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4.1. Nature of appeal as a remedy

- guard against judgments of unskilled and unfair judges
- prevention as much as correction of mistakes
- not a right but a mere privilege, thus may be lost

(1) Dacuital v LM Engineering Corporation 629 S 702 - BISNAR

(1) L.M. Camus Engineering Corporation (LMCEC) was engaged in the construction, engineering and
air-conditioning business.
(2) Petitioners were hired by LMCEC as welder, tinsmith, pipefitter and mechanical employees.
a) They were later dismissed.
(3) Petitioners filed and illegal dismissal case against LMCEC and claimed backwages.
(4) The Labor Arbiter ruled that they were illegally dismissed but that they were not entitled to backwages.
a) NLRC modified granting them limited backwages.
(5) CA reversed and ruled that dismissal was valid.
(6) Hence, the petition.
a) LMCEC is arguing that the decision of the LA had attained finality, except as to Palad, because of their
failure to appeal.
i) That the Memorandum on Appeal filed with the NLRC was verified only by Palad without
stating therein that he did it in representation of the other petitioners. In view of the finality of
the NLRC decision, the instant petition should not prosper.

Issue: Whether or not Petitioners failed to appeal?


In Pacquing v. Coca-Cola Philippines, Inc, it was provided:
As to the defective verification in the appeal memorandum before the NLRC, the same liberality applies. After
all, the requirement regarding verification of a pleading is formal, not jurisdictional. Such requirement is simply a
condition affecting the form of pleading, the non-compliance of which does not necessarily render the pleading
fatally defective. Verification is simply intended to secure an assurance that the allegations in the pleading are
true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed
in good faith. The court or tribunal may order the correction of the pleading if verification is lacking or act on the
pleading although it is not verified, if the attending circumstances are such that strict compliance with the rules
may be dispensed with in order that the ends of justice may thereby be served.
Moreover, no less than the Labor Code directs labor officials to use reasonable means to ascertain the facts
speedily and objectively, with little regard to technicalities or formalities; while Section 10, Rule VII of the New
Rules of Procedure of the NLRC provides that technical rules are not binding. Indeed, the application of
technical rules of procedure may be relaxed in labor cases to serve the demand of substantial justice. Thus, the
execution of the verification in the appeal memorandum by only two complainants in behalf of the other
complainants also constitute substantial compliance.
Clearly, the NLRC properly took cognizance of the appeal of all the named complainants even though it was signed by
only one of them.
While the right to appeal is a statutory and not a natural right, it is nonetheless an essential part of our judicial system.
Courts are, therefore, advised to proceed with caution, so as not to deprive a party of the right to appeal.
Litigants should have the amplest opportunity for the proper and just disposition of their causefree, as much as
possible, from the constraints of procedural technicalities.
Thus, contrary to LMCECs claim, the decision had not attained finality even as to those who did not sign the appeal
4.2. Who may appeal

4.3. What are appealable

- what are final judgments
when does a judgment or order become final
final judgments vs judgments that are final and executory
- what are not appealable and why are they not?
- test of final nature is when it completely disposes of the case
- Exception Sec 1, Rule 41 (a-g) in which cases remedy is by Rule 65

(2) D.M. Ferrer & Associates v UST GR 189496 February 1, 2012 - BOMBALES
2005: Petition and UST Hospital entered into a Project Management Contract for the renovation of the 4th and
5th floors of its Medical Arts Tower
On various dates, petitioner demanded from USTHI the payment of the construction costs totaling to P17M
2008, UST Rector De la Rosa wrote a letter informing petitioner that its claim for payment had been denied,
absence of the required prior approval of the board of trustees.
Petitioner filed a complaint for sum of money, breach of contract and damages against the Hospital
In impleading USTv(under the doctrine of piercing the corporate veil), petitioner alleged that:
UST took complete control over the business and operation of USTHI and UST, as well as the
completion of the construction project thus should be impleaded
Rector also verbally assured them the payment of USTHIs outstanding obligations.
Respondent filed MTD and alleged that the Complaint failed to state a cause of action, and that the claim was
unenforceable under the provisions of the Statute of Frauds.
RTC judge held that respondent was not a real party of interest and not privy to the contract
Petitioner filed an MR asserted that only allegations of the Complaint, and not the attached documents, should
have been the basis of the trial courts ruling, consistent with the rule that the cause of action can be determined
only from the facts alleged in the Complaint. It also insisted that the Statute of Frauds was inapplicable, since
USTHIs obligation had already been partially executed.
MR was denied

Petitioner file Petition for Certiorari under Rule 65.

Petitioner alleged that the trial court committed grave abuse of discretion when it granted respondents
Motion to Dismiss on the basis of the documents submitted in support of the Complaint, and not solely
on the allegations stated therein.

Petitioner pointed out that the allegations raised questions of fact and law, which should have been
threshed out during trial, when both parties would have been given the chance to present evidence
supporting their respective allegations.
CA dismissed the Petition on the ground that a petition under Rule 65 is the wrong remedy to question the
RTCs Order that completely disposes of the case. Instead, petitioner should have availed itself of an appeal
under Rule 41 of the Rules of Court.
Issue: Whether the CA erred in dismissing the Petition for Certiorari by failing to consider the exception in Sec. 1(g) of Rule 41 of
the Rules of Court
Ruling: YES
Respondent insists that petitioner should have first filed a notice of appeal before the RTC, and the appeal should have
been subsequently denied before recourse to the CA was made.
SC disagreed. In the case of Jan-Dec Construction Corp. v. Court of Appeals, it was held that a petition for certiorari
under Rule 65 is the proper remedy to question the dismissal of an action against one of the parties while the main case
is still pending. However, this is only the general rule in accordance with Rule 41, Sec. 1(g).
Evidently, the CA erred in dismissing petitioner's petition for certiorari from the Order of the RTC
dismissing the complaint against respondent. While Section 1, Rule 41 of the 1997 Rules of Civil
Procedure states that an appeal may be taken only from a final order that completely disposes of the
case, it also provides several exceptions xxx
(g) 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 (h) an order dismissing an action without prejudice.
In the present case, the Order of the RTC dismissing the complaint against respondent is a final
order because it terminates the proceedings against respondent but it falls within exception (g) of the
Rule since the case involves two defendants, Intermodal and herein respondent and the complaint
against Intermodal is still pending.
Thus, the remedy of a special civil action for certiorari availed of by petitioner before the CA was
proper and the CA erred in dismissing the petition.

4.4. Modes of appeal

- ordinary appeal (by mere notice of appeal with court rendering judgment)
no extension of period to file notice of appeal
interrupted by motion for NT or recon
if NT or recon denied, fresh period to appeal

(3) Neypes vs CA GR 141524 Sept 14, 2005 - FERNANDEZ

Facts: Petitioner Neypes filed an action for annulment of judgment before the RTC.

In an order dated February 12, 1998, the trial court dismissed petitioners complaint on the ground that the action had already

prescribed. Petitioners allegedly received a copy of the order of dismissal on March 3, 1998 and, on the 15th day thereafter or on March

18, 1998, filed a motion for reconsideration. On July 1, 1998, the trial court issued another order dismissing the motion for

reconsideration which petitioners received on July 22, 1998. Five days later, on July 27, 1998, petitioners filed a notice of appeal and paid

the appeal fees on August 3, 1998.

On August 4, 1998, the court a quo denied the notice of appeal, holding that it was filed eight days late

Issue: WON petitioners appeal should be denied? No. There is a fresh 15 day period to appeal from denial of MR.

Held: The right to appeal is neither a natural right nor a part of due process. It is merely a statutory privilege and may be
exercised only in the manner and in accordance with the provisions of law. Thus, one who seeks to avail of the right to appeal must
comply with the requirements of the Rules. Failure to do so often leads to the loss of the right to appeal

To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court

deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from

receipt of the order dismissing a motion for a new trial or motion for reconsideration. [30]
Henceforth, this fresh period rule shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional

Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from

quasi-judicial agencies[31] to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court.[32] The new rule

aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for

reconsideration (whether full or partial) or any final order or resolution.

We thus hold that petitioners seasonably filed their notice of appeal within the fresh period of 15 days, counted from July 22,

1998 (the date of receipt of notice denying their motion for reconsideration).

The fresh period of 15 days becomes significant only when a party opts to file a motion for new trial or motion for

reconsideration. In this manner, the trial court which rendered the assailed decision is given another opportunity to review the case and, in

the process, minimize and/or rectify any error of judgment. While we aim to resolve cases with dispatch and to have judgments of courts

become final at some definite time, we likewise aspire to deliver justice fairly.

In this case, the new period of 15 days eradicates the confusion as to when the 15-day appeal period should be counted from

receipt of notice of judgment (March 3, 1998) or from receipt of notice of final order appealed from (July 22, 1998).

To recapitulate, a party litigant may either file his notice of appeal within 15 days from receipt of the Regional Trial Courts

decision or file it within 15 days from receipt of the order (the final order) denying his motion for new trial or motion for reconsideration.

Obviously, the new 15-day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory

after the lapse of the original appeal period provided in Rule 41, Section 3.

Petitioners here filed their notice of appeal on July 27, 1998 or five days from receipt of the order denying their motion for

reconsideration on July 22, 1998. Hence, the notice of appeal was well within the fresh appeal period of 15 days, as already discussed

payment of docket fees must accompany notice of appeal

- petition for review (by filing petition with CA under rule 42)
second level of review
review of judgment in exercise of appellate jurisdiction
RTC (appellate jurisdiction) to CA
not a matter of right; discretionary on part of CA
(4) Ong v Tating. 149 SCRA 265 - FORTES-LEUNG

Hector Ong v. Marilyn and Robert Tating (1987)

Petition for Review is the proper mode of appeal to CA if RTC exercised appellate jurisdiction
Cognizance is discretionary on the part of the CA, only when petition shows prima facie that lower court
committed error of law or fact
Ordinary Appeal or Appeal by Writ of Error (file NOA) proper mode of appeal to CA if RTC exercised original jurisdiction
Record on Appeal (ROA) needed if the appeal is taken in special proceedings and other cases wherein multiple
appeals are allowed under the law
If appeal involves purely question of law: SC via Petition for Review on Certiorari under Rules 42 and 45.

In 1978, Hector Ong filed a complaint for desahucio (ejectment) against his lessee Evangeline Roces with City Court of
QC (MeTC). City Court decided in favor of Roces
CFI (RTC) reversed City Court and ordered Roces and all persons claiming rights under her to vacate property and pay
unpaid rentals
No appeal taken by Roces, decision became final and executory. Records of the case remanded to City Court
Upon application of Ong, the City Court directed execution of the judgment. The sheriff cleared the premises of its
occupants, which included Anacleto Tating (Evangeline's stepfather and lawyer), Marilyn Tating (Anacleto's wife), and
Robert Tating
The sheriff also levied on certain chattels found in the place: a "Citizen" stereo set; a "Sanyo" television set; a
"Frigidaire" refrigerator; and a "Hitachi" electric desk fan
Marilyn and Robert Tating sought to retrieve these appliances from the sheriff, alleging that the articles belonged to
them and not to Evangeline Roces.
Tatings filed with the sheriff a 'Third Party Claim" as regards their appliances, which was denied by the City Court
Robert then filed with the same court an "Urgent Motion for Suspension of Sheriff Sale and for Release of Properties
Wrongfully Levied Upon on Execution
Ong, to neutralize Roberts petitions, filed a bond in order for the execution sale to proceed. He also filed an Opposition
to Roberts motions. This was denied by the City Court
Ong then filed with the CFI a petition for Certiorari and Application for Injunction and Inhibition of city court Judge
Laguio. CFI decided the case in favor of Ong and ordered the execution sale of the appliances of the Tatings
Tatings appealed to the Court of Appeals by a petition for review. CA only ruled on one issue: Judge Laguio should
continue hearing the case at City Court level (kalerks! All this trouble for ref and radio)
Hence, Ong now is filed petition with SC
ISSUES: WON the Tatings erred in filing a petition for review with the CA? -YES
Ong is correct in arguing that the mode of appeal to the CA available to the Tatings from the adverse judgment of the
CFI in the action of certiorari and prohibition instituted by him, was not by "petition for review but an ordinary appeal (by
writ of error) because CFI exercised its original jurisdiction (see also doctrine)
Also the bond had absolutely no effect on the City Court's jurisdiction. It was merely "equivalent to the personal
interference of the indemnitor and his bondsmen in the course of the proceeding by directing or requesting the sheriff to
hold and sell the goods as if they were the property of the defendants in attachment
Order of Court to Roces to pay arrearages not binding on Tatings as they were never impleaded

- appeal by certiorari (filing petition with SC)

appeal to the SC
from RTC on questions of law only (Rule 41)

(5) UMC v Velasco 98 S 545 - KUNG


This is an appeal on a question of law from a decision of the Court of First Instance of Manila. Since the appeal was perfected in
1965 before the enactment of R.A. No. 5440 which took effect on September 7, 1968, a record on appeal was submitted. The
plaintiff-appellant filed a brief but defendants-appellees having failed to file their brief within the reglementary period the case
was submitted for decision without their brief.

Velasco bought on installment basis a Mercedes-Benz truck fr. Universal Motors (UM). He executed a PN for the balance as well
as a chattel mortgage over the truck. He defaulted in his payments so UM asked him to surrender the truck but he failed/refused
to do so. UM instituted an action to recover the truck preparatory to foreclosure of the CM. A writ of replevin was issued so UM
repossessed the truck. TC held that UM is entitled to the possession & V was ordered to pay UM the costs of suit plus atty.s
fees. However, it held that all these sums may be enforced only against the proceeds of the sale of the truck on the ground that,
in proceedings for foreclosure of mortgages executed on chattels w/c have been sold on installment, the mortgagee is limited to
the property included in the mortgage. Hence, this appeal by UM.

Issue: The only issue is whether the plaintiff is entitled to recover the expenses mentioned in paragraph 4 and attorney's fees.

HELD: Velasco should be made to pay the costs of suit & atty.s fees independently of the proceeds of the auction sale of truck.
Art. 1484 is inapplicable in the CAB for two reasons:
The action instituted in the court a quo was not foreclosure of the chattel mortgage, but for replevin
Amounts adjudged in favor of Universal were not part of the unpaid balance of the price, or in the concept of a deficiency
judgment, but were for expenses of the suit.

This case is for delivery of personal prop. under Rule 60 of the ROC. The mere fact that appellee has secured
possession of the truck does not necessarily mean that it will foreclose the mortgage. Indeed, there is no showing at all that
appellee is causing the sale thereof at public auction or in even preparing to do so.

As held in the Tajanlajit & Manila Motors case, it is the actual sale of the mortgaged chattel that would bar the creditor
from recovering any unpaid balance.

may be remanded to CA if involving question of fact (rule 56, sec 6), not dismissed
from final order or resolution of CA or SB (rule 45) but only on questions of law
appeal to SC not a matter of right (Rule 45, sec 6)

(6) Cheesman v IAC, 193 S 93 - MAGSUMBOL

F: This appeal concerns the attempt by an American citizen (petitioner Thomas Cheesman) to annul for lack of consent on
his part the sale by his Filipino wife (Criselda) of a residential lot and building to Estelita Padilla, also a Filipino.

The action resulted in a judgment declaring void ab initio the sale executed by Criselda Cheesman in favor of Estelita M.
Padilla.The judgment was however set aside as regards Estelita Padilla on a petition for relief filed by the latter, grounded on
"fraud, mistake and/or excusable negligence" which had seriously impaired her right to present her case adequately. "After the
petition for relief from judgment was given due course," according to petitioner, "a new judge presided over the case.

Estelita Padilla filed a supplemental pleading as her own answer to the complaint, and a motion for summary judgment.
Although there was initial opposition by Thomas Cheesman to the motion, the parties ultimately agreed on the rendition by the
court of a summary judgment after entering into a stipulation of facts, at the hearing of the motion, the stipulation being of the
following tenor:
that the property in question was bought during the existence of the marriage between the plaintiff and the defendant
Criselda P. Cheesman;
that the property bought during the marriage was registered in the name of Criselda Cheesman and that the Deed of
Sale and Transfer of Possessory Rights executed by the former owner-vendor Armando Altares in favor of Criselda
Cheesman made no mention of the plaintiff;
that the property, subject of the proceedings, was sold by defendant Criselda Cheesman in favor of the other defendant
Estelita M. Padilla, without the written consent of the plaintiff.

Obviously upon the theory that no genuine issue existed any longer and there was hence no need of a trial, the parties having in
fact submitted, as also stipulated, their respective memoranda each praying for a favorable verdict.
The Trial Court rendered a "Summary Judgment" declaring "the sale executed by Criselda Cheesman in favor of Estelita
Padilla to be valid," dismissing Thomas Cheesman's complaint and ordering him "to immediately turn over the
possession of the house and lot subject of . . . (the) case to . . . Estelita Padilla . . ."
Basis: Husband plaintiff is an American hence he is disqualified under the Constitution to acquire and own real
properties. Therefore, though bought during marriage, the property is a paraphernal property of Criselda.

Thomas Cheesman appealed to the IAC which found the contentions without merit, and affirmed the Summary Judgment
complained of. Thomas Cheesman again availed of the remedy of appeal, this time to the SC. He argues that the IAC committed
reversible error in its judgment affirming the judgment rendered by the Trial Court.

I: W/N it is proper to appeal through a petition for review on certiorari?

H: NO. The conclusions made by CFI and IAC that (1) fraud, mistake or excusable negligence existed in the premises justifying
relief to Estelita Padilla under Rule 38 of the Rules of Court, or (2) that Criselda Cheesman had used money she had brought
into her marriage to Thomas Cheesman to purchase the lot and house in question, or (3) that Estelita Padilla believed in good
faith that Criselda Cheesman was the exclusive owner of the property that she (Estelita) intended to and did in fact buyderived
from the evidence adduced by the parties, the facts set out in the pleadings or otherwise appearing on recordare conclusions
or findings of fact. As distinguished from a question of lawwhich exists "when the doubt or difference arises as to what the law
is on a certain state of facts" "there is a question of fact when the doubt or difference arises as to the truth or the falsehood of
alleged facts;" or when the "query necessarily invites calibration of the whole evidence considering mainly the credibility of
witnesses, existence and relevancy of specific surrounding circumstances, their relation; to each other and to the whole and the
probabilities of the situation."

Now, it is axiomatic that only questions of law, distinctly set forth, may be raised in a petition for the review on certiorari of a
decision of the Court of Appeals presented to this Court. As everyone knows or ought to know, the appellate jurisdiction of this
Court is limited to reviewing errors of law, accepting as conclusive the factual findings of the lower court upon its own
assessment of the evidence. The creation of the Court of Appeals was precisely intended to take away from the Supreme Court
the work of examining the evidence, and confine its task to the determination of questions which do not call for the reading and
study of transcripts containing the testimony of witnesses. The rule of conclusiveness of the factual findings or conclusions of the
Court of Appeals is, to be sure, subject to certain exceptions, none of which however obtains in the case at bar.

It is noteworthy that both the CFI and IAC reached the same conclusions on the three (3) factual matters above set forth, after
assessment of the evidence and determination of the probative value thereof. Consequently, these determinations of fact will not
be here disturbed, this Court having been cited to no reason for doing so.

These considerations dispose of the first three (3) points that petitioner Cheesman seeks to make in his appeal. They also make
unnecessary an extended discussion of the other issues raised by him. As to them, it should suffice to restate certain
fundamental propositions.
****Additional Notes: An order of a CFI (now RTC) granting a petition for relief under Rule 38 is interlocutory and is not
appealable. Hence, the failure of the party who opposed the petition to appeal from said order, or his participation in the
proceedings subsequently had, cannot be construed as a waiver of his objection to the petition for relief so as to preclude his
raising the same question on appeal from the judgment on the merits of the main case. Such a party need not repeat his
objections to the petition for relief, or perform any act thereafter (e.g., take formal exception) in order to preserve his right to
question the same eventually, on appeal, it being sufficient for this purpose that he has made of record "the action which he
desires the court to take or his objection to the action of the court and his grounds therefor."

Again, the prayer in a petition for relief from judgment under Rule 38 is not necessarily the same prayer in the petitioner's
complaint, answer or other basic pleading. This should be obvious. Equally obvious is that once a petition for relief is granted
and the judgment subject thereof set aside, and further proceedings are thereafter had, the Court in its judgment on the merits
may properly grant the relief sought in the petitioner's basic pleadings, although different from that stated in his petition for relief.

(7) Sumbingco v CA, 155 S 24 - NIDEA

Demerin et. al, prior to the purchase by Sumbingco of the haciendas in question from Ricardo Nolan, were already tenants of
Nolan, planting the areas occupied by them 'with rice. After Sumbingco acquired the land, they continued as tenants thereon by
permission of Sumbingco's administrator. However, Sumibingco later caused the planting of their landholdings to citrus,
depriving them of possession thereof, and told them to vacate their landholdings.

Demerin et. al. filed with the Court of Agrarian Relations a complaint against Sumbingco, seeking their reinstatement as tenants
on the latter two (2) haciendas and the payment to them of damages. The Court of Agrarian Relations dismissed their complaint.
On appeal, the Appellate Court reversed the decision of the Court of Agrarian Relations and ordered the payment to Demerin, et
al. of damages but not reinstatement on the ground that the landholdings had already been completely planted to citrus.

Unsatisfied, the Demerin group have taken an appeal by certiorari to this Court.
Issue: Whether or not the Court should give due course.
Ruling: No. Petition is Denied
It is axiomatic that appeals from the Court of Appeals are not a matter of right but of sound judicial discretion on the part of this
Court, and will be granted only when there are special and important reasons therefor. In other words, appeals from the Court of
Appeals are not entertained as a matter of routine; they may be rejected out of hand in the exercise of this Court's sound judicial
discretion. The prescribed mode of appeal is by certiorari, limited only to issues or questions of law which must be distinctly set
forth in the petition for review on certiorari. The findings of fact of the Appellate Court are conclusive even on this Court, subject
only to a few well defined exceptions (none of which is present in the instant case). It is incumbent on the appellant to make out
a sufficiently strong demonstration of serious error on the part of the Court of Appeals, and adduced special and important
reasons to justlfy the exercise by this Court of its discretionary appellate jurisdiction, failing in which this Court will decline to
wield its invoked power of review and will dismiss the appeal on the ground that it is without merit, or is prosecuted manifestly for
delay or the questions raised are too unsubstantial to require consideration.

A thoroughgoing review of the record discloses that contrary to this Court's first impression, which initially led it to give due
course to both petitions in its case, there is no special and important reason to justify this Court's exercise of its appellate

What is a question of law?

(8) See Macawiwili and Land Bank cases below - PAJA

F: The parties are both mining companies. In an earlier case, (Poe Mining Association v. Garcia), the Supreme Court awarded
mining claims over a certain area in Benguet to Macawiwili and Omico. Over those same lands, before the earlier case was filed
and adjudicated, Philex Mining had made improvements over the same. After the Poe case was decided, Philex Mining
Corporation filed a complaint for expropriation over the same lands that were the subject of the Poe Mining Association v. Garcia
case with a prayer for a writ of preliminary injunction to enjoin petitioenrs from ejecting it from the areas sought to be
expropriated. Petitioner filed a MTD for violation of forum shopping. The RTC granted the MTD. Respondents filed a MR, which
was denied. It then appealed to the CA by way of an ordinary appeal. Petitioners filed a MTD Appeal on the ground that only
questions of law were involved and therefore the appeal should be to the SC. The CA denied the MTD. Without filing a MR,
petitioners filed a petition for certiorari (Rule 65).

I: Whether or not the CA committed GADALEJ when it denied the MTD on the ground that only questions of law were involved
and therefore the appeal should be to the SC?

H: Yes. Petition Granted.

R: (Summary of Rule on Appeals) The rules on appeals from the judgments of the regional trial courts in civil cases may thus
be summarized as follows:
(1) Original JurisdictionIn all cases decided by the regional trial courts in the exercise of their original jurisdiction, appeal may
be made to:

(a) Court of Appealswhere the appellant raises questions of fact or mixed questions of fact and law, by filing a mere notice of

(b) Supreme Courtwhere the appellant solely raises questions of law, by filing a petition for review on certiorari under Rule 45.

(2) Appellate JurisdictionAll appeals from judgments rendered by the regional trial courts in the exercise of their appellate
jurisdiction, whether the appellant raises questions of fact, of law, or mixed questions of fact and law, shall be by filing a petition
for review under Rule 42.

When is there a question of law?

The question is whether the issues raised in the appeal of respondent Philex Mining are questions of law or of fact. F]or a
question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the
litigants or any of them. And the distinction is well-known: There is a question of law in a given case when the doubt or
difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises
as to the truth or the falsehood of alleged facts.

Under Supreme Court Circular No. 2-90: c) Raising issues purely of law in the Court of Appeals, or appeal by wrong mode.If
an appeal under Rule 41 is taken from the regional trial court to the Court of Appeals and therein the appellant raises only
questions of law, the appeal shall be dismissed, issues purely of law not being reviewable by said Court. So, too, if an appeal is
attempted from the judgment rendered by a Regional Trial Court in the exercise of its appellate jurisdiction by notice of appeal,
instead of by petition for review, the appeal is inefficacious and should be dismissed.

The first four arguments advanced by respondent Philex Mining raise the sole issue of whether it has, under Presidential Decree
No. 463, the right to expropriate the 21.9 hectare mining areas where petitioners mining claims are located. On the other hand,
its final argument raises the issue of whether the rules on the allegation of alternative causes of action in one pleading under
Rule 8, 1 of the Rules of Court are applicable to special civil actions. These are legal questions whose resolution does not
require an examination of the probative weight of the evidence presented by the parties but a determination of what the law is on
the given state of facts. Philex Mining should have filed a petition for review on certiorari under Rule 45 directly with the
Supreme Court. The Court of Appeals committed a grave error in ruling otherwise.
petition for review on certiorari vs petition for certiorari

(8) New York Marine v CA, 249 S 416 - PEREZ

Doctrine: Where the court has jurisdiction over the case even if its findings are not correct they would at most constitute errors of
law and not abuse of discretion correctible by certiorari.

NEW YORK MARINE MANAGERS, INC., a foreign corporation organized under the laws of the United States, seeks in
this special civil action for certiorari under Rule 65 of the Rules of Court1 the annulment of the decision of the Court of
Appeals which reversed the ruling of the trial court denying the motion to dismiss of private respondent Vlasons
Shipping Company, Inc.
This petition alleges that the Court of Appeals acted whimsically, capriciously and arbitrarily amounting to lack or excess
of jurisdiction in deciding that petitioners complaint was fatally defective for failing to allege its duly authorized
representative or resident agent in the Philippines.
On 25 July 1990 American Natural Soda Ash Corporation (ANSAC) loaded in Portland, U.S.A., a shipment of soda ash
on board the vessel MS Abu Hanna for delivery to Manila. The supplier/shipper insured the shipment with petitioner.
Upon arrival in Manila the shipment was unloaded and transferred to the vessel MV Biyayang Ginto owned by private
respondent. Since the shipment allegedly sustained wettage, hardening and contamination, it was rejected as total loss
by the consignees.
When the supplier sought to recover the value of the cargo loss from petitioner the latter paid the claim in the amount of
On 20 November 1991 petitioner as subrogee filed with the Regional Trial Court of Manila a complaint for damages
against private respondent alleging among others that
x x x x 1.01. Plaintiff is a non-life foreign insurance corporation organized under the laws of the State of New
York with offices at 123 William Street, New York, N.Y. 10038 and engaged in an isolated transaction in this
case; defendant is a local domestic corporation organized under Philippine law with offices at Zobel Street, Isla
de Provisor, Paco, Metro Manila.
On 24 January 1992 private respondent filed a motion to dismiss the complaint alleging that: (a) The complaint was filed
by counsel who had no authority to sue for plaintiff; (b) The complainant stated no cause of action or without a cause of
action as (a) there was no privity of contract between plaintiff and defendant; (b) the risks which allegedly caused
damages on the goods were not covered by the insurance issued by plaintiff, and (c) the charter agreement between
the consignee, ALCHEMCO PHILIPPINES, INC., and private respondent absolved the latter from all kinds of claim
whatsoever; (3) The claim of plaintiff was already extinguished, waived, abandoned and/or had prescribed; and, (4)
Plaintiff had no legal capacity to sue.
The trial court ruled that since petitioner alleged in its complaint that it was suing on an isolated transaction the
qualifying circumstance of plaintiffs capacity to sue as gm essential element has been properly pleaded. The trial court
also held that the grounds relied upon by private respondent in its motion to dismiss were matters of defense.
The CA reversed the Trial courts decision. It said that the petitioners complaint was fatally defective for failing to allege
its duly authorized representative or resident agent in the Philippines.
Petitioner argues that there is no law, substantive or procedural, that requires a foreign corporation engaged only in an
isolated transaction to appoint a duly authorized representative or a resident agent in the Philippines before it can sue
locally. It said that the CA violated Rule 65.

Issue: Was the remedy of petitioner correct?

Held: No. The proper remedy available to petitioner from a decision of the Court of Appeals is a petition for review on certiorari
under Rule 45 of the Rules of Court, not a petition for certiorari under Rule 65 of the Rules of Court. Mere errors of judgment
cannot be the proper subject of a special civil action for certiorari. Where the issue or question involved affects the wisdom or
legal soundness of the decisionnot the jurisdiction of the court to render said decisionthe same is beyond the province of a
special civil action for certiorari. Erroneous findings and conclusions do not render the appellate court vulnerable to the
corrective writ of certiorari. For where the court has jurisdiction over the case, even if its findings are not correct, they would, at
most, constitute errors of law and not abuse of discretion correctible by certiorari.
But even if we treat the instant petition as one for review on certiorari the same must still fail, petitioners complaint is fatally
defective for failing to allege its duly authorized representative or resident agent in this jurisdiction. The pleadings filed by
counsel for petitioner do not suffice. True, a lawyer is generally presumed to be properly authorized to represent any cause in
which he appears, and no written power of attorney is required to authorize him to appear in court for his client. But this
presumption is disputable. Where said authority has been challenged or attacked by the adverse party the lawyer is required to
show proof of such authority or representation in order to bind his client. The requirement of the production of authority is
essential because the client will be bound by his acquiescence resulting from his knowledge that he was being represented by
said attorney.9 In the instant case, the extent of authority of counsel for petitioner has been expressly and continuously assailed
but he has failed to show competent proof that he was indeed duly authorized to represent petitioner.
WHEREFORE, the petition is DENIED.

(9) Ybanez v CA, 253 S 540 - SASAKI

Petitioners, spouses Ybaez, as vendors, entered into a Deed of Sale With Assumption of Mortgage and With Right of
Repurchase over a mortgaged 400 sq. m. parcel of land in favor of private respondents spouses Ifurung, as vendees.
Deed of Sale had the ff. terms
(1) private respondents shall pay the P118k to the Petitioners and assume the Mortgage with DBP
(2) Petitioners shall have the right to repurchase the property within three months from the date of the sale;
(3) failure on the part of Petitioners to repurchase within the agreed period will cause the transfer of the property
to private respondents without reservation, and Petitioners will vacate the subject property and surrender
possession thereof in favor of private respondents
The three-month period expired w/o the Petitioners exercising their right to repurchase
Private respondents, through counsel, demanded that Petitioners surrender the possession of the subject property and
vacate the premises
Private respondents filed an ejectment suit against Petitioners before the MTC
Substituted service of summons was served
Petitioners failed to file an answer
Rendered judgment motu propio in favor of private respondents
Ordered Petitioners to surrender and vacate the property
Petitioners appealed to the RTC and alleged the lack of valid service of summons
Petitioners thereafter filed a notice of appeal to the RTC signifying their intention to appeal the judgment to the CA
DENIED the notice of appeal
Appeal is not the proper remedy
Proper remedy is petition for review
Petitioners filed a MNT before the RTC
Filed beyond the reglementary period
Decision became final and executory
Petitioners commenced an action for Cancellation of Deed of Sale With Assumption of Mortgage and With Right of
Repurchase With Damages, before RTC
DISMISSED for lack of merit
Dismissal is pending appeal before the CA
in a desperate move, Petitioners filed another actiona petition for annulment of judgment of the RTC before
respondent CA
Petitioners assailed the validity of the substituted service of summons
REVERSED the RTCs decision
The substituted service of summons was improperly served
No extrinsic fraud to warrant the annulment of the MTC and RTC judgments
Dissatisfied, but without filing a MR for no apparent reason, Petitioners filed the instant petition stressing that [t]his is
a petition for certiorari, both under Rule 65 and Rule 45

W/N the Petitioners followed the proper procedure - NO

W/N this petition may be both under rules 45 and 65 NO


The Petitioners immediately filed this petition without even filing a motion for reconsideration of the assailed decision thereby
depriving respondent court of the opportunity to correct at the first instance an error which it may have committed. We see no
cogent reason and none was persuasively presented to excuse Petitioners from their failure to file a motion for reconsideration.

Also glaring is the ambivalent, if not irresolute, posture taken by the Petitioners by categorizing this petition to be both under
Rule 65 and Rule 45, Rules of Court in an attempt, apparently, to evade the dismissal of the petition based on a wrong mode of
appeal in accordance with Circular No. 2-90 issued on March 9, 1990. The court cannot tolerate this practice much less the
seeming ignorance of the law on appeals.

This petition cannot be subsumed simultaneously under Rule 45 and Rule 65 of the Rules of Court, and neither may Petitioners
delegate upon the court the task of determining under which rule the petition should fall. Under Circular No. 2-90, wrong or
inappropriate mode of appeal, as in this case, merits an outright dismissal.

- Rule on appeals summarized

(10)Macawiwili Gold Mining and Devt Co v CA 297 S 602 - TABAG

- Back story of case: SC upheld decision of DENR and the OP recognizing possessory rights of Macawiwili and Omico over a lot
in Benguet. In this case, Philex Mining was the plaintiff. However, Philex made improvements in the surface of the property
(roads, motorpool facility, tailing dams, bunkouses). SC ordered removal but Philex allege that these are necessary for mining
operations thus they filed an expropriation case. Note, SC awarded property to Macawiwili and Omico.
- Respondent Philex Mining filed a complaint for expropriation against petitioners Macawiwili Gold Ming and Omico. Subject
property is 21.9 hectares of petitioners mining areas where the latters Macawiwili claims are located.
- Court granted TRO but denied preliminary injunction filed by Philex Mining. Court eventually dismissed complaint at motion of
petitioners stating that it was forum-shopping. Philiex filed a MR, this was denied. An appeal was filed.
- Petitioners then filed a motion to dismiss appeal because only questions of law ere involved and therefore appeal should be in
the SC. This was denied. No MR but petitioners filed a petition for certiorari.
- Philex now seeks dismissal of petition for certiorari for failure to file an MR.

W/N motion to dismiss should be granted.

NO. When a definite question has been properly raised, argued, and submitted to a lower court, and the latter has decided the
question, a motion for reconsideration is no longer necessary as a condition precedent to the filing of a petition for certiorari in
this Court.
A petition for certiorari will not be entertained unless the respondent has had, through a motion for reconsideration, a chance to
correct the error imputed to him. This rule is subject, however, to exceptions, among which are the following, namely: 1) where
the issue raised is one purely of law; 2) where public interest is involved; and 3) in case of urgency. These circumstances are
present in the case at bar.
To begin with, the writ of certiorari lies when a court, in denying a motion to dismiss, acts without or in excess of jurisdiction or
with grave abuse of discretion. By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of
positive duty or to a virtual refusal to perform the duty enjoined by or to act all in contemplation of law.
Judgments of the regional trial courts in the exercise of their original jurisdiction are to be elevated to the Court of
Appeals in cases where the appellant raises questions of fact or mixed questions of fact and law. On the other hand,
appeals from judgments of the regional trial courts in the exercise of their original jurisdiction must be brought
directly to the Supreme Court in cases where the appellant raises only questions of law.

This procedure is now embodied in Rule 41, 2 of the 1997 Rules of Civil Procedure which distinguishes the different
modes of appeal from judgments of regional trial courts as follows:
Modes of appeal.-
(a) Ordinary appeal. - The appeal to the Court to Appeals in cases decided by the Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed
from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings
and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal
shall be filed and served in like manner.
(b) Petition for review. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review in accordance with Rule 42.
(c) Appeal by certiorari. - In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme
Court by petition for review on certiorari in accordance with Rule 45.
On the other hand, Rule 42 provides that appeals from judgments of the regional trial courts in the exercise of their appellate
jurisdiction must be brought to the Court of Appeals, whether the appellant raises questions of fact, of law, or mixed questions of
fact and law.
The rules on appeals from the judgments of the regional trial courts in civil cases may thus be summarized as follows:
(1) Original Jurisdiction - In all cases decided by the regional trial courts in the exercise of their original jurisdiction, appeal may
be made to:
(a) Court of Appeals - where the appellant raises questions of fact or mixed questions of fact and law, by filing a mere notice of
(b) Supreme Court - where the appellant solely raises questions of law, by filing a petition for review on certiorari under Rule 45.
(2) Appellate Jurisdiction

All appeals from judgments rendered by the regional trial courts in the exercise of their appellate jurisdiction,
whether the appellant raises questions of fact, of law, or mixed questions of fact and law, shall be by filing a petition
for review under Rule 42.

(11)Land Bank of the Philippines v Ramos 685 S 540 - VELASCO

Ramos sold to DPWH apportion of land that was to be used for construction of a bridge. It was indicated in the deed of sale that
the land was co-owned however, only Ramos signed as the vendee. DPWH was able to pay a portion of the total selling price
(thru deposits in respondents acct w Land Bank), but it withheld the rest of the payment when respondents brother came to
them asking for his share as a co-owner in the proceeds of the sale.

DPWH Legal department issued an Indorsement stating that DPWH will not pay until a Degree of Participation is settled for
every heir/co-owner of the land. Respondent Ramos filed a complaint for Recovery of Bank Deposit with Damages against Land
Bank, and a third-party complaint against DPWH.

party complaint against DPWH.

RTC ruled in favor of respondent, and dismissed the 3rd

Land Bank filed an MR, but was denied.

Its appeal to the CA was also denied for having raised only pure questions of law. It held that the proper action was to file a
Petition for Review on Certiorari before the SC under Rule 45 instead of an ordinary appeal under Rule 41.

Whether a petition for review on certiorari was the proper action


The rule on appeals is as follows (Macawiwili v CA):
1. In all cases decided by the RTC in the exercise of its original jurisdiction, appeal may be made to the CA by mere notice of
appeal where the appellant raises questions of fact or mixed questions of fact and law;
2. In all cases decided by the RTC in the exercise of its original jurisdiction where the appellant raises only questions of law, the
appeal must be taken to the SC on a petition for review on certiorari under Rule 45;
3. All appeals from judgments rendered by the RTC in the exercise of its appellate jurisdiction, regardless of whether the
appellant raises questions of fact, questions of law, or mixed questions of fact and law, shall be brought to the CA by filing a
petition for review under Rule 42.

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact
when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an
examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must
rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the
evidence presented, the question posed is one of fact. Thus, the test of whether a question is one of law or of fact is not the
appellation given to such question by the party raising the same; rather, it is whether the appellate court can determine the issue
raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise it is a question of fact.

Here, petitioner raised mixed questions of fact and law. CA erred in dismissing the case on the ground of lack of jurisdiction.

4.5. When does court lose jurisdiction relative to filing of notice of appeal
- May notice of appeal be contested? Dismissed by court?
- duty of court when notice of appeal filed
- dilatory appeals

4.6. Improper appeals

- to CA from RTC on questions of law
- to SC via notice of appeal
- to CA on notice of appeal from RTC decision rendered in appellate jurisdiction
- the above modes will merit dismissal; no transfer to correct court will be allowed
(Exception is when appeal to SC on questions of law and fact in which case, the case will be remanded to CA)


5.1. Preliminary Attachment

- Kinds of attachment
levy on execution
- At what stage is preliminary attachment granted?
- grounds for attachment exclusive
- may be granted ex parte

(12)Onate v Abrogar, 241 S 659 - ATIENZA

Before the summons and the complaint were served on petitioners Oate and Econ Holdings Corporation (Econ) on January 9, 1992,
Deputy Sheriff Arturo C. Flores had already served on January 3, 1992 notices of garnishment on the PNB Head Office 2 and on all its
Metro Manila branches and on A.B. Capital.
Petitioners maintain that, in accordance with prior decisions of this Court, the attachment of their properties was void because the trial court
had not at that time acquired jurisdiction over them and that the subsequent service of summons on them did not cure the invalidity of the
Respondent SUN Life insurance stresses the fact that trial court eventually acquired jurisdiction over petitioners and contends that this
cured the invalidity of the attachment of petitioner's properties.
ISSUE: WON a preliminary attachment can be made prior to service of summons
HELD: Initial 2 stages can proceed, but third cannot be implemented without service of summons
It must be emphasized that the grant of the provisional remedy of attachment practically involves three stages

First, the court issues the order granting the application

Second, the writ of attachment issues pursuant to the order granting the writ
Third, the writ is implemented.

For the initial two stages, it is not necessary that jurisdiction over the person of the defendant should first be obtained. However, once the
implementation commences, it is required that the court must have acquired jurisdiction over the defendant for without such jurisdiction, the
court has no power and authority to act in any manner against the defendant. Any order issuing from the Court will not bind the defendant.

(13)Davao Light & Water v CA, 204 S 343 - BAUTISTA

Davao Light and Power Inc, Co. filed a complaint for recovery of sum of money and damages against Queensland Hotel and
Teodorico Adarna. The complaint contained an ex parte application for a writ of preliminary attachment.

Judge Nartatez granted the writ and fixed the attachment bond at around P4Million. The summons, copy of complaint, writ of
attachment, copy of attachment bond were served upon Queensland and Adarna. Pursuant to the writ, the Sheriff seized the
properties of the latter.
Queensland and Adarna filed a motion to discharge the attachment for lack of jurisdiction to issue the same because at the time
the order of attachment was promulgated (May 3, 1989) and the attachment writ issued (May 11,1989), the Trial Court had not
yet acquired jurisdiction over cause and person of defendants.

Trial Court denied the motion to discharge.

CA annulled the Trial Courts Order. Davao seeks to reverse CAs order.

Whether or not preliminary attachment may issue ex parte against a defendant before acquiring jurisdiction over his person.

Yes. Rule 57 speaks of the grant of the remedy at the commencement of the action or at any time thereafter What the rule is
saying is that after an action is properly commenced (by filing of the complaint and payment of all requisite docket and other
fees), the plaintiff may apply for and obtain a writ of preliminary attachment. This he may do so, before or after, the summons to
the defendant.
The CA decision is reversed and the writ of attachment issued by Judge Nartatez is reinstated.

Preliminary Attachment provisional remedy in virtue of which a plaintiff or other party may, at the commencement of the action
or at any time thereafter, have the property of the adverse party taken into custody of court as security for satisfaction of
judgment to be recovered.

Nature of Attachment: a remedy which is purely statutory in respect of which the law requires a strict of construction of the
provisions granting it. No principle, whether statutory or through jurisprudence, prohibits its issuance by any court before the
acquisition of jurisdiction over the person.

(14) Sievert v CA, 168 S 692 - BISNAR

Albert Sievert received by mail a Petition for Issuance of a Preliminary Attachment filed with the RTC.
Sievert had not previously received any summons and any copy of a complaint against him.
Sievert prayed that the petition be denied for lack of jurisdiction over his person on the ground that since no summons
had be served upon him in he main case.
RTC died Sieverts objection and issued the preliminary attachment.
Hence, the present petition.

Issue: Whether or not a court which has not acquired jurisdiction over the person of the defendant in the main case, may bind
such defendant or his property by issuing a writ of preliminary attachment?

Ruling: No.
A writ of preliminary attachment may be applied for a plaintiff "at the commencement of the action or at any time
thereafter" in the cases enumerated in Section 1 of Rule 57 of the Revised Rules of Court.
The issue posed in this case, however, is not to be resolved by determining when an action may be regarded as having
been commenced, a point in time which, in any case, is not necessarily fixed and Identical regardless of the specific
purpose for which the deter. nation is to be made.
The critical time which must be Identified is, rather, when the trial court acquires authority under law to act coercively
against the defendant or his property in a proceeding in attachment.
The critical time is the time of the vesting of jurisdiction in the court over the person of the defendant in the main
Attachment is an ancillary remedy.
It is not sought for its own sake but rather to enable the attaching party to realize upon relief sought and
expected to be granted in the main or principal action .
A court which has not acquired jurisdiction over the person of defendant, cannot bind that defendant whether in
the main case or in any ancillary proceeding such as attachment proceedings.
The service of a petition for preliminary attachment without the prior or simultaneous service of summons and a
copy of the complaint in the main case and that is what happened in this case does not of course confer
jurisdiction upon the issuing court over the person of the defendant.
Ordinarily, the prayer in a petition for a writ of preliminary attachment is embodied or incorporated in the main complaint
itself as one of the forms of relief sought in such complaint.
Thus, valid service of summons and a copy of the complaint will in such case vest jurisdiction in the court over
the defendant both for purposes of the main case and for purposes of the ancillary remedy of attachment.
In such case, notice of the main case is at the same time notice of the auxiliary proceeding in attachment.
Where, however, the petition for a writ of preliminary attachment is embodied in a discrete pleading, such
petition must be served either simultaneously with service of summons and a copy of the main complaint, or
after jurisdiction over the defendant has already been acquired by such service of summons.
Notice of the separate attachment petition is not notice of the main action.
jurisdiction whether ratione personae or ratione materiae in an attachment proceeding is ancillary to jurisdiction
ratione personae or ratione materiae in the main action against the defendant.
If a court has no jurisdiction over the subject matter or over the person of the defendant in the principal action, it
simply has no jurisdiction to issue a writ of preliminary attachment against the defendant or his property.
It is basic that the requirements of the Rules of Court for issuance of preliminary attachment must be strictly and
faithfully complied with in view of the nature of this provisional remedy.
In Salas v. Adil, Court described preliminary attachment as a rigorous remedy which exposes the debtor to
humiliation and annoyance, such [that] it should not be abused as to cause unnecessary prejudice. It is,
therefore; the duty of the court, before issuing the writ, to ensure that all the requisites of the law have been
complied with; otherwise the judge acts in excess of his jurisdiction and the writ so issued shall be null and
In the case at bar, the want of jurisdiction of the trial court to proceed in the main case against the Sievert is quite clear.
It is not disputed that neither service of summons with a copy of the complaint nor voluntary appearance of
petitioner Sievert was had in this case. Yet, the trial court proceeded to hear the petition for issuance of the writ.
This is reversible error and must be corrected on certiorari.

(15)Carlos v Sandoval 471 S 266 - BOMBALES

Carlos and Teofilo are brothers and inherited several parcels of land from their parents.
Teofilo is married to Felicidad Sandoval and they had a son
Teofilo later on died
Carlos and Sandoval made certain agreements in connection to the properties
Carlos however later on sought to nullify the agreement alleging that Teofilo and Sandovals marriage is void and the
son is not Teofilos son. Thus he (carlos) is the sole heir.
Carlos likewise prayed for the issuance of the provisional relief of preliminary attachment of the properties
The RTC granted the writ of preliminary attachment
Notice of Garnishment was served upon the Philippine National Bank (PNB) over the deposit accounts maintained by
Respondents filed an Urgent Motion to Discharge the Writ of Attachment, which was denied by RTC
CA ordered the discharge and dissolution of the Writ of Attachment and Notice of Garnishment since there is no
sufficient cause of action to warrant the preliminary attachment, since Carlos had merely alleged general averments in
order to support his prayer.
Carlos elevated it to SC but Court but was later on denied thus the dissolution of the Writ of Attachment and Notice of
Garnishment became final.
In the meantime, the complaint for summary judgment was ruled in favor of Carlos thus RTC ordered the cancellation in
favor of the name of respondents and ordering the Register of Deeds to issue another title to Plaintiff.
Upon promulgation of the Summary Judgment, Carlos moved before the RTC for execution pending appeal. The RTC
granted the motion for execution pending appeal upon the filing of a bond. RTC issued a Writ of Execution.
Respondents filed an MR, after denial, filed an appeal.
(1) whether the assailed judgment on the attachment bond could have been rendered, as it was, prior to the adjudication of the
main case; -YES
(2) whether the Court of Appeals properly complied with the hearing requirement under Section 20, Rule 57 prior to its judgment
on the attachment bond; -YES
(3) whether the Court of Appeals properly ascertained the amount of damages it awarded in the judgment on the attachment
SECTION 20 RULE 57. Claim for damages on account of improper, irregular or excessive attachment.An application for
damages on account of improper, irregular or excessive attachment must be filed before the trial or before appeal is
perfected or before the judgment becomes executory, with due notice to the attaching obligee or his surety or sureties,
setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after
proper hearing and shall be included in the judgment on the main case.
Section 20 essentially allows the application to be filed at any time before the judgment becomes executory. It should be
filed in the same case that is the main action, and cannot be instituted separately. It should be filed with the court having
jurisdiction over the case at the time of the application.The remedy provided by law is exclusive and by failing to file a
motion for the determination of the damages on time and while the judgment is still under the control of the court, the
claimant loses his right to damages.
Petitioners assert that there was no proper hearing on the application for damages and that the Court of Appeals had wrongfully
acted on the application in that it resolved it prior to the rendition of the main judgment.
The hearing requirement ties with the indispensable demand of procedural due process. Due notice to the adverse party
and its surety setting forth the facts supporting the applicant's right to damages and the amount thereof under the bond
is essential. No judgment for damages may be entered and executed against the surety without giving it an opportunity
to be heard as to the reality or reasonableness of the damages resulting from the wrongful issuance of the writ
In Paramount Insurance v. Court of Appeals the Court held that under the rule, it was neither mandatory nor fatal that
there should be a separate hearing in order that damages upon the bond can be claimed, ascertained and
awardedWhat is necessary only is for the attaching party and his surety or sureties to be duly notified and given the
opportunity to be heard.
In this case, both Carlos and SIDDCOR were duly notified by the appellate court of the Motion for Judgment on the
Attachment Bond and were required to file their respective comments theretoCarlos and SIDDCOR filed their respective
comments in opposition to private respondents motion. Clearly, all the relevant parties had been afforded the bare right
to be heard on the matte
Thus, SC held that the demands of a "proper hearing" were satisfied as of the time the Court of Appeals
rendered its assailed judgment on the attachment bond.

Lastly, The award of actual damages by the CA is proper in amount.

However, SC disagree that the rate of legal interest be counted from the date of the "unlawful
garnishment," or on 27 June 1996. Properly, interest should start to accrue only from the moment it had
been finally determined that the attachment was unlawful, since it is on that basis that the right to
damages comes to existence. In this case, legal interest commences from the date the Court of
Appeals decision became final, by reason of its affirmation by this Court.

(16)Spouses Yu v Ngo Yee Te GR 155868 - FERNANDEZ

Facts: Spouses Gregorio and Josefa Yu (Spouses Yu) purchased from Ngo Yet Te (Te) bars of detergent soap worth P594,240.00, and
issued to the latter three postdated checks as payment of the purchase price. When Te presented the checks at maturity for encashment,
said checks were returned dishonored and stamped ACCOUNT CLOSED. Te demanded payment from Spouses Yu but the latter did not
heed her demands. Te filed with the Regional Trial Court for Collection of Sum of Money and Damages with Prayer for Preliminary

Upon Tes posting of an attachment bond, the RTC issued an Order of Attachment/Levy dated March 29, 1993 on the basis of which
Sheriff Constancio Alimurung (Sheriff Alimurung) of RTC, Branch 19, Cebu City levied and attached Spouses Yus properties in Cebu
City consisting of one parcel of land (known as Lot No. 11) and four units of motor vehicle, specifically, a Toyota Ford Fierra, a jeep, a
Canter delivery van, and a passenger bus

Spouses Yu filed an Answer with counterclaim for damages arising from the wrongful attachment of their properties. They contend that
they lose income from the wrongful attachment of the passenger bus.

Issue: WON damages should be awarded because of wrongful attachments of properties? No

Held: To merit an award of actual damages arising from a wrongful attachment, the attachment defendant must prove, with the best
evidence obtainable, the fact of loss or injury suffered and the amount thereof.
Manifestation filed by Sheriff Alimurung, it would appear that long before the passenger bus was placed under
preliminary attachment, the same had been previously attached by the Sheriff of Mandaue City in connection with
another case and that it was placed in the Cebu Bonded Warehousing Corporation, Cebu City. Thus, Spouses Yu
cannot complain that they were unreasonably deprived of the use of the passenger bus by reason of the subsequent
wrongful attachment issued. Nor can they also attribute to the wrongful attachment their failure to earn income or
profit from the operation of the passenger bus.

Moreover, petitioners did not present evidence as to the damages they suffered by reason of the wrongful
attachment of Lot No. 11.
Nonetheless, we recognize that Spouses Yu suffered some form of pecuniary loss when their properties
were wrongfully seized, although the amount thereof cannot be definitively ascertained. Hence, an award of
temperate or moderate damages in the amount of P50,000.00 is in order.
Based on the foregoing testimony, it is not difficult to understand why Te concluded that Spouses Yu never intended to pay their
obligation for they had available funds in their bank but chose to transfer said funds instead of cover the checks they issued. Thus, we
cannot attribute malice nor bad faith to Te in applying for the attachment writ. We cannot hold her liable for moral and exemplary

5.2. Preliminary Injunction

- preceded by a 72-hour TRO, 20-day TRO (RTC) or a 60-day TRO (CA)
- within TRO, hearing must be conducted
- may be granted at any stage of the proceeding
- requirements for issuance
- coordinate body may not be enjoined
- may be a provisional remedy and the principal remedy itself

(17)Bacolod City Water District v Labayen 446 S 110 - FORTES-LEUNG

Bacolod City Water District v. Judge Labayen (2004)

Doctrine: Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a certain act
Bacolod City Water District published an announcement in the local newspapers regarding water rate increase. The
increase was to be effective 7 days after publication
The city government filed a Petition to stop the rate increase due to lack of public hearing in accordance with the
requirement PD 1479.
The city government also filed an Urgent Motion for the Issuance of Temporary Restraining Order And[/]Or Writ of
Preliminary Injunction
The water district filed an MTD on the ground of lack of jurisdiction as rate reviews fall under the jurisdiction of the Local
Water Utilities Administration (LWUA) and appealable to the National Water Resources Board (NWRB) and finally to the
Office of the President
Judge Labayen issued a TRO to which the Water District filed and MR and Dissolution of TRO. The Judge never acted
on the latter
On December 21, 2000, Judge Labayen issued the assailed Decision granting the final injunction which allegedly
confirmed the previous preliminary injunction.
ISSUE: What is the proper characterization of RTCs order? TRO or Preliminary Injunction?

HELD: RTC issued a TRO.

The Court and the parties consistently referred to the order as TRO in all orders and pleadings
Previous undeviating references to it as a temporary restraining order, respondents cannot now consider it as a
preliminary injunction to justify the validity of the assailed Decision
Attendant facts and circumstances clearly show that the respondent trial court issued a temporary restraining
The fact that no expiration period was stated in the TRO does not transform it into a preliminary injunction
The twenty (20)-day period provided by the Rules of Court should be deemed incorporated in the Order
where there is an omission to do so. It is because of this rule on non-extendibility that respondent City
was prompted to move that hearings be set for its application of a preliminary injunction. Respondent
City cannot take advantage of this omission by respondent trial court

The Court also differentiated the 3 below:

Injunction (main action) Preliminary Injunction Temporary Restraining

Order (Rule 58)

Main action provisional remedy only issued to preserve the status

cannot exist except only as part quo until the hearing of the
or an incident of an independent application for preliminary
action or proceeding injunction which cannot be
issued ex part

seeks a judgment embodying a sole object: to preserve the

final injunction status quo until the merits can be

granted at any stage of an action

or proceeding prior to the
judgment or final order

Court needs to dissolve it limited life: 20 days from date

otherwise it persists until it is of issue. NOT EXTENDABLE
dissolved or until the termination
of the action without the court BUT: If application for
issuing a final injunction preliminary injunction is
denied (even before the
20-day period), the
temporary restraining order
would be deemed
automatically vacated

If no action is taken by the

judge on the application for
preliminary injunction within
the said twenty (20) days, the
temporary restraining order
would automatically expire
on the 20th day by the sheer
force of law, no judicial
declaration to that effect
being necessary.

(18) China Banking Corp v Co GR 174569 - KUNG

Petitioner China Banking Corporation sold a petitioner-spouses Joey and Mary Jeannie Castro (the Castro spouses).
It sold two other lots also located in the same place to petitioner-spouses Richard and Editha Nogoy (the Nogoy spouses).
Co and his siblings entered into a joint venture with respondent Three Kings Construction and Realty Corporation for
the development of the Northwoods Estates, a subdivision project. For this purpose, they contracted the services of respondent,
Engineer Dale Olea.
On November 28, 2003, petitioners, wrote respondents asking them to stop constructing the wall, and remove all
installed construction materials and restore the former condition, which they (petitioners) claimed to be a road lot. They also
claimed that the construction obstructed and closed the only means of ingress and egress of the Nogoy spouses and their
family, and at the same time, caved in and impeded the ventilation and clearance due the Castro spouses residential house.
Petitioners demand remained unheeded, prompting them to file before the Regional Trial Court (RTC) of San
Fernando, Pampanga and filed a complaint for injunction, restoration of road lot/right of way and damages with prayer for
temporary restraining order and/or writ of preliminary injunction.


Plaintiffs failed to prove that they will be prejudiced by the construction of the wall. The ocular
inspection showed that they will not lose access to their residences. As a matter of fact, lot 3783-E is
not being used as an access road to their residences and there is an existing secondary road within
St. Benedict Subdivision that serves as the main access road to the highway. With respect to the
blocking of ventilation and light of the residence of the Sps. Castro, suffice it to state that they are not
deprived of light and ventilation. The perimeter wall of the defendants is situated on the left side of the
garage and its front entrance is still open and freely accessible.

Their Motion for Reconsideration having been denied, petitioners filed a petition for certiorari before the Court of Appeals, which
dismissed the same and denied their subsequent Motion for Reconsideration.

ISSUE: W/N Denial of Injunction is Correct

It is settled that the grant of a preliminary mandatory injunction rests on the sound discretion of the court, and the
exercise of sound judicial discretion by the lower court should not be interfered with except in cases of manifest abuse.

It is likewise settled that a court should avoid issuing a writ of preliminary mandatory injunction which would
effectively dispose of the main case without trial.

In the case at bar, petitioners base their prayer for preliminary mandatory injunction on Section 44 of Act No. 496 (as
amended by Republic Act No. 440), Section 50 of Presidential Decree 1529, and their claim that Lot No. 3783-E is a road lot.

To be entitled to a writ of preliminary injunction, however, the petitioners must establish the following requisites: (a)
the invasion of the right sought to be protected is material and substantial; (b) the right of the complainant is clear and
unmistakable; and (c) there is an urgent and permanent necessity for the writ to prevent serious damage.

Since a preliminary mandatory injunction commands the performance of an act, it does not preserve the status quo
and is thus more cautiously regarded than a mere prohibitive injunction. Accordingly, the issuance of a writ of preliminary
mandatory injunction is justified only in a clear case, free from doubt or dispute. When the complainants right is thus doubtful or
disputed, he does not have a clear legal right and, therefore, the issuance of injunctive relief is improper.
(19) Estares v CA GR 144755 - MAGSUMBOL
D: Generally, injunction is a preservative remedy for the protection of substantive rights or interests. It is not a cause of action in
itself but merely a provisional remedy, an adjunct to a main suit. The controlling reason for the existence of the judicial power to
issue the writ is that the court may thereby prevent a threatened or continuous irremediable injury to some of the parties before
their claims can be thoroughly investigated and advisedly adjudicated. It is to be resorted to only when there is a pressing
necessity to avoid injurious consequences which cannot be remedied under any standard of compensation.

F: Petitioner Spouses Eliseo F. Estares and Rosenda P. Estares (Estares spouses for brevity) filed a complaint for Damages
and Preliminary Prohibitory Injunction against private respondent Prominent Lending & Credit Corporation (PLCC) before the
RTC of Bian Laguna.
Allegations: Estares spouses obtained a loan from PLCC for P800k secured by a real estate mortgage (REM) over a
363-square meter parcel of land with improvements covered by a TCT; the promissory note (PN) and the REM were
falsified because they affixed their signatures on two blank documents
Estares spouses sought to declare as null and void the PN and the REM for not reflecting their true agreement.

In the interim, they prayed for a temporary restraining order (TRO) and/or writ of preliminary injunction to enjoin PLCC from
taking possession of the mortgaged property and proceeding with the extrajudicial sale.
RTC issued a TRO in favor of the Estares spouses. The parties subsequently agreed to maintain the status quo until
August 20, 1999.

On August 6, 1999, PLCC filed its Answer with Counterclaim and opposed the prayer for restraining order on the ground that
there is no factual and legal basis for its issuance since the Estares spouses fear of eviction is false.

At the hearing on the Estares spouses application for a writ of preliminary injunction
Rosenda P. Estares testified that: the loan proceeds of P637,000.00, received on January 12, 1998, was used in the
improvement and renovation of their boarding house; they did not question PLCC in writing why they only received
P637,000.00; when they received the Statement of Account, they did not question the figures appearing therein; when
they received PLCCs demand letter, they went to the formers office not to question the loans terms and conditions but
merely to request for extension of three months to pay their obligation. They adduced in evidence the promissory note,
real estate mortgage, statement of account, petition for extrajudicial foreclosure and the notice of extrajudicial sale. The
Estares spouses then rested their case.
PLCC presented its manager, Rey Arambulo, who testified that the Estares spouses were duly apprised of the terms
and conditions of the loan, including the rate of interest, penalties and other charges, in accordance with the Truth in
Lending Act or Republic Act No. 3765. It submitted the same evidence offered by the Estares spouses, along with the
latters credit application, the credit investigation report, the receipts PLCC issued, and the disclosure statement on the

RTC denied the Estares spouses application for a writ of preliminary injunction, holding that the latter failed to establish the facts
necessary for an injunction to issue.

Estares spouses filed an MR. During the hearing on the MR, Eliseo P. Estaresmoved that he be allowed to testify on the
circumstances of the loan
RTC denied it, and deemed it best that he be presented during the trial on the merits.
RTC denied the MR

Estares spouses filed a petition for certiorari and prohibition in the CA ascribing grave abuse of discretion upon the RTC.
CA issued a Resolution requiring the PLCC to file its comment to the petition.
The action on the Estares spouses application for a TRO and writ of preliminary injunction was deferred and held in
abeyance until after receipt of the comment.

MEANWHILE, with no restraining order enjoining him, Sheriff Magat conducted an auction sale, with PLCC as highest bidder for

CA dismissed the petition for lack of merit holding that the trial court did not abuse its discretion in denying the Estares spouses
application for a writ of preliminary injunction since the latter failed to prove the requisites for the issuance thereof.

I: W/N CA and RTC erred in not granting the writ of preliminary injunction?
Estares spouses insist that they firmly established their right to injunctive relief. They claim that the PN, credit
application, disbursement voucher, disclosure statement and real estate mortgage are falsified; the PN is not reflective
of the true amount of the loan, as well as the term, interest and charges thereon; the P126,362.28 represent additional
charges, not as part of the loan, that were not agreed upon prior to or before the consummation of the loan; and the
amount of the loan and rate of interest stated in the falsified promissory note are fictitious or simulated.

H: NO. The application of the writ rests upon an alleged existence of an emergency or of a special reason for such an order
before the case can be regularly heard, and the essential conditions for granting such temporary injunctive relief are that the
complaint alleges facts which appear to be sufficient to constitute a cause of action for injunction and that on the entire showing
from both sides, it appears, in view of all the circumstances, that the injunction is reasonably necessary to protect the legal rights
of plaintiff pending the litigation.

The Estares spouses had the burden in the trial court to establish the following requirements for them to be entitled to
injunctive relief: (a) the existence of their right to be protected; and (b) that the acts against which the injunction is
to be directed are violative of such right. To be entitled to an injunctive writ, the petitioner must show, inter alia, the
existence of a clear and unmistakable right and an urgent and paramount necessity for the writ to prevent serious
damage. Thus, an injunctive remedy may only be resorted to when there is a pressing necessity to avoid injurious
consequences which cannot be remedied under any standard compensation.

In the present case, the Estares spouses failed to establish their right to injunctive relief. They do not deny that they are indebted
to PLCC but only question the amount thereof. Their property is by their own choice encumbered by a real estate mortgage.
Upon the nonpayment of the loan, which was secured by the mortgage, the mortgaged property is properly subject to a
foreclosure sale.

Rosendas testimony sealed the fate of the necessity of the writ of preliminary injunction. She admitted that: they did not question
PLCC in writing why they only received P637,000.00; they did not question the figures appearing in the Statement of Account
when they received it; and, when they received PLCCs demand letter, they went to the former's office not to question the loans
terms and conditions but merely to request for extension of three months to pay their obligation. She acknowledged that they
only raised the alleged discrepancy of the amount loaned and the amount received, as well as the blank documents which they
allegedly signed, after PLCC initiated the foreclosure proceedings.

It must be stressed that the assessment and evaluation of evidence in the issuance of the writ of preliminary injunction involve
findings of facts ordinarily left to the trial court for its conclusive determination. As such, a trial courts decision to grant or to deny
injunctive relief will not be set aside on appeal unless the court abused its discretion. In granting or denying injunctive relief, a
court abuses its discretion when it lacks jurisdiction, fails to consider and make a record of the factors relevant to its
determination, relies on clearly erroneous factual findings, considers clearly irrelevant or improper factors, clearly gives too much
weight to one factor, relies on erroneous conclusions of law or equity, or misapplies its factual or legal conclusions.
In the present case, the Estares spouses clearly failed to prove that they have a right protected and that the acts against which
the writ is to be directed are violative of said right. Hence, the Court of Appeals did not commit a grave abuse of its discretion
amounting to excess or lack of jurisdiction in dismissing petitioners petition for certiorari.

(20) Buyco v Baraquia GR 177486 (December 21, 2009) - NIDEA

Facts: Baraquia filed before the RTC a complaint against the Buycos for the establishment of a permanent right of way,
injunction and damages with preliminary injunction and temporary restraining order, to enjoin the Buycos from closing off a
private road within their property which he has been using to go to and from the public highway to access his poultry farm.

The Buycos died during the pendency of the case, and were substituted by Purisimo Buyco and his brother Gonzalo.
RTC granted Baraquias application for preliminary injunction, but dismissed the complaints for failure to establish the
concurrence of the essential requisites for the establishment of an easement of right of way. It accordingly lifted the writ of
preliminary injunction.

Baraquia filed a notice of appeal of the trial courts decision.

Baraquia later filed with the trial court a motion to cite Buyco and his brother Gonzalo in contempt, alleging that they had closed
off the subject road, thus violating the writ of preliminary injunction. The trial court held that the decision had not yet become final
and executory, hence, the writ of preliminary injunction remained to be valid, efficacious and obligatory, rendering Buycos act of
closing the road an indirect contempt of court. It thus declared Buyco and his brother in contempt of court.

Buyco moved for reconsideration, contending that a preliminary injunction, once quashed, ceases to exist, and that he and his
brother cannot be held guilty of indirect contempt by mere motion.

The trial court granted the motion for reconsideration, ruling that Buyco and his brother cannot be held in contempt of court by
mere motion and not by verified petition.

Issue: whether a writ of preliminary injunction remains valid until the decision annulling the same attains finality

Ruling: No. A writ of preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or
final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It is merely a provisional
remedy, adjunct to the main case subject to the latters outcome. It is not a cause of action in itself. Being an ancillary or auxiliary
remedy, it is available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain
rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case.

The writ is provisional because it constitutes a temporary measure availed of during the pendency of the action and it is ancillary
because it is a mere incident in and is dependent upon the result of the main action.

It is well-settled that the sole object of a preliminary injunction, whether prohibitory or mandatory, is to preserve the status quo
until the merits of the case can be heard. It is usually granted when it is made to appear that there is a substantial controversy
between the parties and one of them is committing an act or threatening the immediate commission of an act that will cause
irreparable injury or destroy the status quo of the controversy before a full hearing can be had on the merits of the case.

Indubitably, in the case at bar, the writ of preliminary injunction was granted by the lower court upon respondents showing that
he and his poultry business would be injured by the closure of the subject road. After trial, however, the lower court found that
respondent was not entitled to the easement of right of way prayed for, having failed to prove the essential requisites for such
entitlement, hence, the writ was lifted.

The present case having been heard and found dismissible as it was in fact dismissed, the writ of preliminary injunction is
deemed lifted, its purpose as a provisional remedy having been served, the appeal therefrom notwithstanding.

There being no indication that the appellate court issued an injunction in Baraquias favor, the writ of preliminary injunction
issued was automatically dissolved upon the dismissal of the Civil Case.

(21)Heirs of the late JBL Reyes v CA 338 S 282 - PAJA

F: This case stemmed from a contract of lease between petitioners and respondent, MMB, Inc. In the contract, there was a
provision that allowed the lessors to cancel the lease for noncompliance or violation of any of the conditions stipulated therein.
Finding that the lessees had violated those conditions, the lessors sent a letter to the lessee cancelling the contract of lease.
The lessors then filed a complaint for unlawful detainer against the lessee for breach of the contract of lease. In its Answer, the
lessee (MMB, Inc.) did not deny the violations but questioned the validity of the extrajudicial rescission of the contract of lease.
The MTC rendered a decision in favor of petitioners who then filed a motion for execution of the judgment of eviction, which was
The lessee appealed the decision to the RTC, Pasay City, Branch 113. However, the lessee failed to file their appeal
memorandum on time, so the court dismissed the appeal. The lessee then filed an appeal to the CA. The CA issued a TRO
against the execution of the ejectment. However, the lessee withdrew its appeal, which the CA allowed. The lessee then filed a
petition for annulment of the ejectment decision before the RTC Pasay City Branch 231, on the ground that the MTC had no
jurisdiction over the ejectment case and prayed for a TRO and/or preliminary injunction against the execution of the ejectment
decision. The TRO was not granted. The lessor filed a MTD the petition for annulment of the ejectment decision.
The lessee then filed another petition, this time for certiorari and mandamus with the CA, complaining about the sub-silencio
denial by the lower court of their application for injunctive relief. The CA gave notice to the lessors to file their comment and in
the meantime restrained them from enforcing the writ of execution. The resolution granting the TRO or preliminary injunction was
signed by only two members of the CA. After the TRO expired, the lessors proceeded with demolishing the improvements on the
property. The lessee filed motions for renewal of the TRO , but these were not granted. The lessee filed another case with the
CA seeking to set aside the order of the RTC Pasay Branch 231 dismissing the action and praying for another TRO against the
execution of the ejectment. The lesee then filed a petition for TRO with the RTC Branch 110 Pasay City to enjoin the MTC
Branch 45, Pasay City and the sheriff from enforcing the writ of execution. The CA rendered a decision in favor of the lessee and
ordered that the lessor restore the property into the possession of the lessee. That same day, the lessee filed a motion for
execution pending appeal. The CA granted the motion. The lessee also filed motions to cite lessors in contempt and motion to
stop demolition. The lessors filed a petition for review with the SC. The CA granted the motion for execution pending appeal and
the motion to cite lessors in contempt. It designated a special sheriff to enforce the writ and on the same day evicted the lessors
from the premises and restored possession in favor of the lessee. The lessors filed a petition for certiorari to nullify the resolution
of the CA allowing executing pending appeal and its finding the lessors guilty of indirect contempt.

I1: Whether or not any member of the CA may issue preliminary injunction or TRO?
I2: Whether or not the lessors violated a TRO and were validly cited in contempt by the CA?

H+R1: Yes, but only in case of extreme emergency and in the tradition of the Supreme Court, the Court en banc or division
ratifies or confirms the act of the single justice at the very next session of the Court. Incidentally, the resolution was signed by
only two members of the Court of Appeals, Special Fourth Division, namely, Justice Demetrio G. Demetria, ponente, and Justice
Ramon A. Barcelona, member, concurring. Justice Omar U. Amin, member, did not sign. Hence, the resolution is void, which the
division clerk of court should not have received for filing, much less served on the parties. By law, the attendance of three
members of the Court of Appeals shall constitute a quorum for the sessions of a division. The unanimous vote of three members
of a division shall be necessary for the pronouncement of a decision, or final resolution which shall be reached in consultation
before the writing of the opinion by any member of the division.This rule applies to interlocutory resolutions.

H+R2: No. The TRO had lapsed after 60 days. No more restraining order was in effect until the court decided the case on its
merits. Hence, petitioners acted in good faith in the exercise of their proprietary rights. There was no willful disobedience to a
lawful order. Petitioners were not guilty of contempt.

(22)Brocka v Enrile 192 S 182 - PEREZ

Doctrine:Criminal prosecution may be stopped if preliminary investigation conducted hastily

Petitioners were arrested on January 28, 1985 by elements of the Northern Police District following the forcible and
violent dispersal of a demonstration held in sympathy with the jeepney strike called by the Alliance of Concerned
Transport Organization (ACTO). Thereafter, they were charged with Illegal Assembly in Criminal Cases Nos. 37783,
37787 and 37788 with Branch 108, Regional Trial Court, NCJR, Quezon City.2
Except for Brocka, et al. who were charged as leaders of the offense of Illegal Assembly and for whom no bail was
recommended, the other petitioners were released on bail of P3,000.00 each. Brocka, et al.'s provisional release was
ordered only upon an urgent petition for bail for which daily hearings from February 1-7, 1985 were held.
However, despite service of the order of release on February 9, 1985, Brocka, et al. remained in detention, respondents
having invoked a Preventive Detention Action (PDA) allegedly issued against them on January 28, 1985 (p. 6, Rollo).
Neither the original, duplicate original nor certified true copy of the PDA was ever shown to them (p. 367, Rollo).
Brocka, et al. were subsequently charged on February 11, 1985 with Inciting to Sedition and , without prior notice to
their counsel. The original informations filed recommended no bail. This is the narration of Brocka re the inquest:
The 'sham' character of the inquest examination concocted by all respondents is starkly bizarre when we
consider that as early as 10:30 A.M. today, February 11, 1985, Benjamin Cervantes was able to contact
undersigned petitioner by phone informing counsel that said Benjamin Cervantes and the 4 other persons who
are the subjects of this petition will be brought before the Quezon City Fiscal at 2:30 for undisclosed reasons:
subsequently, another phone call was received by petitioning counsel informing him that the appearance of
Benjamin Cervantes et al. was to be at 2:00 P.M. When petitioning counsel arrived in the office of Assistant City
Fiscal Arturo Tugonon, the complainants' affidavits had not yet been received by any of the panel of three
assistant city fiscals, although the five persons under detention were already in the office of said assistant fiscal
as early as 2:00 P.M. It was only at 3:00 when a representative of the military arrived bringing with him alleged
statements of complainants against Lino Broka (sic) et al. for alleged inciting to sedition, whereupon
undersigned counsel asked respondent Colonel Agapito Abad 'who ordered the detained persons to be brought
to the office of Assistant Fiscal Arturo Tugonon since there were no charges on file;' and said Colonel Agapito
Abad said aloud: 'I only received a telephone call from Colonel Arzaga about 11:00 A.M. to bring the detained
persons todayI am only the custodian.' At 3:15, petitioning counsel inquired from the Records Custodian
when the charges against Lino Broka (sic) had been officially received and he was informed that the said
charges were never coursed through the Records Office.
Issue: Whether or not the prosecution of the criminal cases for Inciting to Sedition may lawfully be enjoined

Held Yes. Indeed, the general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or final.
There are however exceptions, among which are:
"a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25,
1967, 19 SCRA 95); "b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions
(Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981,
104 SCRA 607); "c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202); "d. When the
acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62); "e. Where the prosecution is under an invalid
law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); "f. When double
jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140); "g. Where the court has no jurisdiction over
the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616); "h. Where it is a case of persecution rather than
prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960); "i. Where the charges are manifestly false and motivated
by the lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October
8,1962; Cf. Guingona, et al. vs. City Fiscal, L60033, April 4,1984,128 SCRA 577); and "j. When there is clearly no prima facie
case against the accused and a motion to quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February
18, 1985, 134 SCRA 438). "7.
Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez
vs. Castelo, L-6374, August 1, 1953)."
We, therefore, rule that where there is manifest bad faith that accompanies the filing of criminal charges, as in the instant case
where Brocka, et al. were barred from enjoying provisional release until such time that charges were filed, and where a sham
preliminary investigation was hastily conducted, charges that are filed as a result should lawfully be enjoined.

(23)Medina v Greenfield Development GR 140228 - SASAKI

PETITIONERS are the grandchildren of Pedro Medina from two marriages.
In his 1st marriage to Isadora San Jose, Pedro sired three children: Rafael, Rita and Remegia;
In his 2nd marriage (to Natalia Mullet), Pedro had five: Cornelio, Brigida, Balbino, Crisanta and Rosila
Pedro, his brother Alberto and his niece Nazaria (Albertos daughter) executed a notarized Contract to Sell in favor of
RESPONDENT Greenfield Development Corporation over a parcel of land located in Muntinlupa City
A notarized Deed of Sale covering said property was subsequently entered in favor of RESPONDENT
signed by Pedro, Cornelio, Brigida, Balbino, Gregoria, Crisanta, Rosila, Alberto, and Nazaria, as vendors
Thereafter, a notarized Deed of Absolute Sale with Mortgage was executed
Signing as vendors were Pedro, (same people above)
RESPONDENT was able to register in its name the title to the two parcels of land
These properties were consolidated with other lots and were eventually registered in the name of RESPONDENT
Later, PETITIONERS instituted an action for annulment of titles and deeds, reconveyance, damages with preliminary
injunction and restraining order, against RESPONDENT and the RD
PETITIONERS maintain that the deeds of sale on these properties were simulated and fictitious, and the
signatures of the vendors therein were fake.
PETITIONERS caused an adverse claim to be annotated on the titles.
After discovering the annotation, RESPONDENT constructed a fence on the property and posted security personnel,
barring their ingress and egress.
PETITIONERS sought, among others, the issuance of a temporary restraining order and a writ of preliminary injunction
NULLIFIED the RTCs decision
W/N the RTC erred in granting injunctive relief


YES! Injunction NOT PROPER!

Section 3, Rule 58 of the Rules of Court:

SEC. 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the
commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a
limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would
probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening or is attempting to do, or is procuring or suffering to be
done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or
proceeding, and tending to render the judgment ineffectual.

The purpose of a preliminary injunction is to prevent threatened or continuous irremediable injury to some of the parties before
their claims can be thoroughly studied and adjudicated. Its sole aim is to preserve the status quo until the merits of the case can
be heard fully. Thus, to be entitled to an injunctive writ, the petitioner has the burden to establish the following requisites:

1) a right in esse or a clear and unmistakable right to be protected;

(2) a violation of that right;
(3) that there is an urgent and permanent act and urgent necessity for the writ to prevent serious damage.
Hence, PETITIONERS entitlement to the injunctive writ hinges on their prima facie legal right to the properties subject of the
present dispute. The Court notes that the present dispute is based solely on the parties allegations in their respective pleadings
and the documents attached thereto.

We have on one hand, PETITIONERS bare assertion or claim that they are co-owners of the properties sold by their
predecessors to RESPONDENT, and on the other, RESPONDENTs claim of ownership supported by deeds of conveyances
and torrens titles in their favor.

From these alone, it is clear that PETITIONERS failed to discharge the burden of clearly showing a clear and unmistakable right
to be protected. Where the complainants right or title is doubtful or disputed, injunction is not proper. The possibility of
irreparable damage without proof of actual existing right is not a ground for an injunction.

PETITIONERS only have their own allegations and are yet to prove their claim. And as stated earlier, the only bases from which
the propriety of the injunction can be determined are their respective pleadings and documents. What tilt the balance in
RESPONDENTs favor are the notarized documents and the titles to the properties. The well-settled rule is that a document
acknowledged before a notary public enjoys the presumption of regularity. It is a prima facie evidence of the facts therein stated.
To overcome this presumption, there must be presented evidence that is clear and convincing. Absent such evidence, the
presumption must be upheld.

Equally pertinent is the rule that courts should avoid issuing a writ of preliminary injunction, which in effect, would dispose of the
main case without trial. The ground relied upon by the trial court in issuing the writ of preliminary injunction in this case is its
doubt over the acquisition of the properties by RESPONDENT. Such basis would be virtually recognizing PETITIONERS claim
that the deeds of conveyances and the titles are a nullity without further proof, to the detriment of the doctrine of presumption of
validity in favor of these documents. There would, in effect, be a prejudgment of the main case and a reversal of the rule on the
burden of proof since it would assume the proposition which the PETITIONERS are inceptively duty bound to prove.

5.3. Receivership
- When is receiver appointed?
- object is preservation of property subject matter of litigation
- powers of a receiver

(24)National Investment and Development Corp v Judge Aquino 163 S 153 - TABAG

- 2 petitions for certiorari and prohibition with PI, seeking to annul judges orders granting private respondent Batjak (a Fil-Am
corp manufacturing coconut oil and copra for export). for the appointment of receiver. Said order also denied petitioners MTD of
complaint filed by respondents. The second orde denied petitioners MRs. Petitions also want to prohibit judge from hearing or
conducting any further proceedings of the case.
- Backstory is in 1965, Batjaks financial condition deteriorated to the point of bankruptcy. They incurred indebtedness to some
private banks and PNB for 11M +. Thus, Batjak mortgaged its 3 coco-processing mills in Davao, Leyte, and Misamis Occidental
to Manila Bank, Republic Bank, and PCIBank.
- It also secure additional financial assistance from PNB 6M+. Terms and conditions of this agreement was accepted by
Batjak. Batjak got the investment, among other export advances.
- Unfortunately, Batjak became insolvent. Thus in 1967, PNB instituted extrajudicial foreclosure proceedings against the oil
mills of Batjak. PNB eventually transferred ownership of these mills to NIDC, a wholly-owned PNB subsidiary.
- In 1971, Batjak filed a special civil action for mandamus and PI against petitioners NIDC.
- Before court could act on related motions, Batjak filed a petition for receivership in lieu of PI and mandamus. This was
opposed by PNB and NIDC.
- MTD was filed by PNB and NIDC but denied. MR was also denied.

1. W/N MTD should be granted.
2. W/N Petition for Receivership so be granted.
1. YES. Court held in favor of NIDC and PNB. As a general rule, an order denying a motion to quash or to dismiss is
interlocutory and cannot be the subject of a petition for certiorari. The remedy of the aggrieved party in a denied motion to
dismiss is to file an answer and interpose, as defense or defenses, the objection or objections raised by him in said motion to
dismiss, then proceed to trial and, in case of adverse decision, to elevate the entire case by appeal in due course. However,
under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition and mandamus to question the
denial of a motion to dismiss or quash is considered proper, in the interest of more enlightened and substantial justice. Thus,
where there is patent grave abuse of discretion, in denying the motion to dismiss, as in the present case, this Court may
entertain the petition for certiorari interposed by the party against whom the said order is issued.
2. NO. A receiver of real or personal property, which is the subject of the action, may be appointed by the court when it appears
from the pleadings that the party applying for the appointment of receiver has an interest in said property.The right, interest, or
claim in property, to entitle one to a receiver over it, must be present and existing. As borne out by the records of the case, PNB
acquired ownership of two (2) of the three (3) oil mills by virtue of mortgage foreclosure sales. There can be no doubt, therefore,
that NIDC not only has possession of, but also title to the three (3) oil mills formerly owned by Batjak. The interest of Batjak over
the three (3) oil mills ceased upon the issuance of the certificates of title to PNB and NIDC confirming their ownership over the
said properties. The acquisition by PNB-NIDC of the properties in question was not made or effected under the capacity of a
trustee but as a foreclosing creditor for the purpose of recovering on a just and valid obligation of Batjak.

Moreover, the prevention of imminent danger to property is the guiding principle that governs courts in the matter of appointing
receivers. Under Sec. 1 (b), Rule 59 of the Rules of Court, it is necessary in granting the relief of receivership that the property or
fired be in danger of loss, removal or material injury. In the case at bar, Batjak in its petition for receivership, or in its amended
petition therefor, failed to present any evidence, to establish the requisite condition that the property is in danger of being lost,
removed or materially injured unless a receiver is appointed to guard and preserve it.

(25)Traders Royal Bank v IAC 273 S 521 - VELASCO

Deceased spouses Tayengco were the owners of properties under receivership of Traders Royal bank. The Court from a
previous case affirmed the validity of the appointment of Traders as receiver.

When the receivership proceeding terminated, Traders rendered a final accounting. It retained P219,016.24 as receivers fee,
which the RTC approved. The heirs of Tayengco assailed the RTC decision contending that Traders compensation should have
been charged against the losing party and not from the funds under the receivership.

CA ruled that Traders cannot deduct its fee from the funds under its receivership since this must be shouldered by the losing
party or equally apportioned among the parties-litigants.

Whether Traders can retain its receiver fees


Section 8, Rule 59 provides the manner in which a receiver shall be paid. It states that the court shall allow the receiver a
reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or
apportioned, as justice requires.

From the provision, it is clear that when the services of a receiver terminates, his compensation is to be charged against the
defeated party, or the prevailing litigant may be madef to share the expense, as justice required. The trial courts order approving
Traders compensation to be charged solely against the funds under its receivership is without legal justification.
5.4. Replevin
- nature of a replevin suit
- question involved is one of possession but ownership may be resolved if raised
- plaintiff (claim) and defendant (counterclaim) can petition for replevin

(26)Yang v Valdez 177 S 141 - ATIENZA

On 4 January 1985, respondent spouses Ricardo and Milagros Morante asked the RTC to General Santos to issue an order for
replevin to recover possession of two (2) Isuzu-cargo trucks against petitioner Thomas Yang and Manuel Yaphockun. According
to the spouses, they had actual use and possession of the two (2) cargo trucks, having acquired them during the period from
1982 to 1984. The trucks The trucks were, however, registered in the name of petitioner Thomas Yang who was the Treasurer in
the Morante spouses' business of buying and selling corn.

Respondents posted a bond for 560,000 00 executed by respondent Milagros Morante and Atty. Bayani Calonzo (counsel for
respondent spouses).

Court orders sheriff to recover the isuzu trucks and give possession back to the respondents on January 7, 1985.

On 10 January 1985, defendant Manuel Yaphockun filed a motion seeking repossession of the cargo trucks, and posted a
replevin counter-bond of P560,000.00. The respondent spouses reacted by amending their complaint on 13 January 1985 by
excluding Manuel Yaphockun as party-defendant (No responsive pleading yet). As such, court denied counter bond of
Yaphockun since he is no longer a party-defendant.

For his part, petitioner Yang filed a counter bond for 560,000 on January 25, 1985. This was denied for being filed out of time

Yang assailed the decisions of the RTC through certiorari on the following grounds:
(1) There is no tangible security, such as cash or property, given for the bond carried out by the respondents. Only an
undertaking to pay the bond.
(2) Dropping of Yaphockun was fraudulently made
(3) Title of the property is named under Thomas Yang and not to the spouses.
(4) Yang also questioned the denial of the counter-bond arguing that he only received summons on January 25, 1985.

ISSUE: WON There was valid repossession of the respondent spouses

(1) According to the SC, there is no need for a tangible property to secure a bond. A bond that is required to be given by law is
commonly understood to refer to an obligation or undertaking in writing that is sufficiently secured. It is a matter of discretion of
the Court to determine whether the bond is sufficient. Accordingly, the the replevin bond given by the respondent Morante
spouses was properly secured by the sureties themselves who declared their solvency and capacity to answer for the
undertaking assumed. Petitioner Yang never put in issue the financial capability of these two (2) sureties.

(2) .According to the SC, a person in actual or constructive possession of the goods sought to be replevied, should of should be
a party-defendant. At the same time, however, the respondent spouses, had the right to exclude or strike out the name of a party
previously impleaded from the complaint. There is no need for leave of court as no responsive pleading has yet been filed.
(3) The question of ownership is not tackled in Replevins. The provisional remedy of replevin is in the nature of a possessory
action. The applicant who seeks immediate possession of the property involved need not be holder of the legal title to the
property. It suffices, if at the time he applies for a writ of replevin, he is, in the words of Section 2, Rule 60, "entitled to the
possession thereof."

(4) Under Section 5, petitioner may "at any time before the delivery of the property to the plaintiff" require the return of the
property; in Section 6, he may do so, "within five (5) days after the taking of the property by the officer." Both these periods are
mandatory in character. The properties were taken on January 7, 1985. The counter-bond was filed on January 28,1985. The
issuance of summons does not affect the periods in Section 5 and 6.

(27)Adoma v Gatcheco 448 S 299 - BAUTISTA

As correctly found by the OCA, respondent sheriff deliberately failed to place complainant in possession of the vehicle after five
days from the implementation of the writ because the latter failed to give the whole amount he promised. Since the adverse
party did not object to the complainants bond nor posted a redelivery bond to recover possession of the vehicle taken under the
writ of replevin, respondent sheriff is under obligation to deliver the van to complainant. However, it took respondent sheriff 13
days before he released the vehicle to complainant, a clear violation of Section 6, Rule 60 of the 1997 Revised Rules of Civil
Procedure which providesSEC. 6. Disposition of property by sheriff.If within five (5) days after the taking of the property by
the sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse
party so objects and the court affirms its approval of the applicants bond or approves a new bond, or if the adverse party
requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved
bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff
must return it to the adverse party.

(28) Paat v CA 266 S 167 - BISNAR

A truck owned by Victoria De Guzman was seized by DENR personnel after the driver failed to produce the required
documents for the forest products found concealed in the truck.
De Guzman was given 15 days by the Community and Environment and Natural Resources Officer (CENRO) to give an
explanation why the truck should not be forfeited.
De Guzman failed to give an explanation.
The Regional Director of the DENR ordered the truck forfeited for having violated Sec. 68-A of PD No. 705 as amended
by EO 277. .
De Guzmans letter of reconsideration was also denied.
De Guzman appealed to the Secretary of the DENR.
Pending the appeal, however, De Guzman filed a suit for replevin.

Issue: Whether or not the suit for replevin will prosper?

Ruling: No.
A suit for replevin is founded solely on the claim that the defendant wrongfully withholds the property sought to be
It lies to recover possession of personal chattels that are unlawfully detained.
"To detain" is defined as to mean "to hold or keep in custody,"
It has been held that there is tortious taking whenever there is an unlawful meddling with the property,
or an exercise or claim of dominion over it, without any pretense of authority or right; this, without
manual seizing of the property is sufficient.
Under the Rules of Court, it is indispensable in replevin proceeding that the plaintiff must show by his own affidavit that
he is entitled to the possession of property, that the property is wrongfully detained by the defendant, alleging the cause
of detention, that the same has not been taken for tax assessment, or seized under execution, or attachment, or if so
seized, that it is exempt from such seizure, and the actual value of the property.
De Guzman miserably failed to convince this Court that a wrongful detention of the subject truck obtains in the instant
It should be noted that the truck was seized by the petitioners because it was transporting forest products
without the required permit of the DENR in manifest contravention of Section 68 of P.D. 705 as amended by
E.O 277.
Section 68-A of P.D. 705, as amended, unquestionably warrants the confiscation as well as the disposition by
the Secretary of DENR or his duly authorized representatives of the conveyances used in violating the provision
of forestry laws.
Evidently, the continued possession or detention of the truck by the DENR for administrative forfeiture
proceeding is legally permissible, hence, no wrongful detention exists in the case at bar.
Moreover, the suit for replevin is never intended as a procedural tool to question the orders of confiscation and forfeiture
issued by the DENR in pursuance to the authority given under P.D. 705, as amended.
Section 8 of the said law is explicit that actions taken by the Director of the Bureau of Forest Development
concerning the enforcement of the provisions of the said law are subject to review by the Secretary of DENR
and that courts may not review the decisions of the Secretary except through a special civil action for certiorari
or prohibition.

(29)Citibank v CA 304 S 679 - BOMBALES



Anama obtained a loan from Citibank and executed PN to pay Citibank P418k in 60 equal installments.
The PN provides that the loan is subject to 12% interest and if there would be changes in the condition of defendant
which will increase credit risk and upon default the entire amount will be immediately due and payable without notice or
demand .
To secure payment of the loan, Anama constituted a Chattel Mortgage of machineries and equipment on of the
conditions provides that xxx(c) The defendant appoints the plaintiff as his attorney-in-fact with authority to enter the
premises of the defendant and take actual possession of the mortgaged chattels without any court order, to sell said
property to any party xxxx
Anama later on failed to pay despite repeated demands. Petitioner filed a complaint for collection of unpaid balance of
P405k and delivery and possession of the chattels mortgage.
Anama denied the allegations in the complaint and alleged the remedy of replevin was improper and the writ of seizure
should be vacated;
RTC issued an Order of Replevin over the machineries and equipment covered by the Chattel Mortgage.
Actual delivery of possession thereof to petitioner did not take place because negotiations for an amicable settlement
between the parties were encouraged by the trial court. This was however, not finalized thus the RTC proceeded to try
the case on the merits.
Petitioner presented a Motion for the Issuance of an Alias Writ of Seizure, ordering the sheriff to seize the properties
involved and dispose of them in accordance with the Rules
Private respondent opposed the motion claiming, among others, (1) that Citibanks P400,000 replevin bond to
answer for damages was grossly inadequate; (2) that he was never in default to justify the seizure; xxx (4) that
his supposed obligations with Citibank were fully secured and his mortgaged properties are more than sufficient
to secure payment thereof; xx
The trial court issued an Order granting the Motion for Alias Writ of Seizure. Private respondent moved for
reconsideration of the aforesaid order but the same was denied. As a consequence, the sheriff seized subject
properties, dismantled and removed them from the premises where they were installed, delivered them to
petitioners possession and advertised them for sale at public auction.
Private respondent filed with the CA a Petition for Certiorari and Prohibition with Injunction. Finding that the trial
court acted with grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed
resolutions, the CA granted the petition, holding that the provisions of the Rules of Court on Replevin and
Receivership have not been complied with, in that (1) there was no Affidavit of Merit accompanying the
Complaint for Replevin; (2) the bond posted by Citibank was insufficient; and (3) there was non-compliance with
the requirement of a receivers bond and oath of office. Hence the present petition for certiorari with TRO by

1. W/N CA erred in finding that the issuance of writ of replevin was improper

2. W/N CA erred in finding that the complaint did not comply with the requirements of an affidavit of merit

3. W/N CA erred in finding that the bond posted by petitioner is insufficient

4. W/N CA erred in finding that petitioner did not comply with Section 5, Rule 59


1. No For erroneously issuing the alias writ of seizure without inquiring into the sufficiency of the replevin
bond and for allowing petitioner to assume receivership without the requisite oath, the Court of Appeals aptly
held that the trial court acted with grave abuse of discretion in dealing with the situation. Under the Revised
Rules of Court, the property seized under a writ of replevin is not to be delivered immediately to the plaintiff.
This is because a possessor has every right to be respected in its possession and may not be deprived of it
without due process. Petition DISMISSED.

2. Qualified yes. While petitioner is correct insofar as it contends that substantial compliance with the affidavit
requirement may be permissible pursuant to Section 2, Rule 60 of the ROC, petitioners complaint does notallege all
the facts that should be set forth in an affidavit of merit.

The Court held that the absence of an affidavit of merit is not fatal where the petition itself, which is under oath, recites
the following facts constitutive of the grounds for the petition: (1) that plaintiff owns the property particularly describing
the same, or that he is entitled to its possession; (2) wrongful detention by defendant of said property; (3) that the
property is not taken by virtue of a tax assessment or fine pursuant to law or seized under execution or attachment or, if
it is so seized, that it is exempt from such seizure; and the (4) the actual value of the property.

Although the complaint alleges that petitioner is entitled to the possession of subject properties by virtue of the chattel
mortgage executed by the private respondent, upon the latters default on its obligation, and the defendants alleged
wrongful detention of the same, the said complaint does not state that subject properties were not taken by virtue of a
tax assessment or fine imposed pursuant to law or seized under execution or attachment or, if they were so seized,
that they are exempt from such seizure. Then too, petitioner stated the value of subject properties at a probable value
of P200,000.00, more or less.
Although respondents defense of lack of affidavit of merit is meritorious, procedurally, such a defense is unfortunately
no longer available for failure to plead the same in the Answer as required by the omnibus motion rule.

3.Yes. ROC requires the plaintiff to give a bond, executed to the defendant in double the value of the property as
stated in the affidavit x x x . Since the valuation made by the petitioner has been disputed by the respondent, the lower
court should have determined first the actual value of the properties. It was thus an error for the said court to approve
the bond, which was based merely on the probable value of the properties. A replevin bond is intended to answer for
damages and to indemnify the defendant against any loss that he may suffer by reason of its being compelled to
surrender the possession of the disputed property pending trial of the action.

The remedies provided under Section 5, Rule 60, are alternative remedies. Conformably, a defendant in a replevin suit
may demand the return of possession of the property replevined by filing a redelivery bond executed to the plaintiff in
double the value of the property as stated in the plaintiffs affidavit within the period specified in Sections 5 and 6.
Alternatively, the defendant may object to the sufficiency of the plaintiffs bond, or of the surety or sureties thereon;
but if he does so, he cannot require the return of the property by posting a counter-bond pursuant to Sections 5 and 6.
The private respondent did not opt to cause redelivery of the properties to him by filing a counter-bond precisely
because he objected to the sufficiency of the bond posted by plaintiff. Therefore, he need not file a counter-bond or
redelivery bond.

4. No. CA found that the requirements of Section 5, Rule 59 on receivership were not complied with by the petitioner,
particularly the filing or posting of a bond and the taking of an oath. However, the old Rules of Court which was in effect
at the time this case was still at trial stage, a bond for the appointment of a receiver was not generally required of the
applicant, except when the application was made ex parte. CA was right in finding a defect in such assumption of
receivership in that the requirement of taking an oath has not been complied with.

(30)Smart Communications v Regina Astorga GR 148132 January 28, 2008 - FERNANDEZ

Facts: Astorga is employed by SMART in its marketing department. Smart outsourced its marketing department to another entity.
Astorga was terminated by SMART on ground of redundancy.

Astorga filed a complaint for illegal dismissal. In the meantime, SMART sent a letter to astorga demanding that she pay the current
market value of the Honda civic car, which was given to her under the companys car plan program, or to surrender the same to the
company. Astorga, however, failed and refused to do either, thus prompting SMART to file a suit for replevin with the Regional Trial
Court of Makati (RTC)

Astorga moved to dismiss the complaint on grounds of (i) lack of jurisdiction; (ii) failure to state a cause of action; (iii) litis pendentia;
and (iv) forum-shopping. Astorga posited that the regular courts have no jurisdiction over the complaint because the subject thereof
pertains to a benefit arising from an employment contract; hence, jurisdiction over the same is vested in the labor tribunal and not in
regular courts.
RTC held that it has jurisdiction over this replevin case. CA reversed RTC decision and held that he RTC do not have jurisdiction over
this case.

Issue: WON the RTC has jurisdiction over this case? Yes

Held: Replevin is an action whereby the owner or person entitled to repossession of goods or chattels may recover those goods or
chattels from one who has wrongfully distrained or taken, or who wrongfully detains such goods or chattels. It is designed to permit one
having right to possession to recover property in specie from one who has wrongfully taken or detained the property.[30] The term may
refer either to the action itself, for the recovery of personalty, or to the provisional remedy traditionally associated with it, by which
possession of the property may be obtained by the plaintiff and retained during the pendency of the action.[31]

That the action commenced by SMART against Astorga in the RTC of Makati City was one for replevin hardly admits of doubt.

In Basaya, Jr. v. Militante,[34] this Court, in upholding the jurisdiction of the RTC over the r eplevin suit, explained:

Replevin is a possessory action, the gist of which is the right of possession in the plaintiff. The primary relief sought
therein is the return of the property in specie wrongfully detained by another person. It is an ordinary statutory
proceeding to adjudicate rights to the title or possession of personal property. The question of whether or not a party has
the right of possession over the property involved and if so, whether or not the adverse party has wrongfully taken and
detained said property as to require its return to plaintiff, is outside the pale of competence of a labor tribunal and
beyond the field of specialization of Labor Arbiters.


The labor dispute involved is not intertwined with the issue in the Replevin Case. The respective issues raised
in each forum can be resolved independently on the other. In fact in 18 November 1986, the NLRC in the case before it
had issued an Injunctive Writ enjoining the petitioners from blocking the free ingress and egress to the Vessel and
ordering the petitioners to disembark and vacate. That aspect of the controversy is properly settled under the Labor
Code. So also with petitioners right to picket. But the determination of the question of who has the better right to take
possession of the Vessel and whether petitioners can deprive the Charterer, as the legal possessor of the Vessel, of that
right to possess in addressed to the competence of Civil Courts.

In thus ruling, this Court is not sanctioning split jurisdiction but defining avenues of jurisdiction as laid down
by pertinent laws.

The CA, therefore, committed reversible error when it overturned the RTC ruling and ordered the dismissal of the replevin case for lack
of jurisdiction.

5.5. Support pendete lite

- concept of support is that the applicant is entitled to it by reason of some relationship (say, marital or filial) with the adverse
- judgment of support is never final, it can be amended at any time as long as the obligation to support subsists
- Arts 194, 195, 201, 202 of Family Code

(31) Reyes v Ines-Luciano GR 48219 - FORTES-LEUNG

Manuel Reyes v. Judge Ines-Luciano, Celia Ilustre Reyes (1979)

Doctrine: Adultery of wife as a defense to action for support pendente lite must be established by competent evidence
Celia filed a complaint for legal separation from husband Manuel on the ground of attempt on her life (hinulug sya sa
hagdan with 13 flights, on a separate occasion, kicked her in the nape and almost hit her with steel pipe if not for
timely intervention of their driver)
Celia also filed for support for her and their children, pendente lite, to be taken from the conjugal property to which the
Court granted. CA affirmed the grant of support pendent lite
Celia and Manuel are majority stockholders of a mining corporation
Manuel filed petition for review on certiorari impugning the Order of Judge Ines-Luciano to give support to estranged
wife, Celia of P4K pendent lite.
o Manuel alleged that Celia committed adultery, hence, not entitled to support pendente lite
WON: Support pendent lite is proper? YES
Manuel did not present any evidence to prove the allegation that his wife, private respondent Celia IlustreReyes, had
committed adultery with any person
In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the merits of the
case, it being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to enable
it to justly resolve the application
In view of the merely provisional character of the resolution to be entered. Mere affidavits may satisfy the court to pass
upon the application for support pendente lite. It is enough that the facts be established by affidavits or other
documentary evidence appearing in the record
Considering the high cost of living due to inflation and the financial ability of the petitioner as shown by the documents of
record, We find that the amount of P4,000.00 a month granted by the respondent Judge as alimony pendente lite to the
private respondent is not excessive

(32)Lam v Chua GR 131286 - KUNG

March 11, 1994 Adriana filed a petition for declaration of nullity of marriage against Jose in PasayRTC on the ground of
psychological incapacity. They were married on January 13, 1984 and have one son, John Paul. The petition alleged:
o She claimed Jose was incapacitated to comply with the essential marital obligations of marriage but said
incapacity was not then apparent and became manifest only after the celebration of the marriage when he
frequently failed to go home, indulged in womanizing and irresponsible activities, mismanaging the CPG.
o To save what was left of their properties, she was forced to agree with Jose on the dissolution of their CPG and
the separation of present and future properties. It was approved by the MakatiRTC in a Decision dated
February 28, 1994.
o They had long been separated in bed and board; they have agreed that the custody of their child will be with her,
subject to Joses visitation rights.
Summons was duly served on Jose but no responsive pleading was filed by him.
The trial court issued an Order directing Asst. City Prosecutor Bonifacio Barrera to conduct an investigation to determine
whether or not there was collusion. His report stated that there seems to be no collusion between the parties
The lone witness was Adriana herself. She testified that her marriage was arranged by her parents the traditional
Chinese way. Jose very seldom came home, never worked for a living and instead kept asking for money from her to buy
his sports cars; that she was also the one spending for all the expenses of their only child. No evidence was presented
regarding the amount of support needed for John Paul nor the capacity of Jose to give support.
Adriana filed an Urgent Motion to Re-Open on the ground that she was able to secure additional new evidence which
were significant, material and indispensable. Motion granted.
The court admitted as evidence a Marriage Contract dated May 25, 1977 between Jose and one Celia Santiago, and
another Marriage Contract dated May 6, 1982 between Jose and one Evan Lock.
The RTC declared the marriage between Adriana and Jose null and void for being bigamous. Jose Lam was ordered to
give 20k monthly support to his son John Paul.
Jose filed an MR only insofar as the decision awarded monthly support since there was already a provision for support of
the child in the agreement approved by the MakatiRTC wherein he and Adriana agreed to contribute P250,000.00 each to a
common fund for the benefit of the child. However the same is to be increased as required, to be used solely and
exclusively for the benefit of their son.
MR denied. The agreement approved by the Makati RTC before the marriage was declared null and void ab initio by the
Pasay RTC, is of no moment and cannot limit and/or affect the support ordered by the latter court. CA affirmed. Hence this
petition for certiorari.

AWARD SUPPORT IN FAVOR OF THE CHILD. No the court is not barred.

2. WON the court exceeded its jurisdiction in declaring the nullity of the marriage. YES but Jose is estopped from questioning the

3. WON THERE IS BASIS FOR THE 20k AWARD FOR MONTHLY SUPPORT. No sufficient evidence. The SC deemed it proper
that the issue on support be resolved by the Pasay RTC where the claim for support of the child was initiated by Adriana.

RATIO for 1:

The provision on support under the approved compromise agreement cannot be considered final and res judicata. Thus the
court has authority to award support in an action for declaration of nullity of marriage.
The Pasay RTC and the CA are both correct insofar as they ruled that the amount of support is by no means permanent.
Judgment for support does not become final. The right to support is of such nature that its allowance is essentially provisional;
for during the entire period that a needy party is entitled to support, his or her alimony may be modified or altered, in accordance
with his increased or decreased needs, and with the means of the giver. It cannot be regarded as subject to final determination.
Any judgment for support is always subject to modification, depending upon the needs of the child and the capabilities of the
parents to give support.

RATIO FOR 2 & 3: However the Court notes four circumstances that taint the regularity of the proceedings and the decision
rendered by the trial court.

First, the only ground alleged in the petition is psychological incapacity without any prayer for the support of her child. Adriana
submitted the case for decision but moved to re-open which motion was allowed. She presented evidence on July 6 1994 and
also first claimed support for John Paul.
The petition of Adriana was substantially changed by the admission of the additional evidence. The ground for nullity was
changed from the psychological incapacity to the existence of previous marriages with an additional claim for support. Such
substantial changes were not reflected in the petition filed except the insertion of the handwritten phrase And for respondent to
support the child of petitioner in an amount this Honorable Court may deem just and reasonable at the ultimate paragraph of
the petition. Nothing on record shows that Jose was notified of the substantial changes.

A party who has been declared in default is entitled to service of substantially amended or supplemental pleadings. Considering
that in cases of declaration of nullity of marriage or annulment of marriage, there can be no default pursuant to the Revised
Rules of Court in relation to Article 48 of the Family Code, it is with more reason that Jose should be entitled to notice of all
A court cannot set itself in motion, nor has it power to decide questions except as presented by the parties in their pleadings.
Anything that is decided beyond them is coram non-judice and void. Therefore where a court enters a judgment or awards relief
beyond the prayer of the complaint or the scope of its allegations the excessive relief is not merely irregular but is void for want
of jurisdiction, and is open to collateral attack.
The appellate court also ruled that a judgment of a court upon a subject within its general jurisdiction, but which is not brought
before it by any statement or claim of the parties, and is foreign to the issues submitted for its determination, is a nullity.
Thus it is a serious error for the trial court to have rendered judgment on issues not presented in the pleadings as it was beyond
its jurisdiction to do so. The amendment of the petition to reflect the new issues and claims against Jose was, therefore,
indispensable so as to authorize the court to act on the issue of whether the marriage of Jose and Adriana was bigamous and
the determination of the amount that should have been awarded for the support of John Paul. When the trial court rendered
judgment beyond the allegations contained in the copy of the petition served upon Jose, the Pasay RTC had acted in excess of
its jurisdiction and deprived petitioner Lam of due process.
However Jose is estopped from questioning the declaration of nullity since he never questioned the same before the RTC or the

Second, the Pasay RTC did not give Jose an opportunity to be present on July 6 for the presentation of evidence and to refute
the same. Although copy of the motion was sent to Jose, the record does not show that he received it in due time; neither does it
show that he was notified of the subsequent hearing where Adriana presented the marriage certificates and claimed for the

Third, the records do not show that Jose was sent a copy of the Order granting Urgent Motion to Re-Open of Adriana and
forthwith allowed her to present her evidence.

Fourth, the evidence presented by Angelica on her claim for support is glaringly insufficient and cannot be made a valid basis
upon which the Pasay RTC could have determined the monthly amount of P20,000.00 for the support.
The amount of support to be awarded should be in proportion to the resources or means of the giver and the necessities of the
recipient,[1] pursuant to the Family Code, to wit:

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling
or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include
expenses in going to and from school, or to and from place of work.
Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately,
according to the reduction or increase of the necessities of the recipient and the resources or means of the person
obliged to furnish the same.

Thus the award of support must be based on the evidence presented before it. The evidence must prove the capacity or
resources of both parents who are jointly obliged to support their children as provided for under Article 195 of the Family Code;
and the monthly expenses incurred for the sustenance, dwelling, clothing, medical attendance, education and transportation of
the child.
In this case, the only evidence presented is her testimony which did not establish the amount needed by their child nor the
amount the parents are reasonably able to give:
Q - Considering the bigamous marriage contract by your husband with you, what do you want to request to the
Honorable Court?
A - I want to request the Court that the respondent be ordered to support my little boy.
Q - How much support do you want?
A - P20,000.00 to P25,000.00
Q - Is there a prayer for support?
A - None, Your Honor.
Court: Get the original copy of the complaint, add and sign it for the support of the boy.
The trial courts action of merely ordering in open court that a prayer for support be written and inserted in the petition does not
constitute proper amendment and notice upon petitioner Jose. Consequently, herein petitioner Jose was deprived of due