMON REQUIREMENTS IN THESE REMEDIES:
1) There must always be an affidavit of merit except receivership.
- When you file an action, you pray for the issuance of the remedy, see to it that
there is an attached affidavit of merit except in the provisional remedy of
receivership.
2) Posting of a bond except temporary restraining order or writ of preliminary
injunction and support pendent lite
- The purpose of this is to answer for whatever damages which might be incurred
by the other party should it turn out that the applicant is not actually entitled to
the provisional remedy as prayed for.
Section 1. Grounds upon which attachment may issue. — At the commencement of the
action or at any time before entry of judgment, a plaintiff or any proper party may have the
property of the adverse party attached as security for the satisfaction of any judgment that
may be recovered in the following cases:
(a) In an action for the recovery of a specified amount of money or damages, other than
moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
or quasi-delict against a party who is about to depart from the Philippines with intent to
defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or converted to
his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker,
agent, or clerk, in the course of his employment as such, or by any other person in a
fiduciary capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken,
detained or converted, when the property, or any part thereof, has been concealed,
removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about to
do so, with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or
on whom summons may be served by publication.
 In the ground of fraud, the fraud may include dolo causante or dolo incidental.
However, in one decision of the SC, if you allege fraud, it must not be a general
averment. You must specifically allege the acts which constitute fraud. The fraud
must be averred with particularity. If you have a general averment, the SC held
that the writ of preliminary attachment is not valid and the judge committed grave
abuse of discretion in excess of his jurisdiction.
 If the ground is not any of the enumerated grounds, the writ is null and void or
ineffective. This is one of the grounds for dissolution of writ.
 Prayer for the issuance of the writ can be done at the commencement of the
action (incorporate in your complaint) or at any time before entry of judgment
(this is done by filing a motion). If there is already an entry of judgment, the
remedy is already execution.
 If for example the defendant is about to abscond or dispose the property, you may
file for the issuance of a writ of preliminary attachment.
 Levy on execution – Attachment can be preliminary: it means that this is when
the case is already final. There is already a judgment ordered by the court and you
want the preliminary attachment to be made permanent. It is called final levy on
execution.
 The issuance of a writ of preliminary attachment is always ex parte. There is no
need for a hearing because if a hearing is required, it will give the defendant an
opportunity to dispose his properties and this will render nugatory the purpose of
the remedy of preliminary attachment.
THREE STAGES IN WRIT OF PRELIMINARY ATTACHMENT:
1) The court issues an order granting the application for the issuance of the writ.
2) The writ is issued by the court.
3) The writ is implemented.
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 The first two stages can be done ex parte as long as the requirements are
complied with:
1) There must be an affidavit which must comply with Sec. 3 of the Rule;
2) There must be a bond based on the amount as fixed by the court.
- The basis of the bond is the claim of the plaintiff in the complaint.
GR: The third stage requires that the court must have already acquired jurisdiction over the
person of the defendant. The implementation of the writ must already be coupled with the
service of the summons, the complaint, the application, and the writ itself. This is called
contemporaneous service of summons by the sheriff.
Exceptions to contemporaneous service:
1) The summons could not be served personally or by substituted service despite
diligent efforts;
2) The defendant is a resident of the Philippines temporarily absent therefrom; or
3) The defendant is a non-resident of the Philippines; or
4) The action is one in rem or quasi in rem.
GR: All properties may be subject of attachment including properties in the possession of
3rd persons such as credit, bank deposits, etc. as covered by the concept of garnishment.
Exception: Properties which are exempted from execution such as Family Home.
 Examination on a judgment obligor where the person may be ordered to appear in
court and testify whether he is in possession of the property subject of the writ –
this is another remedy in Sec. 10. However, this only applies in cases where the
third person admits that he is in possession of indebtedness of the defendant. if he
denies it, Sec. 10 may not be availed of. There must be a court order to compel
the examination of the defendant.
IMPLEMENTATION OF THE WRIT:
 If there is a claim by a 3rd person, terceria may be availed of. The 3rd person must
execute an affidavit insofar as hi claim is concerned and the sheriff will not
continue with the implementation unless the applicant posts a bond to answer for
whatever damages may be incurred.
Q: The property is subject of the writ of preliminary attachment. The sheriff is about to
implement the writ. You are the defendant, what will you do to stop the implementation?
A: Post a counter-bond. The counter-bond is the same amount as that of the bond. The
purpose of which is to answer for the liability of the defendant if it turned out later that the
plaintiff is entitled to the preliminary attachment as prayed for. This is one of the ways to
discharge a writ of preliminary attachment.
GROUNDS FOR DISCHARGING A WRIT:
1) if the defendant has posted a counter-bond or cash deposit;
2) if it is excessive but only up to the excess;
3) The writ was improvidently issued;
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
4) The writ is fatally defective;
5) When the judgment is rendered against attachee/creditor;
6) The property is exempt from execution.
Q: Can you file an independent action to recover the damages on the bond on account of
irregular, improper, or excessive writ?
A: NO. The procedure is laid down in Sec. 20 of this Rule. It must be filed with the RTC
before an appeal is perfected. It may also be filed before the judgment becomes executory
with due notice to the attaching party and the surety/sureties.
Exceptions (A separate action may be filed in the following):
1) If it is dismissed based on ground of lack of jurisdiction;
2) When the party is not a party of the case;
3) When the person whose property was attached was not given an opportunity to prove
his damages; and
4) When the court is prevented from rendering judgment which should include a claim for
damages
 Attachment may also be resorted to in cases involving defendants who are not
residents of the Philippines but the action is in rem or one which affects the
personal status of the plaintiff. You may attach the property in order for the court
to acquire jurisdiction over the case.
 Garnishment is a kind of attachment. This refers to properties in the possession of
3rd persons.
RULE 58
PRELIMINARY INJUNCTION
PRELIMINARY INJUNCTION:
 Kinds of injunction:
1) preliminary injunction – The purpose of this is to restrict someone from doing
an act. This is also called a temporary restraining order.
2) preliminary mandatory injunction – The purpose is to compel the performance
of an act.
It can also be:
1) preliminary injunction – This is prior to the final judgment or when the case is
still going on.
2) final injunction – You pray that the injunction becomes permanent or final after
the trial of the case. If the court finds your motion meritorious, the court may
make it permanent.
 Injunction may be provisional remedy or a main action in itself.
GR: Preliminary injunction applies when the act is about to be done or is being done. It will
not apply to acts already committed because there is nothing to prevent anymore.
Exception: If the act committed is continuing in nature – such as in unlawful detainer or
forcible entry case.
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 Preliminary injunction can also be issued by 1st level courts particularly in unlawful
detainer and forcible cases which are within the jurisdiction of the same. In issuing
this, the court can just issue it.
PRELIMINARY MANDATORY INJUNCTION
 The court exercises caution in issuing it. To be able to avail of this remedy, you
must prove the requisites for the issuance of the same.
 Requisites for issuance of preliminary mandatory injunction:
1) The invasion of the right is material and substantial;
2) The right of the complainant is clear and unmistakable; and
3) There is an urgent and paramount necessity for the writ to prevent serious
damage;
4) The effect of the mandatory injunction would not be to create a new relation
between the parties which was arbitrarily interrupted by the defendant.
- The writ of preliminary mandatory injunction should not establish a new
relationship between the applicant and the defendant. This was also held in the
case of Merville Park Homeowners Assoc. Inc. vs. Velez.
 Requirements for the issuance of the writ (either preliminary injunction
or preliminary mandatory injunction:
1) There has to be a verified complaint and must show facts that the applicant is
entitled to the relief.
- There must also be an affidavit of merit.
2) The grounds in Sec. 3 must be enumerated in the complaint;
3) There has to be a bond unless otherwise exempted by the court.
- The bond is in an amount fixed by the court to answer for whatever damages
that the party sustained if later turns out that the applicant is not entitled to the
relief prayed for.
 If the injunction is against a public officer whom you want to enjoin from doing
something. If there is a private party who will sustain damages, the court will
require the posting of a bond.
 There must be a: 1) notice; and 2) a hearing, before a writ of preliminary
injunction may be issued by the court.
Q: When the complaint involves a prayer for the issuance of a writ of preliminary injunction,
what will happen?
A: If it is in a multi-sala court or even a single-sala court, and there is extreme urgency
which will cause grave injustice and irreparable injury, the executive judge is allowed a TRO
good for 72 hours. Thereafter, the Sheriff shall serve the summons together with the notice
of hearing of the TRO to upon the defendant within 24 hours. If in a multi-sala court, it is
after the court has received the records of the case after it was raffled.
 Sec. 5 of Rule 57 also applies in this Rule. The service of summons together with
the complaint must be contemporaneously issued upon the defendant.
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 The court is still mandated to conduct a hearing within the 72 hours whether there
is a need to extend the 72hrs TRO to 20 days. If the court fails to act upon it or
conduct a hearing, it is deemed automatically vacated.
 In the CA, the life of the writ is 60 days while in the SC, there is no expiration
unless otherwise revoked by the SC itself.
Q: Can a TRO be extended beyond the 20-day period?
A: As a GENERAL RULE, No, it cannot be extended.
EXCEPTION: However, if there are supervening facts or facts that were not yet known at
the time of the filing of the writ exist after the writ was issued, the court may extend the
first writ or may issue another writ.
 The basis of the court to grant the writ ex parte for the 72 hours is extreme
urgency and the applicant may suffer grave and irreparable injury. For the 20
days, the basis is that the applicant may suffer grave and irreparable injury.
TAKE NOTE: Unlike in preliminary attachment, there must always be notice and hearing
before the court may issue a preliminary injunction or preliminary mandatory injunction
unless there is extreme urgency or the applicant may suffer grave injustice and irreparable
injury; the court may issue the writ ex parte.
A WRIT OF PRELIMINARY INJUNCTION CANNOT BE ISSUED BY RTC IN THE
FOLLOWING:
1) Those covered by RA 8975- the act which will ensure the expeditious
implementation and completion of government infrastructure projects. It is only
the SC that can issue a TRO to prevent the completion of gov’t. infrastructure
projects.
2) Those cases covered by the Rules of Procedure in Environmental cases. It is still
only the SC that can issue a TRO to prevent the enforcement of environmental
laws.
3) Those cases involving or arising out of labor disputes. It is within the jurisdiction of
the NLRC.
4) Against the Assets Privatization Trust
5) Against Presidential Agrarian Reform Council or any of its duly authorized agencies
in any case committed by the application and implication of the Comprehensive
Agrarian Reform Program (Sec.55 of RA 6657)
6) Against public administrative officers in the issuance of public grants for the
exploitation of natural resources under PD no. 605
7) Against courts or tribunals of co-equal rank- For example, if you want to enjoin an
RTC, you cannot file it in another RTC. You should file it before the CA or SC
because they are higher courts than RTC.
8) Against gov’t. agencies of co-equal branch or rank (ex. SSS, GSIS, SEC)
9) Against the execution of an award or workmen’s compensation
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10) To restrain the collection of any national internal revenue fee, tax, or charge
imposed by the government (BIR)
11) To enjoin the Bureau of Customs from exercising its power to seize and forfeit
items without custom fees
12) To prevent the implementation or execution of contracts for the operation of a
public utility
13) To restrain criminal prosecutions
14) Against extra-judicial foreclosure of mortgage on the allegation that the loan has
been paid or not delinquent unless the application is verified and supported by
evidence of payment
15) If it is alleged in the application that the interest in the loan is unconscionable, the
RTC cannot issue a TRO or writ of preliminary injunction unless the debtor pays
the mortgagee at least 12% interest per annum on the principal obligation as
stated in the application for foreclosure sale.
16) Enjoining the Bangko Sentral ng Pilipinas (BSP) from examining any institutions
subject to the examination by the BSP
17) Arbitration proceedings shall not be enjoined during the pendency of the petition
for judicial relief from the ruling of the arbitral tribunal
18) Except for the CA and SC, RTC cannot issue TRO or preliminary injunction against
any freeze order issued by the Anti-Money Laundering Council.
 If you want the RTC no to proceed with the trial of a case, you file for prohibition
and ask for a prayer of the issuance of a writ of preliminary injunction. But you go
to CA and not to another RTC because a court cannot issue injunction against a
co-equal court.
 If you want to run after the bond, the procedure is Section 20 of Rule 57 and you
file it in the trial court. You cannot file n independent or separate civil action to
recover damages arising from the bond except if the case is dismissed by the court
on the ground of lack of jurisdiction over the subject matter or if the one who is
praying for is a 3rd person who is not a party to the case wherein he may file a
separate action.
 There is an administrative circular that when the court issues a writ of preliminary
injunction on a case, the court is mandated to finish trial only within 60 days.
RULE 59
RECEIVERSHIP
 This can always be prayed for in any stage of the proceedings even after judgment
was already rendered by the court or even during trial. This is an ancillary remedy.
 Aside from filing of a verified motion, you can incorporate it in the complaint. But
to be sure, always make sure that the motion is verified.
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 Receiver - is a person appointed by the court to administer and preserve the
properties subject of proceedings. The receiver has three functions: 1)
administration; 2) preservation; and 3) disposal of the properties.
INSTANCES WHEN A RECEIVER MAY BE APPOINTED:
1) When it appears from the verified application, and such other proof as the court may
require, that the party applying for the appointment of a receiver has an interest in the
property or fund which is the subject of the action or proceeding, and that such property or
fund is in danger of being lost, removed, or materially injured unless a receiver be
appointed to administer and preserve it;
2) When it appears in an action by the mortgagee for the foreclosure of a mortgage 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, or that the parties have so
stipulated in the contract of mortgage;
3) After judgment, to preserve the property during the pendency of an appeal, or to dispose
of it according to the judgment, or to aid execution when the execution has been returned
unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;
4) Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property in
litigation.
TAKE NOTE: The common denominator in all the instances enumerated is that the
properties are in danger of being lost, materially injured, or dissipated. In which case, there
is a necessity of appointing a receiver for purposes of preserving the property.
 Even in properties in the possession of a mortgagor and the property is in danger
of being lost or materially injured, a receiver may be appointed in behalf of all the
parties in the action.
REQUIREMENTS IN THE APPOINTMENT OF A RECEIVER:
1) There must be a verified petition;
2) There must be a bond to be posted;
- One bond is for the application of the receiver and the amount is based as fixed by
the court.
3) There must be a hearing.
WHAT MUST THE RECEIVER DO BEFORE HE MAY COMMENCE WITH HIS DUTIES?
1) He must take an oath;
2) Once he is already appointed, he must post a bond.
- This is the 2nd bond under this Rule. This is also fixed by the court.
DUTIES AND POWERS OF THE RECEIVER:
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It is more on the acts of administration (Sec.6 of the Rule)
1) to bring and defend, in such capacity, actions in his own name;
2) to take and keep possession of the property in controversy;
3) to receive rents;
4) to collect debts due to himself as receiver or to the fund, property, estate, person, or
corporation of which he is the receiver;
5) to compound for and compromise the same; to make transfers; to pay outstanding
debts;
6) to divide the money and other property that shall remain among the persons legally
entitled to receive the same; and
7) generally to do such acts respecting the property as the court may authorize.
 A receiver cannot dispose of the property without consent and approval of the
court. He is always under the control and supervision of the court. If he acts
without approval of the court, he will be personally liable.
 There must always be consent and approval of the court before suing a receiver. If
there is no consent, the action against a receiver may be dismissed by a motion to
dismiss.
 As far as third persons are concerned, the receiver may compel the 3rd person in
possession of documents to submit the same. If the latter refuses, he may be held
in contempt.
 A receivership may be terminated if the: 1) other party posts a counter-bond; 2) if
the bond of the applicant is insufficient; 3) or if the bond of the receiver is
insufficient.
 If the court finds that there is no more need for the receivership, it may terminate
motu proprio or on motion. But the receiver is first required to submit an
accounting and report.
RULE 60
REPLEVIN
 Replevin is only an ancillary remedy. It can never become a main action under this
Rule because this rule only refers to an ancillary remedy. The main action is the
recovery of personal property. However, in one case, replevin may be a main
action.
REPLEVIN vs ATTACHMENT
1) Replevin cannot apply to properties that are in custodia legis unlike in attachment which
may apply to properties in custodia legis.
2) Replevin only covers personal properties which are capable of manual delivery.
Attachment covers all kinds of properties, even incorporeal properties.
 You can apply for the issuance of writ of replevin at the time of the
commencement of action or at any time before the filing of an answer.
REQUIREMENTS TO AVAIL OF REPLEVIN:
1) There must be an affidavit;
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DVOREF College of Law

- Replevin is usually incorporated already in the complaint. The affidavit must contain all the 1) the return of the property; or
requirements as set forth in Sec. 2 of this Rule. 2) If the return of the property is not possible, the payment of the value of the
Section 2. Affidavit and bond. — The applicant must show by his own affidavit or that of property subject of the writ of replevin.
some other person who personally knows the facts: Special Civil Actions
(a) That the applicant is the owner of the property claimed, particularly describing it, or is RULES 62 - 71
entitled to the possession thereof; 1) Interpleader – Rule 62
(b) That the property is wrongfully detained by the adverse party, alleging the cause of 2) Declaratory Relief and Similar Remedies – Rule 63
detention thereof according to the best of his knowledge, information, and belief; 3) Review of Judgments and Final Orders or Resolutions of the Commission on
(c) That the property has not been distrained or taken for a tax assessment or a fine Elections and the Commission on Audit – Rule 64
pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise 4) Certiorari, Prohibition and Mandamus - Rule 65
placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; 5) Quo Warranto - Rule 66
and 6) Expropriation – Rule 67
(d) The actual market value of the property. 7) Foreclosure of Real Estate Mortgage – Rule 68
- This is important because the bond is double the market value of the property. 8) Partition - Rule 69
2) There must be a bond. 9) Forcible Entry and Unlawful Detainer – Rule 70
- The affidavit of the bond must be submitted after the filing of the complaint. 10) Contempt – Rule 71

 After the court issues the writ, the Sheriff may already serve the same together ACTIONS THAT MAY BE FILED IN THE 1st LEVEL COURTS AND 2nd LEVEL COURTS:
with the complaint upon the defendant. To prevent the taking of the property by 1) Interpleader – as long as the amount falls within the jurisdiction of the court;
the Sheriff, within 5 day, the person to whom the writ is issued against, can post a 2) Partition – In one case, it was held that since partition involves title to, the jurisdiction is
redelivery bond which is double the actual market value of the property. based on the assessed value. This is not an action that is incapable of pecuniary estimation
Q: Would the posting of the redelivery bond automatically prevent the taking of the and thus may be filed in the 1st level court;
property? 3) Contempt
A: NO. It is still discretionary on the part of the court.
 However, you may question the bond for being insufficient or you may question SPECIAL CIVIL ACTIONS INITIATED BY FILING A PETITION:
the writ itself on the ground that is not valid because it did not comply with Sec. 2
of this Rule. 1) Declaratory relief and other similar remedies;
Q: Is it proper that after the Sheriff got the property form the defendant, he immediately 2) Review of adjudications of the COMELEC and COA;
turned it over to the plaintiff? 3) Certiorari, prohibition and mandamus;
A: NO. If no action is done by the defendant within 5 days from the date of the taking of 4) Quo warranto; and
the property, it is the only time when the Sheriff can deliver the property to the plaintiff. 5) Contempt
The Sheriff is only allowed to turn over the property after the lapse of the 5-day period.
Q: The plaintiff already has possession of the property and the court scheduled a pre-trial SPECIAL CIVIL ACTIONS INITIATED BY FILING A COMPLAINT:
conference. Plaintiff did not appear in the conduct of pre-trial. Because of his non- 1) Interpleader;
appearance, he was declared in default. Upon the dismissal of the case, the defendant filed 2) Expropriation;
a motion for the return of the property to him since the case was dismissed. The court 3) Foreclosure of real estate mortgage;
granted the motion and ordered the plaintiff to return the property. Is the court correct? 4) Partition; and
A: YES, the court is correct. The complaint was dismissed and therefore, there is no more 5) Forcible entry and unlawful detainer.
basis for the plaintiff to have a right over the property. It does not follow that because the
property is already in the possession of the property, it cannot proceed anymore with the RULE 62
case. Trial on the merits must still be ensured. INTERPLEADER
 The court, in deciding a case for recovery of personal property with a prayer for
issuance of writ of replevin, the judge will render judgment in the alternative  An interpleader may be filed if the following elements are present:
either:
Transcribed Notes by: Glaicee Joy T. Paner Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 31
DVOREF College of Law

1) If a party is in possession of a property or performance of an obligation whether DECLARATORY RELIEF

wholly or partially and that he has no interest whatsoever in the same;
2) There are two or more claimants who have the same interests over the property What are involved here?
or the performance of the obligation. 1) deeds;
Q: The Rule says that there must be similar interests. What will be the proper course of 2) contracts;
action if there is an action filed by a party interested over a property subject of an 3) wills;
interpleader and the interests of the defendants are separate interests over the same 4) ordinances;
property? 5) laws; or
A: Motion to dismiss may be filed. Rule 16 applies likewise applies to this Rule. The grounds 6) any other written instruments.
under Rule 16 are applicable here. However, take note of the additional ground of  The issue here is the validity of the written instrument. It presupposes that the
“impropriety” of the filing of the petition for interpleader. instrument has an ambiguity or some of the provisions in the instrument are
 The plaintiff has no interest whatsoever to the property or obligation subject of the ambiguous or doubtful.
interpleader. He may file this action to let the several claimants interplead among REQUISITES IN THE FILING OF DECLARATORY RELIEF:
themselves in court as to who is entitled upon the property or the performance of 1) The subject-matter is a deed, will, contract or other written instrument, statute,
the obligation. executive order or regulation, or ordinance;
TAKE NOTE: Summons is served upon all of the defendants. However, in the filing of the 2) The terms of said documents and the validity thereof are doubtful and require
answer, the defendant must serve the same upon the other defendants. This is because in judicial construction;
interpleader, the case is not between the plaintiff and the defendant, but it is among the 3) There must have been no breach of the documents in question otherwise an
defendants themselves. ordinary civil action is the remedy;
4) There must be an actual justiciable controversy or the "ripening seeds" of one
RULE 63 between persons whose interests are adverse;
DECLARATORY RELIEF AND SIMILAR REMEDIES - “Ripening seeds” means that there must be a threatened or imminent
 This is initiated by filing a petition. litigation that may arise.
SIMILAR REMEDIES INCLUDE (2nd par. of Section 1): 5) The issue must be ripe for judicial determination as, for example, where all
1) Quieting of title – removing the cloud over the title. In terms of jurisdiction, this is administrative remedies have been exhausted; and
dependent on the assessed value of the property in question; 6) Adequate relief is not available through other means or other forms of action or
2) Consolidation of ownership – This usually involves actions such as those involving deed proceedings.
of sale or pacto de retro sale (There is a need for a court order to register a title after the
sale.);  When you file this, there must be no breach yet by virtue of the instrument or
3) Action for reformation of an instrument. ordinance or law. If breach was committed even if the petition is already pending,
- This is different from annulment of a document because in reformation, the agreement is the action will be converted into an ordinary civil action wherein the parties may
valid from the beginning; there is only failure in the agreement to express the true intention be allowed to file the corresponding amendments to comply with the requirements
of the parties. In annulment, there is vitiated consent. insofar as ordinary civil action is concerned.
Q: Is a third party complaint allowed?
Q: What is the available defense to an action filed by the petitioner for consolidation of A: NO. But there can be a counterclaim.
ownership because the defendant was not able to redeem it within the period agreed upon? RULE 64
A: The defense that the sale is not a deed of sale with a right of repurchase or that what REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE
was entered into was not a pacto de retro sale but an equitable mortgage. COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT
 If the court is convinced, you are given 30 days to redeem the property again after  This Rule covers only COMELEC and Commission on Audit. Decisions of Civil
the finality of the decision. Service Commission are covered under Rule 43.
 Reformation of instrument is one of the exceptions to the principle of parole  You go to the Supreme Court via Rule 65 on certiorari but only within 30 days.
evidence – where once the instrument is reduced into writing, you are not allowed This 30-day period may be interrupted by the filing of a motion for new trial or
to prove other evidence other than those indicated therein. motion for reconsideration.
Q: Does the Fresh Period Rule apply in this Rule?
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
A: NO. The ruling in Pates vs. COMELEC held that you are only given the remaining
period but not less than 5 days. This is the only exception in cases involving judicial bodies
where the fresh period rule does not apply.
 The filing of the certiorari will not stay the decision unless you pray for the
issuance of a temporary restraining order or writ of preliminary injunction.
RULE 65
CERTIORARI, PROHIBITION AND MANDAMUS
Q: You filed a motion to dismiss on the ground of improper venue and the court denied the
motion. You filed a motion for reconsideration but it was also denied. You really feel that
there is a ground of improper venue, what will you do?
A: File a petition for prohibition so the court can be prevented from further proceeding with
the case.
DISTINCTIONS AMONG THE THREE:
 The purpose of certiorari is to correct an act committed by the respondent. In
prohibition, the purpose is to prevent the commission of an act. Mandamus is
to compel the performance of an act.
 In certiorari, this includes discretionary acts; in prohibition, it involves
discretionary and ministerial acts; in mandamus, it involves only ministerial acts.
 In prohibition and mandamus, it may refer also to legislative and executive
functions; in certiorari, it may refer to judicial and quasi-judicial bodies. However,
the courts may already exercise its power of judicial review even against executive
and legislative acts.
 Under this rule, the public respondent is included. If it is against a court, you also
include the judge. However, the court will not be required submit its comment or
appear unless specifically ordered to do so.
 The period for filing is within 60 days from receipt of the decision. The Fresh
Period Rule applies in this Rule.
 The petition must be submitted in 18 copies. After the court finds the petition
sufficient in form and substance, the respondent may be ordered to file his
comment in 18 copies.
Ministerial – The court or office does not have any choice but to perform such act because
the same does not require the exercise of judgment and discretion.
TAKE NOTE: The common element among the three remedies under this Rule is that there
must be no other plain, speedy, adequate or any available remedy.
CERTIORARI
 Certiorari is also called “pre-emptory writ.”
 There must also be a prior motion for reconsideration filed before you can avail of
certiorari under this Rule in order to give the court or public respondent a chance
to correct its mistakes or errors.
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Requisites:
1) There must be grave abuse of discretion amounting to lack or excess of jurisdiction
on the acts of any tribunal, board or officer exercising judicial or quasi-judicial
functions;
2) There must be no appeal, or any other plain, speedy, and adequate remedy in the
ordinary course of law;
3) The appeal should not be lost thru the fault of the petitioner.
EXCEPTIONS TO FILING A MOTION FOR RECONSIDERATION BEFORE THE
PETITION FOR CERTIORARI
1) Where the order is a patent nullity;
2) Where the questions raised in the certiorari proceeding have been duly raised and
passed upon by the lower court or are the same as those raised and passed upon
in the lower court;
3) Where there is an urgent necessity for the resolution of the question and any
further delay would prejudice the interests of the Government or of the petitioner;
4) Where, under the circumstances, a motion for reconsideration would be useless, as
where the court had already indicated that it would deny any motion for
reconsideration of its questioned order;
5) Where petitioner was deprived of due process and there is extreme urgency for
relief;
6) Where, in a criminal case, relief from an order of arrest is urgent and the granting
of such relief by the trial court is improbable;
7) Where the proceedings in the lower court are a nullity for lack of due process;
8) Where the proceeding was ex parte or in which the petitioner had no opportunity
to object; and
9) Where the issue raised is one purely of law or where public interest is involved.
 Certiorari is always based on grave abuse of discretion amounting to lack or excess
of jurisdiction.
 Being an extraordinary remedy, it will not toll or prevent the usual course of
action. If there is a certiorari filed against an interlocutory order of the court, the
court has to proceed with the hearing within 10 days from the date of the filing of
the petition for certiorari if there is no writ of preliminary injunction issued against
the court. You can only prevent the public respondent from proceeding with the
case by filing for the issuance of a writ of preliminary injunction or temporary
restraining order.
 This is based on errors of jurisdiction. Errors of judgment may be corrected by
appeal. However, even if appeal is the appropriate remedy, the court may still
allow certiorari.
INSTANCES WHERE SC ALLOWED THE FILING OF CERTIORARI INSTEAD OF
APPEAL
1) where the appeal does not constitute a speedy and adequate remedy;
2) where the orders were also issued either in excess of or without jurisdiction;
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
3) for certain special considerations, as public welfare or public policy;
4) where, in criminal actions, the court rejects rebuttal evidence for the prosecution as, in
case of acquittal, there could be no remedy;
5) where the order is a patent nullity;
6) where the decision in the certiorari case will avoid future litigations.
 Certiorari is under concurrent jurisdiction of RTC, CA, and SC. However, you still
follow the principle of hierarchy of courts. In one case, it was ruled that due to
consideration of public interest and public policy because the issue of the case is of
paramount interest to the nation, the principle of hierarchy of courts may be
dispensed with and certiorari can be filed directly with the SC.
PROHIBITION
Requisites:
1) There must be grave abuse of discretion amounting to lack or excess of jurisdiction
on the acts of any tribunal, board or officer exercising judicial or quasi-judicial
functions.
2) There must be no appeal, or any other plain, speedy, and adequate remedy in the
ordinary course of law.
MANDAMUS
Requisites:
1) When any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled
2) There must be no other plain, speedy, and adequate remedy in the ordinary
course of law.
 Mandamus is only proper if the performance of an act is ministerial in nature.
RULE 66
QUO WARRANTO
 This presupposes that the appointment was not valid from the beginning.
 The prescriptive period is 1 year from the cause of the ouster. This is a remedy to
try disputes to an office, whether appointive or elective. If there is no dispute or
question on who should be in the office but someone unlawfully usurps the
position, the remedy is mandamus.
 Quo warranto covers appointive and elective offices.
 Section 1, par. 3 of the rule covers de facto corporations. A de facto corporation is
one that exists even if it failed to comply with certain requirements as long as it is
not a mandatory requirement. If the corporation did not comply with an essential
element, it is null and void corporation. You cannot question a de facto corporation
Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 33
as an incident to a main action. you can only question it by filing a petition for quo
warranto.
GR: It is commenced by the Office of the Solicitor General or by the Public Prosecutor if
ordered by the President.
Exception: Private persons are allowed to file a petition for quo warranto under Section 5,
especially in appointive positions where there are usually private persons who file the same.
 Ex relaciones – This principle provides that the Sol. Gen. or Public Prosecutor
may file the petition upon the request or relation of another person. However,
there is the requirement that the person is required to post a bond or deposit as
an indemnity.
DIFFERENCES BETWEEN QUO WARRANTO IN ELECTIVE OFFICE AND QUO
WARRANTO IN APPOINTIVE OFFICE:
1) In appointive position, the issue is validity of the position; in elective position, the
issue is the eligibility of the officer;
2) In the period of filing: in the appointive office, it follows Rule 66; in elective office
under the OEC, it follows 10 day.
3) In appointive office, the petitioner will not assume position if he won; in elective
office, the petitioner will occupy the position as long as he gets plurality of votes
QUO WARRANTO UNDER RULE 66 vs. QUO WARRANTO UNDER OMNIBUS
ELECTION CODE (OEC):
1) Period – in OEC, the quo warranto shall be filed within 10 days from proclamation; in
Rule 66, it shall be filed within 1 year from ouster.
2) Basis – Quo warranto under OEC is based on the irregularity committed in the conduct
of the election; Quo warranto under Rule 66 is based on the eligibility of the petitioner.
RULE 67
EXPROPRIATION
 Multiple appeals are allowed in the following:
1) Expropriation;
2) Foreclosure of real estate mortgage;
3) Partition of real properties
 In multiple appeals, the period is 15 days to appeal and record on appeal is also
submitted together with the notice of appeal.
 Expropriation under this Rule applies to expropriation of the State through the
National Government. If it is the local government unit which is expropriating, the
law governing the same is the Local Government Code.
Expropriation by LGUs:
 The Chief Executive must authorize the expropriation by an ordinance not just a
resolution.
 Before the complaint for expropriation is filed, there must be an offer to be given
by the LGU to the landowner concerned. If the landowner refuses the offer, the
LGU may now apply for expropriation.
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 If the LGU wants to enter possession immediately upon filing of the complaint, the
LGU is only required to pay 15% of the assessed value.
Expropriation by National Government:
 When the national government files the complaint for expropriation, the complaint
must include the right and the purpose and those who are supposed to be
included as provided for under Section 1 of the Rule (all persons owning or
claiming to own, or occupying, any part thereof or interest therein).
 When a National Government files for expropriation, a prayer to enter the property
immediately upon filing of the complaint is included. There must be: 1) notice to
the defendants; and 2) the national government must pay 100% of the assessed
value either in cash or deposited in any government depository bank unless the
court allows certificate of deposit. Once these are complied with, in Biglang Awa
vs. Bacalla case, it was held that it becomes ministerial on the part of the court
to issue the writ of possession.
TWO PARTS OF EXPROPRIATION/ORDERS THAT ARE APPEALABLE:
1) The court issues the order of expropriation;
2) The court determines just compensation.
 The complaint for expropriation must also identify and contain the description of
the property, including its metes and bounds.
 Upon service of the summons, if the defendant does not object to the complaint,
he will just file a manifestation to that effect. If he objects, he will have to file his
answer within the 15-day period for filing a responsive pleading.
 After the court determines that there is really a right and purpose, the court will
issue an order of expropriation which is appealable.
 Even if the order of expropriation was appealed by the defendants, it will not
prevent the court from further proceeding with the 2nd stage of expropriation
which is determination of the payment of just compensation. Determination of just
compensation is a judicial prerogative as ruled in EPZA vs. Dulay.
 Just compensation is based on the value of the property at the time of taking or
at the time of the filing of the complaint plus consequential benefits less
consequential losses.
 The court shall appoint not more than 3 commissioners who have the duty to
determine the just compensation. They may conduct a hearing, require the parties
to appear before them, or require submission documents to guide them in
determining just compensation.
 The commissioners are required to submit a report within 60 days and copy must
be furnished to the parties who are given 10 days to submit comments on the
report.
 The court may admit the report, admit some part and deny some part or recommit
the report to the commissioners again if the court is not contented with the same.
Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 34
TAKE NOTE: Even if the defendants did not file their answer and they are declared in
default by the court, they are still allowed to participate in the 2 nd part of the proceeding
which is the determination of just compensation.
 The purpose of the 15% deposit in local expropriation and 100% deposit in
national government is to serve as an advance payment if it turns out that you
really won in the expropriation up to appeal. If the decision is reversed, it will also
answer for damages on the occasion of the loss suffered by the defendant.
 In cases where the order of the court is reversed, corresponding restoration must
be made to return the property to the defendant including payment for damages.
 In cases where the applicant did not ask for immediate entry, entrance to the
property can only be made until after the order for expropriation becomes final
and executory.
Q: The order for expropriation became final and the just compensation was already
determined. The plaintiff failed to pay the just compensation. Can the defendant demand
from the court that the property be returned to him?
A: NO. The recourse only is that given to an unpaid seller such as a claim or an action for
payment of the just compensation.
 There can also be expropriation of personal property. If you want to take
immediate possession of the property, there can be expropriation upon payment
which may be determined by the court.
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
ACT No. 3135:
 This governs extrajudicial foreclosure of real estate mortgage.
 It should be alleged in the real estate mortgage that in case of non-payment,
extrajudicial foreclosure under Act 3135 may be resorted to. If your real estate
mortgage does not include the condition that you cannot resort to extra-judicial
foreclosure of mortgage in case of non-payment, you will have to resort to judicial
foreclosure mortgage under Rule 68.
Q: Can an unregistered real estate mortgage be foreclosed?
A: YES. Registration is not necessary for validity. It is only to bind 3rd persons and serve as
a notice to the whole world.
 Section 2 of this Rule is the equity of redemption principle. It provides that
payment to the court by the judgment obligee must be within a period of not less
than ninety (90) days nor more than one hundred twenty (120) days from the
entry of judgment, and that in default of such payment the property shall be sold
at public auction to satisfy the judgment.
 In judicial foreclosure of mortgage, there is no legal redemption. There is only this
equity of redemption which can be exercised within not less than 90 days nor more
than 120 days from the time of the judgment. However, this may be extended
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
provided that the redemption was made before the court issues an order
confirming the sale.
 In real estate mortgage involving banks or quasi-banking institutions, the law gives
both remedies: equity of redemption and legal redemption. Legal redemption is 1
year from the time of the registration of the certificate of sale. In extra-judicial
foreclosure under Act. No. 3135, there is also legal redemption with the same 1
year period.
 The court is mandated that in its decision, it is stated that the mortgagor has a
chance to exercise the equity of redemption. Where no redemption is made, the
court may now order ex parte the sale of the property. After the sale is made to
the highest bidder, the next step is confirmation of the sale where there must be a
hearing, giving the defendant an opportunity to question the sale conducted.
THE FOLLOWING ORDERS CAN BE APPEALED UNDER THIS RULE:
1) The decision of the court granting foreclosure
2) The order confirming the sale
3) The order for the payment of the deficiency judgment
Q: The property was already sold to the highest bidder and it turned out that the proceeds
of the sale are not enough to pay off the liability of the mortgagor to the mortgagee. Can
the mortgagee recover from the mortgagor any deficiency judgment?
A: Generally, YES. However, as an exception, there can be no recovery of deficiency
judgment if it is a 3rd person who allowed the mortgagor to use his property as security for
a loan.
 There can be recovery of property even in extrajudicial foreclosure. It is only in
Recto Law, in cases of chattel mortgage where you opted for this remedy, further
recovery of deficiency is not allowed.
 Ownership is not yet transferred to the highest bidder not until the 1 year
redemption period has lapsed and no redemption was made wherein the sheriff
will already issue a final certificate of sale, which the same should be registered in
the ROD where the property is located. A new title will then be issued in favour of
the new owner, cancelling the old title.
Q: Can a real estate mortgage include several properties situated in different provinces? Or
is it required that a real estate mortgage only covers one property?
A: YES. There is no prohibition. If it covers different properties situated in different
provinces, the complaint will be filed in any of the provinces where the properties are
located. This is the same in expropriation. However, you may still file separate actions for
foreclosure or expropriation in any court of the provinces where the properties are located.
 Also include in your complaint second mortgagee or junior encumbrances.
 If there are conditions in the real estate mortgage and any of the same conditions
are violated, the property may be foreclosed. The mortgagee may file for the
foreclosure of the property since it is not only non-payment that is a valid ground
for foreclosure.
Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 35
 Foreclose of real estate mortgage can be within the jurisdiction also of 1st level
court depending on the assessed value of the property to be foreclosed.
 Pactum commisorium – In case of non-payment, there is automatic transfer of
the property to the mortgagee.
 Absent price – This is a stipulation that if the property is sold at a public auction,
it must only be sold at a stipulated price. This is not valid because this runs
counter with the requirement that the property will be sold to the highest bidder.
 Blanket mortgage clause – This is a provision in the mortgage which allows
even future indebtedness to be covered. This is valid as long as it is specifically
alleged in the real estate mortgage.
RULE 69
PARTITION
 The jurisdiction on which court to file depends on the assessed value of the
property.
 Partition may also include personal property. This is an action where a co-owned
property is sought to be separated or segregated.
ELEMENTS TO PROVE IN PARTITION:
1) That the claimant must have a rightful interest in the property in question;
2) That the property is co-owned.
 In a complaint for partition, the court will first determine whether there is co-
ownership over the property. The 2nd phase is the partition of the property.
 In some instances, partition cannot be allowed. An example is when a property is
donated and there is a provision in the deed of donation that the property cannot
be partitioned among the donees.
 All the co-owners must be impleaded. If not all of the defendants or persons who
have interest over the property are impleaded as party defendants, the case may
be dismissed for failure to implead indispensable parties.
 If the parties can agree among themselves to partition the real property, they can
do so. It is only when they cannot agree where the appointment of not more than
3 commissioners will be resorted to by the court.
 The commissioners duly appointed by the court will have to take an oath and may
conduct hearings and submit a report.
COMMISSIONER MAY ORDER THE FOLLOWING ALTERNATIVES:
1) Assignment of the property – The propertywill be assigned to one of the parties and
such party will be obligated to pay the corresponding value to the other parties; or
2) Have the property sold in a public auction – The parties will divide the proceeds of
the sale.
ORDERS THAT CAN BE APPEALED UNDER THIS RULE:
1) The decision of the court granting the partition can be appealed in 30 days;
2) The order for the confirmation of the actual partition either made by the parties or by the
commissioners;
3) Order for the accounting of the fruits and income of the property
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 You are not allowed to file a separate action under this Rule because it will be
splitting a cause of action. What you must do is to incorporate in your prayer the
accounting of the fruits and income of the property.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
 In forcible entry (FE) and unlawful detainer (UD) cases, the issue is mere physical
possession. The plaintiff is not precluded from filing cases of injunction, recovery
of ownership and possession, action reivindicatoria while the case is still pending.
 The complaint for FE case must include an allegation that the plaintiff was in prior
physical possession of the property. This is not the same in UD cases.
 Preliminary injunction or preliminary mandatory injunction may still be issued in
these cases because as an exception the general rule, such cases are continuing in
nature and may still be subject for issuance of injunction.
 The jurisdiction is in the 1st level court and governed by the Rules on Summary
Procedure, regardless of the assessed value of the property.
 Motion to render judgment in default is not allowed because there can be no
declaration in default under the Rules on Summary Procedure.
 Once the case is appealed to the RTC, it is already covered by the regular rules.
While it is on appeal in the RTC, the decision may be stayed as long as the
requisites are present. If one of the requisites is not complied with, there can
execution pending appeal.
REQUISITES TO STAY THE JUDGMENT:
1) The appeal was perfected;
2) Post a supersedeas bond; and
3) Pay the monthly rent
Distinctions between forcible entry (FE) and unlawful detainer (UD):
1) FE- The possession is illegal from the beginning and was obtained by means of
fraud, intimidation, stealth, threat, and strategy;
UD- The possession was lawful but it became illegal when the lessor demanded
the lessee to vacate the premises and in spite receipt of the demand, the latter
refuses to vacate.
2) FE- Prior physical possession of the plaintiff is required;
UD- Prior physical possession is not required.
 In forcible entry, there must be an allegation in the complaint that the plaintiff was
in prior physical possession because it will affect the cause of action.
3) FE- The 1 year prescriptive period will be counted from the time of actual entry by
the defendant. In stealth, it is from the discovery of the entry where the period is
commenced;
UD- the 1 year prescriptive period from the receipt of the last demand.
 If the last demand is only a reminder of a previous demand already set by the
plaintiff, the 1 year is counted from the demand and not from when the reminder
was made.
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FORCIBLE ENTRY
 The entry must be effected by means of force, intimidation, stealth, threat, or
strategy.
 The prescriptive period is 1 year which is commenced, as a general rule, from the
actual entry. However, if stealth is used, the 1 year period is counted from the
date of the discovery of stealth.
UNLAWFUL DETAINER
 The demand is not only demand to vacate but also includes demand to pay or to
comply with the conditions of the lease.
EXCEPTIONS WHERE DEMAND IS NOT NEEDED:
1) where the purpose of the action is to terminate the lease by reason of the expiry of its
term and is not for failure to pay rentals or comply with the terms of the lease contract;
2) when the purpose of the suit is not for ejectment but for the enforcement of the terms of
the contract;
3) when the defendant is not a tenant but a mere intruder;
4) when the parties agreed that demand is not needed.
 The demand to vacate and to pay depends on whether it is a land or a building. If
it is a land – 15 days from receipt; if a building – 5 days.
 Demand must always be in writing. Oral demand is allowed provided that the
following requisites are present:
1) You allege in the complaint that you sent a demand to vacate and to pay but
the demand was only oral;
2) There must be at least 2 witnesses who are not related to the plaintiff.
 If the entry is by means of tolerance, the tolerance must be from the very
beginning. If the entry is by any of the FISTS, the case is not unlawful detainer but
forcible entry.
 The filing of a petition for relief will not stay the judgment. What can only be
stayed in compliance with the 3 requisites for staying the judgment will only be the
decision of the MTC to the RTC. Once the losing party goes to CA via petition for
review under Rule 42, the decision may already be a subject for execution. The
only way to prevent execution is to ask for a writ of preliminary injunction.
 If the defendant raises the issue of ownership or the issue of tenancy, it will not
divest the court of its jurisdiction over the case. The court may still determine the
issue of ownership only for the purpose of resolving the issue of possession. What
determine the jurisdiction are the allegations in the complaint and not the
allegations in the answer.
RULE 71
CONTEMPT
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
 Direct contempt is a misbehavior committed in the presence or so near a judge
so as to obstruct the administration of justice. If committed not in the presence of
or so near a judge, it is indirect contempt.
 Civil contempt is contempt for failure to obey an order of a court. Criminal
contempt is contempt which affects the dignity of the court.
ACTS THE CONSTITUTE INDIRECT CONTEMPT (Sec. 4):
(a) Misbehavior of an officer of a court in the performance of his official duties or in his
official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court,
including the act of a person who, after being dispossessed or ejected from any real
property by the judgment or process of any court of competent jurisdiction, enters or
attempts or induces another to enter into or upon such real property, for the purpose of
executing acts of ownership or possession, or in any manner disturbs the possession given
to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a court
not constituting direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without
authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by
virtue of an order or process of a court held by him.
Q: If a pleading submitted to the court contains contemptuous language, will that always
mean direct contempt? Or is it indirect contempt?
A: It is direct if it is submitted to the court where the case is pending. If it is submitted to
another court, it is indirect contempt.
Q: You are declared by the court in indirect contempt. Is it appealable?
A: NO. The remedy is certiorari or prohibition. The best remedy is prohibition because you
want to prevent the execution of the order. While the prohibition is pending, the order or
the decision declaring you in direct contempt can only be suspended if you post a bond in
an amount fixed by the court.
INDIRECT CONTEMPT MAY BE COMMENCED:
1) by the court motu proprio; or
2) by filing a verified petition (any person can do this)
- The petition must comply with the requirements for the filing of an initiatory pleading.
 Indirect contempt committed against the 1st level court, you can file it in the same
1st level court or in the RTC where the MTC is sitting. The filing in the 1 st level
court is appealable. The decision of the RTC is appealable to the CA within 15 days
from receipt of the decision or of the denial of a motion for reconsideration.
 Contempt proceedings is in the nature of criminal proceedings.
Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 37
 In contempt proceedings, it must be exercised by the court in the preservative and
not in the vindictive principle. The court is guided by the principle of the “clear and
present danger rule” in citing a person either for direct or indirect contempt.
 The penalty depends whether it is in the 1st level court or RTC or whether it is
direct or indirect contempt.
 If it is contempt committed against a quasi-judicial agency, it must be filed in the
RTC where the agency is. Unlike the courts where the power to cite a person in
contempt is inherent, a quasi-judicial agency can only exercise such power if the
law which created the agency grants the same the power to cite a person in
contempt.
Q: What about in the legislative? They also have the power to cite a person in contempt. Is
there a limitation in the exercise of the legislature to cite a person in contempt?
A: YES. It must only be exercised in connection with investigations conducted by the
Congress done in aid of legislation.
RULES OF PROCEDURE IN ENVIRONMENTAL CASES
1) Writ of Kalikasan
2) Writ of Continuing Mandamus
 Writ of continuing mandamus can be issued by RTC, CA, and SC. Writ of Kalikasan
can only be issued by CA or SC.
 In writ of Kalikasan, it involves damage to an environment of a magnitude and it
must involve 2 or more cities or provinces. This must be filed in CA or SC in order
to avoid problems on venue.
 The legal principle as basis for the issuance of these actions is “for a healthful and
balanced ecology.”
 What should be filed by the defendant is not an answer but a return to be filed
within 10 days from receipt of summons. This is particularly for Writ of Kalikasan.
 If no return, there can be no declaration of default. The court is still mandated to
continue with the case.
 There is also no requirement of the filing of docket fees.
Q: Can a fish be considered a person?
A: YES. This is to protect the ocean.
 There are also provisional remedies under these Rules. They are called Temporary
Environmental Protection Order (TEPO) and Environmental Protection Order (EPO).
TEPO becomes EPO after the determination of the case.
CASES FOR CIVIL PROCEDURE
1) UY v. COURT OF APPEALS, G.R. NO. 95550, 23 NOVEMBER 1992
Held: A writ of preliminary attachment can be issued ex parte even after the perfection of
the appeal.
2) SPS. OLIB v. PASTORAL, G.R. NO. 81120, 20 AUGUST 1990
Held: Attachment is an auxiliary remedy. It cannot have an independent existence apart
from the main suit or claim instituted by the plaintiff against the defendat. Consequently,
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
where the main action is appeal, the attachment, being an incident to that action is also
considered appeal and therefore is removed from the jurisdiction of the trial court.
Furthermore, it was ruled by the SC that the non-payment of premiums on the attachment
bond does not necessarily extinguish or terminate the effectivity of the bond in the absence
of an express stipulation in the contract making such non-payment of the premium a cause
for the termination of the undertaking.
TAKE NOTE:
GR: In preliminary injunction, under RA No. 8975, the court cannot issue a writ of
preliminary injunction or writ of mandatory injunction, a court cannot issue the same on
government infrastructure projects, only the SC can issue such writ.
Exception is when the matter is of extreme urgency involving constitutional issue such
that unless a TRO is issued, grave and irreparable injury will arise.
3) AM. 07-7-12 SC, AMENDMENTS TO RULES 41, 45, 58, AND 65 OF THE RULES
OF COURT, 12 DECEMBER 2007
Amendment to preliminary injunction under Rule 58: Before the amendment, the
language used with respect to the effectivity of a TRO issued by the lower court is 20 days
or in the CA, 60 days from notice to the party or persons sought to be enjoined. Now, the
20 day period or the 60 day period commences from the date of service of the TRO to the
party or the persons sought to be enjoined.
 There is also an amendment to Sec. 5 of Rule 58: The trial court, the CA, the
Sandiganbayan or the CTA that issued a writ of preliminary injunction against a
lower court, board, officer, or quasi-judicial agency, shall decide the main case
within 6 months from the issuance of the writ.
Amendment to Rule 65: In the absence of a TRO, the public respondent judge is
mandated to proceed with the hearing of the principal case within 10 days from the filing of
the petition for certiorari with the higher court. Otherwise, the judge may be held
administratively liable.
 In case where the certiorari, prohibition, or mandamus is dismissed, if the court
finds that the same is patently without merit, or filed manifestly for delay, or the
questions raised therein are unsubstantial to require consideration, the lawyer may
be sanctioned. The court may award to the respondent triple the cost of the
damages incurred. The counsel and the petitioner will be solidarily liable.
Furthermore, the counsel may be subjected to administrative sanctions.
4) FEDERATION OF LAND REFORM FARMERS OF THE PHILIPPINES v. COURT OF
APPEALS, G.R. NO. 88384, 14 JULY 1995
Held: Ordinarily the effectivity of a TRO is not extendible and the courts have no discretion
to extend the same considering the mandatory tenor of the Rule. However, there is no
reason to prevent the court from extending the 20-day period if the parties asked for the
extension of the same or for the maintenance of the status quo. This is done by means of
filing a motion for the maintenance of the status quo ante-order. By issuing an order for the
maintenance of the status quo, the trial court is merely exercising its inherent power under
Remedial Law Review 1 | Judge Sabarre | S.Y. 2018 - 2019 38
Sec. 5 of Rule 135 of the Rules of Court to enforce order in proceeding before it in the
absence of any showing that it has greatly abused its discretion in so doing.
5) FERNANDEZ v. INTERNATIONAL CORP. BANK, GR. NO. 131283, 7 OCTOBER
1999
Held:
The SC stated the following rules:
1) Writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction
issued by the RTC may be enforced in any part of the region;
2) All other processes whether issued by an RTC or 1 st level court may be served anywhere
in the Philippines even without the certification by the judge of the RTC. This also includes a
writ of replevin.
6) NEYPES v. COURT OF APPEALS, G.R. NO. 141524 14 SEPTEMBER 2005
Held: The Fresh Period Rule shall apply to Rules 40 (Appeals from MTC to RTC), 42
(Petitions for Review from RTC to CA), 43 (Appeals from quasi-judicial agencies to CA), and
45 (Petition for certiorari to the SC). The period is counted from receipt of the judgment or
the order denying a motion for reconsideration or motion for new trial.
A.M. No. 07-7-12-SC
AMENDMENTS TO RULES 41, 45, 58 AND 65 OF THE RULES OF COURT
RULE 41
SECTION 1. Subject of appeal. – An appeal may be taken from a judgment or final order
that completely disposes of the case, or of a particular matter therein when declared by
these Rules to be appealable.
No appeal may be taken from:
a. An order denying a petition for relief or any similar motion seeking relief
from judgment;
b. An interlocutory order;
c. An order disallowing or dismissing an appeal;
d. An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or duress, or
any other ground vitiating consent;
e. An order of execution;
f. A judgment or final order for or against one or more of several parties or
in separate claims, counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless the court allows an
appeal therefrom; and
g. An order dismissing an action without prejudice.
In any of the foregoing circumstances, the aggrieved party may file an appropriate special
civil action as provided in Rule 65.
RULE 45
SECTION 1. Filing of petition with Supreme Court. – A party desiring to appeal by certiorari
from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law,
may file with the Supreme Court a verified petition for review on certiorari. The petition may
Transcribed Notes by: Glaicee Joy T. Paner
DVOREF College of Law
include an application for a writ of preliminary injunction or other provisional remedies and
shall raise only questions of law, which must be distinctly set forth. The petitioner may seek
the same provisional remedies by verified motion filed in the same action or proceeding at
any time during its pendency.
RULE 58
SEC. 5. Preliminary injunction not granted without notice; exception. – No preliminary
injunction shall be granted without hearing and prior notice to the party or persons sought
to be enjoined. If it shall appear from facts shown by affidavits or by the verified application
that great or irreparable injury would result to the applicant before the matter can be heard
on notice, the court to which the application for preliminary injunction was made, may
issue ex parte a temporary restraining order to be effective only for a period of twenty (20)
days from service on the party or person sought to be enjoined, except as herein provided.
Within the twenty-day period, the court must order said party or person to show cause at a
specified time and place, why the injunction should not be granted. The court shall also
determine, within the same period, whether or not the preliminary injunction shall be
granted, and accordingly issue the corresponding order.
However, subject to the provisions of the preceding sections, if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable injury, the executive
judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex
parte a temporary restraining order effective for only seventy-two (72) hours from issuance,
but shall immediately comply with the provisions of the next preceding section as to service
of summons and the documents to be served therewith. Thereafter, within the aforesaid
seventy-two (72) hours, the judge before whom the case is pending shall conduct a
summary hearing to determine whether the temporary restraining order shall be extended
until the application for preliminary injunction can be heard. In no case shall the total period
of effectivity of the temporary restraining order exceed twenty (20) days, including the
original seventy-two hours provided herein.
In the event that the application for preliminary injunction is denied or not resolved within
the said period, the temporary restraining order is deemed automatically vacated. The
effectivity of a temporary restraining order is not extendible without need of any judicial
declaration to that effect, and no court shall have authority to extend or renew the same on
the same ground for which it was issued.
However, if issued by the Court of Appeals or a member thereof, the temporary restraining
order shall be effective for sixty (60) days from service on the party or person sought to be
enjoined. A restraining order issued by the Supreme Court or a member thereof shall be
effective until further orders.
The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that
issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial
agency shall decide the main case or petition within six (6) months from the issuance of the
writ.
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Sec. 4. When and where to file the petition. – The petition shall be filed not later than sixty
(60) days from notice of the judgment, order or resolution. In case a motion for
reconsideration or new trial is timely filed, whether such motion is required or not, the
petition shall be filed not later than sixty (60) days counted from the notice of the denial of
the motion.
If the petition relates to an act or an omission of a municipal trial court or of a corporation,
a board, an officer or a person, it shall be filed with the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed
with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of
the court’s appellate jurisdiction. If the petition involves an act or an omission of a quasi-
judicial agency, unless otherwise provided by law or these rules, the petition shall be filed
with and be cognizable only by the Court of Appeals.
In election cases involving an act or an omission of a municipal or a regional trial court, the
petition shall be filed exclusively with the Commission on Elections, in aid of its appellate
jurisdiction.
Sec. 7. Expediting proceedings; injunctive relief. – The court in which the petition is filed
may issue orders expediting the proceedings, and it may also grant a temporary restraining
order or a writ of preliminary injunction for the preservation of the rights of the parties
pending such proceedings. The petition shall not interrupt the course of the principal case,
unless a temporary restraining order or a writ of preliminary injunction has been issued,
enjoining the public respondent from further proceeding with the case.
The public respondent shall proceed with the principal case within ten (10) days from the
filing of a petition for certiorari with a higher court or tribunal, absent a temporary
restraining order or a preliminary injunction, or upon its expiration. Failure of the public
respondent to proceed with the principal case may be a ground for an administrative
charge.
Sec. 8. Proceedings after comment is filed. – After the comment or other pleadings
required by the court are filed, or the time for the filing thereof has expired, the court may
hear the case or require the parties to submit memoranda. If, after such hearing or filing of
memoranda or upon the expiration of the period for filing, the court finds that the
allegations of the petition are true, it shall render judgment for such relief to which the
petitioner is entitled.
However, the court may dismiss the petition if it finds the same patently without merit or
prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to
require consideration. In such event, the court may award in favor of the respondent treble
costs solidarily against the petitioner and counsel, in addition to subjecting counsel to
administrative sanctions under Rules 139 and 139-B of the Rules of Court.
The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions
or measures on erring lawyers for patently dilatory and unmeritorious petitions
for certiorari.