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UST - Civil Procedure Remedial Law General Principles Included PDF
UST - Civil Procedure Remedial Law General Principles Included PDF
UST - Civil Procedure Remedial Law General Principles Included PDF
Q: Distinguish substantive and remedial law C. RULE-MAKING POWER OF THE SUPREME COURT
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
9. DOCTRINE OF NON-INTERFERENCE OR
DOCTRINE OF JUDICIAL STABILITY
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
9. When strong public interest is involved; involving the status of the parties or suits
and involving the property in the Philippines
10. In quo warranto proceedings (Herrera, of non-resident defendants.
Vol. I, p. 268, 2007 ed.)
E. JURISDICTION OF COURTS
Note: The rule on exhaustion of administrative
remedies and doctrine of primary jurisdiction applies Q: Which court has jurisdiction over the following?
only when the administrative agency exercises quasi-
judicial or adjudicatory function (Associate A:
Communications and Wireless Services v. Dumalao, 1. Boundary dispute between municipalities
G.R. 136762, Nov. 21, 2002). RTCs are courts of general jurisdiction. Since
there is no legal provision specifically
governing jurisdiction over boundary disputes
8. EFFECT OF ESTOPPEL ON OBJECTIONS TO
between a municipality and an independent
JURISDICTION
component city of the same province, it
follows that RTCs have the power and
Q: What is the effect of estoppel by failure to
authority to hear and determine such
object lack of jurisdiction?
controversy (Municipality of Kananga v.
Madrona, G.R. No. 141375, Apr. 30, 2003).
A: The active participation of a party in a case is
tantamount to recognition of that court’s
2. Expropriation
jurisdiction and will bar a party from impugning the
It is within the jurisdiction of the RTC because
court’s jurisdiction. This only applies to exceptional
it is incapable of pecuniary estimation. It does
circumstances. (Francel Realty Corp. v. Sycip, 469
not involve the recovery of sum of money.
SCRA 424; Concepcion v. Regalado, GR 167988, Feb.
Rather, it deals with the exercise by the
6, 2007).
government of its authority and right to take
property for public use.
C. JURISDICTION OVER THE ISSUES
3. Labor dispute
Q: What is jurisdiction over the issues?
An action for damages for abuse of right as an
incident to dismissal is within the exclusive
A: It is the power of the court to try and decide
jurisdiction of the labor arbiter. But the labor
issues raised in the pleadings of the parties or by
arbiter has no jurisdiction for claims of
their agreement in a pre-trial order or those tried
damages based on quasi-delict which has no
by the implied consent of the parties. It may also be
reasonable connection with the employer-
conferred by waiver or failure to object to the
employee relations claims under the Labor
presentation of evidence on a matter not raised in
Code (Ocheda v. CA, G.R. No. 85517, Oct. 16,
the pleadings
1992).
D. JURISDICTION OVER THE RES OR PROPERTY IN
Note: Where no employer-employee relationship
LITIGATION exists between the parties and no issue involved
may be resolved by reference to the Labor Code,
Q: How is jurisdiction over the res acquired? other labor statutes or any collective bargaining
agreement, it is the regular courts that has
A: It is acquired either by: jurisdiction (Jaguar Security Investigation Agency
1. The seizure of the property under legal v. Sales, G.R. No. 162420, Apr. 22, 2008).
process.
2. As a result of the institution of legal 4. Forcible entry and unlawful detainer
proceedings, in which the power of the The MTC has exclusive original jurisdiction. In
court is recognized and made effective. such cases, when the defendant raises the
(Banco Español Filipino vs. Palanca, 37 question of ownership in his pleadings and the
Phil. 291). question of possession cannot be resolved
3. The court by placing the property of thing without deciding the question of ownership,
under its custody (custodia legis). the issue of ownership shall be resolved only to
Example: attachment of property. determine the issue of possession. All
4. The court through statutory authority ejectment cases are covered by the Rule on
conferring upon it the power to deal with Summary Procedure and are within the
the property or thing within the court’s jurisdiction of the inferior courts regardless of
territorial jurisdiction. Example: suits whether they involve questions of ownership.
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
The courts in ejectment cases may determine for reconsideration in accordance with Rule 45
questions of ownership whenever necessary to of the Rules of Court (Sec. 27, R.A. 6770).
decide the question of possession (Gayoso v.
Twenty-Two Realty Development Corp., G.R. 7. Public school teachers
No. 147874, July 17, 2006; Santiago v. Pilar Generally, the Ombudsman must yield to the
Development Corp., G.R. No. 153628, July 20, Division School Superintendent in the
2006). investigation of administrative charges against
public school teachers (Ombudsman v. Galicia,
5. Authority to conduct administrative G.R. No. 167711, Oct. 10, 2008).
investigations over local elective officials
and to impose preventive suspension 8. Enforcement of a money claim against a
over elective provincial or city officials local government unit
It is entrusted to the Secretary of Local Commission on Audit (COA) has the primary
Government and concurrent with the jurisdiction to pass upon the money claim. It is
Ombudsman upon enactment of R.A. 6770. within the COA's domain to pass upon money
There is nothing in the Local Government Code claims against the government or any subdivision
of 1991 to indicate that it has repealed, thereof as provided for under Section 26 of the
whether expressly or impliedly, the pertinent Government Auditing Code of the Philippines.
provisions of the Ombudsman Act (Hagad v. Courts may raise the issue of primary jurisdiction
Dadole, G.R. No. 108072, Dec. 12, 1995). sua sponte (on its own will or motion; means to
act spontaneously without prompting from
6. Appeals involving orders arising from another party) and its invocation cannot be
administrative disciplinary cases originating waived by the failure of the parties to argue it as
from the Office of the Ombudsman the doctrine exists for the proper distribution of
It may be appealed to the Supreme Court by power between judicial and administrative
filing a petition for certiorari within 10 days bodies and not for the convenience of the parties
from receipt of the written notice of the order, (Euro-Med Laboratories, Phil., Inc. v. Province of
directive or decision or denial of the motion Batangas, G.R. No. 148106, July 17, 2006).
1. SUPREME COURT
Concurrent
With CA
1. Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari,
mandamus against the following: prohibition and mandamus against the RTC and
a. NLRC under the Labor Code. lower courts.
Note: The petitions must first be filed with the CA, otherwise,
they shall be dismissed. (St. Martin Funeral Home v. CA, G.R.
No. 130866, Sept. 16, 1998).
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
2. COURT OF APPEALS
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
4. SANDIGANBAYAN
Q: Governor Charles of Tarlac was charged with accepting a car in exchange for the award of a
indirect bribery before the Sandiganbayan for series of contracts for medical supplies. The
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases,
agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special
cases in the interest of justice (Sec. 23, BP 129).
Appellate
GR: All cases decided by lower courts (MTC etc.) in their respective territorial jurisdictions.
XPN: Decisions of lower courts in the exercise of delegated jurisdiction.
Q: What is the test to determine whether an However, where the basic issue is something other
action is capable of pecuniary estimation? than the right to recover a sum of money, where
the money claim is purely incidental to, or a
A: The criterion is the nature of the principal action consequence of, the principal relief sought like
or the remedy sought. If it is primarily for the specific performance suits and in actions for
recovery of a sum of money, the claim is considered support, or for annulment of a judgment or
capable of pecuniary estimation, and whether foreclosure of mortgage, such actions are incapable
jurisdiction is in the MTCs or in the RTCs would of pecuniary estimation, and are cognizable
depend on the amount of the claim. exclusively by the RTCs (Barangay Piapi v. Talip,
G.R. No. 138248, Sept. 7, 2005).
6. FAMILY COURTS
4. Actions involving title to or possession of real property or a.Violations of traffic laws, rules and
any interest therein where the value or amount does not regulations;
exceed P20,000 or, in Metro Manila P50,000 exclusive of b. Violations of the rental law;
interest damages, attorney’s fees, litigation expense, and c. Violations of municipal or city ordinances;
costs; (2008 Bar Question) d. Violations of BP 22 (A.M. No. 00-11-01-SC);
5. Maritime claims where the demand or claim does not e. All other criminal cases where the penalty
exceed P300,000 or, in Metro Manila P400,000 (Sec. 33, BP is imprisonment not exceeding 6 months
129 as amended by R.A. 7691); and/or a fine of P 1,000 irrespective of
6. Inclusion or exclusion of voters (Sec. 138, BP 881); other penalties or civil liabilities arising
7. Those covered by the Rules on Summary Procedure: therefrom.
a. Forcible entry and unlawful detainer; 5. All offenses committed by public officers and
b. Other civil cases except probate where the total amount of employees in relation to their office, including
the plaintiff’s claims does not exceed P100,000 or, in Metro government-owned or –controlled
Manila P200,000 exclusive interest and costs (as amended corporations, and by private individuals
by A.M. No. 02-11-09-SC). charged as co-principals, accomplices or
8. Those covered by the Rules on Small Claims, i.e. actions for accessories, punishable with imprisonment not
payment of money where the claim does not exceed more than 6 years or where none of the
P100,000 exclusive of interest and costs. accused holds a position classified as “Grade
27” and higher (Sec. 4, P.D. 1606 as amended
by R.A. 8249).
Delegated
Cadastral or land registration cases covering lots where:
a. There is no controversy or opposition;
b. Contested but the value does not exceed P100,000 (Sec.
34, BP 129 as amended by R.A. 7691).
8. SHARIAH COURTS
Exclusive Original
1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim
Personal Laws;
2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills,
issuance of letters of administration or appointment of administrators or executors regardless of the nature or
aggregate value of the property;
3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which
law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and
processes in aid of its appellate jurisdiction.
Concurrent
With all civil courts
1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an
asylum;
2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except
those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit
Court; and
3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved
belongs exclusively to Muslims.
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
F. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND
BARANGAY CONCILIATION
Katarungang Pambarangay Law Rule on Small Claims Cases Rules on Summary Procedure
Purpose / Object
To effect an amicable settlement of To provide a simpler and more To achieve an expeditious and
disputes among family and barangay inexpensive and expeditious means inexpensive determination of the
members at the barangay level without of settling disputes involving purely cases defined to be governed by
judicial recourse and consequently help money claims than the regular civil the Rules on Summary Procedure
relieve the courts of docket congestion. process
(Preamble of P.D. 1508) (1999 Bar
Qestion)
Where to file
1. For disputes between residents of 1. Metropolitan Trial Courts 1. Metropolitan Trial Courts
the same barangay: the dispute must 2. Municipal Trial Courts in Cities 2. Municipal Trial Courts in Cities
be brought for settlement in the said 3. Municipal Trial Courts 3. Municipal Trial Courts
barangay. 4. Municipal Circuit Trial Courts 4. Municipal Circuit Trial Courts
2. For disputes between residents of
different but adjoining barangays
and the parties agree to submit their
differences to amicable settlement:
within the same city or municipality
where any of the respondents reside
at the election of the complainant.
3. For disputes involving real property
or any interest when the parties
thereto agree to submit their
differences to amicable settlement
by an appropriate lupon therein shall
be brought in the barangay where
the real property or larger portion
thereof is situated.
4. For disputes arising at the workplace
where the contending parties are
employed or at the institution where
such parties are enrolled for study
shall be brought in the barangay
where such workplace or institution
is located.
Cases Covered
Civil Cases
All disputes involving parties who Small claims cases – civil claims 1. All cases of forcible entry and
actually reside in the same city or which are exclusively for the unlawful detainer irrespective of
municipality may be the subject of the payment or reimbursement of a the amount of damages or unpaid
proceedings for amicable settlement in sum of money not exceeding rentals sought to be recovered.
the barangay. P100,000 exclusive of interest and Where attorney’s fees are
costs, either awarded, the same shall not
1. Purely civil in nature where exceed P20,000; and
the claim or relief prayed for 2. All other civil cases, except
by the plaintiff is solely for probate proceedings, where the
payment or reimbursement of total amount of plaintiff’s claim
sum of money, or does not exceed P100,000 or
2. The civil aspect of criminal does not exceed P200,000 in
actions, either filed before the Metro Manila, exclusive of
institution of the criminal interests and costs (A.M. No. 02-
action, or reserved upon the 11-09-SC, Nov. 25, 2005).
filing of the criminal action in
court, pursuant to Rule 111 of
the Revised Rules of Criminal
Procedure.
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
G. TOTALITY RULE
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A:
Action In Rem Action In Personam Action Quasi In Rem
Nature
A proceeding to subject the property A proceeding to enforce A proceeding to subject the property of
of such persons to the discharge of personal rights and obligations the named defendant or his interests
the claims assailed. brought against the person therein to the obligation or lien
burdening the property.
Purpose
A proceeding to determine the state An action to impose a Deals with the stauts, ownership or
or condition of a thing responsibility or liability upon liability of a particular property but
a person directly which are intended to operate on these
questions only as between the particular
parties to the proceedings and not to
ascertain or cut-off the rights or
interests of all possible claimants.
(Domagas vs. Jensen, 448 SCRA 663)
Scope
Directed against the thing itself Directed against particular
Directed against particular persons
Directed against the whole world persons
Required jurisdiction
Jurisdiction over the person of the Jurisdiction over the person of Jurisdiction over the person of the
defendant is not required. the defendant is required defendant is not required as long as
Jusrisdiction over the RES is required jurisdiction over the res is acquired
through publication in a newspaper
of general circulation.
Effect of judgment
Judgment is binding upon the whole Judgment is binding only upon Judgment will be binding only upon the
world. parties impleaded or their litigants, privies, successor in interest
successors-in-interest but the judgment shall be executed
against a particular property. The RES
involve will answer the judgment.
Example
1. Probate proceeding 1. Action for specific 1. Action for partition
2. Cadastral proceeding performance 2. Action to foreclose real estate
3. Land registration proceeding 2. Action for breach of mortgage attachment
contract
3. Action for ejectment
4. Action for a sum of money;
for damages (Riano, Civil
Procedure: A Restatement
for the Bar,p.130, 2009 ed.)
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS Note: When the causes of action accrue in favor of the
EFFECTS same plaintiff and against the same defendant, it is not
necessary to ask whether or not the causes of action
Q: What is splitting a cause of action? arose out of the same transaction or series of
transactions. Also a joinder of causes of action is only
A: It is the act of instituting two or more suits on permissive not compulsory, hence a party may desire
the basis of the same cause of action (Sec. 4, Rule to file a single suit for each of his claims.
2). It is the act of dividing a single or indivisible
cause of action into several parts or claims and Q: Is misjoinder of causes of action a ground for
bringing several actions thereon. It is a ground for dismissal?
the dismissal of others. The rule against splitting of A: No. A misjoined cause of action may, on motion
a cause of action aims to avoid multiplicity of suits, of a party or on initiative of the court, be severed
conflicting decisions and unnecessary vexation and and proceeded with separately (Sec. 6 Rule 2).
harassment of defendants. It applies not only to
complaints but also to counterclaims and cross- Q: The complaint filed before the RTC states two
claims. (1999 Bar Question) causes of actions, one for rescission of contract
and other for the recovery of 100, 000.00 both of
Note: An action for forcible entry should include not which arose out of the same transaction. Is the
only the plea for restoration of possession but also joinder of the two causes of action proper?
claims for damages arising out of the forcible entry
(Progressive Development Corporation, Inc. vs. CA, 301 A: Yes. Both are ordinary civil actions and thus,
SCRA 637; Riano, Civil Procedure: A Restatement for neither requires special rules. Since the action for
the Bar, p. 108, 2009 ed.) rescission falls under the jurisdiction of the RTC, the
joinder may be made in said court provided the
Q: What are the rules on splitting a single cause of venue lies therein (Sec. 5, Rule 2; 1996 Bar
action? Question; Riano, Civil Procedure: A Restatement for
the Bar, p.120, 2009 ed.)
A:
1. Prohibited by the Rules of Court. “A party C. PARTIES TO CIVIL ACTIONS
may not institute more than one suit for a
single cause of action.” (Sec.3, Rule 2) 1. REAL PARTIES IN INTEREST; INDISPENSABLE
2. The rule against splitting a single cause of PARTIES; REPRESENTATIVES AS PARTIES;
action applies not only to complaints but NECESSARY PARTIES; INDIGENT PARTIES;
also to counterclaims and cross-claims. ALTERNATIVE DEFENDANTS
(Mariscal vs. Court of Appeals, 311 SCRA 51)
Q: What are the kinds of parties in a civil action?
6. JOINDER AND MISJOINDER OF CAUSES OF
ACTION A:
1. Real parties in interest
Q: What is a joinder of causes of action? 2. Indispensable parties
3. Representatives as parties
A: It is the assertion of as many causes of action a 4. Necessary parties
party may have against another in one pleading 5. Indigent parties
alone (Sec. 5, Rule 2). 6. Pro-forma parties
Note: Joinder of causes of action must be subject to Q: Who is a real party in interest?
the following conditions:
1. The party shall comply with the rules on joinder A: He is the party who stands to be benefited or
of parties; injured by the judgment in the suit, or the party
2. The joinder shall not include special civil actions entitled to the avails of the suit (Sec. 2 Rule 3).
governed by special rules;
3. Where causes of action pertain to different Q: Distinguish an indispensable party from a
venues, the joinder may be allowed in the RTC necessary party.
provided one of the causes of action falls within
the jurisdiction of said court and venue lies
A:
therein
Indispensable Parties Necessary Parties
4. Where claims in all causes of action are for
Parties in interest A necessary party is one
recovery of money, the aggregate amount
without whom no final who is not indispensable but
claimed shall be the test for jurisdiction. (Sec 5,
determination can be who ought to be joined as a
Rule 2)
had of an action shall party if complete relief is to right to relief against one may be inconsistent with
be joined either as be accorded as to those a right to relief against the other (Sec. 13, Rule 3).
plaintiffs or already parties, or for a
defendants. (Sec.7, complete determination or Q: May an action be prosecuted in the name of
Rule 3) settlement of the claim other party other than the real party in interest?
subject of the action. (Sec.8,
Must be joined under Rule 3) A: No. Every action must be prosecuted and
any and all conditions
defended in the name of the real party-in-interest
because the court Note: Should be joined
whenever possible, the action (Sec. 2, Rule 3). Even where the action is allowed to
cannot proceed
can proceed even in their be prosecuted or defended by a representative
without him (Riano,
Civil Procedure: A absence because his interest party or someone acting in a fiduciary capacity, the
Restatement for the is separable from that of beneficiary shall be included in the title of the case
indispensable party (Ibid and shall be deemed to be a real party-in-interest
Bar, p. 224, 2009 ed.)
p.224) (Sec.3 Rule 3; Riano, p. 219, 2009 ed.)
No valid judgment if The case may be
they are not joined determined in court but the Note: An agent acting in his own name and for the
judgment therein will not benefit of an undisclosed principal may sue or be sued
Note: In the absence of resolve the entire without joining the principal except when the contract
an indispensable party controversy if a necessary involves things belonging to the principal.
renders all subsequent party is not joined
actions of the court null
and void for want of
Q: Who is an indigent party?
Note: Whenever in any
authority to act, not pleading in which a claim is
only as to the absent asserted a necessary party is
A: He is one who has no money or property
parties but even as to not joined, the pleader shall sufficient and available for food, shelter and basic
those present (Riano, set forth his name, if known, necessities for himself and his family. (Sec. 21 Rule
Civil Procedure: A and shall state why he is 3)
Restatement for the omitted. Should the court find
Bar, p. 221, 2009 ed.) the reason for the omission Note: Indigent litigants (a) whose gross income and that
unmeritorious, it may order of their immediate family do not exceed an amount
the inclusion of the omitted double the monthly minimum wage of an employee and
necessary party if jurisdiction (b) who do not own real property with a fair market value
over his person may be as stated in the current tax declaration of more than three
obtained. The failure to hundred thousand (P300,000.00) pesos shall be exempt
comply with the order for his from payment of legal fees. (Sec. 19, Rule 141).
inclusion, without justifiable
cause, shall be deemed a Q: What is the rule on indigent litigants?
waiver of the claim against
such party.
A: If the applicant for exemption meets the salary
The non-joinder of an indispensable or a necessary and property requirements under Sec. 19, Rule 141,
party is not by itself ipso facto a ground for the then the grant of the application is mandatory. On
dismissal of the action. The court should order the the other hand, when the application does not
joinder of such party and non-compliance with the satisfy one or both requirements, then the
said order would be a ground for the dismissal of the application should not be denied outright; instead,
action (Feria, Civil Procedure Annotated, Vol. I, p. 239, the court should apply the “indigency test” under
2001 ed.) Sec. 21, Rule 3 and use its sound discretion in
determining the merits of the prayer for exemption
Note: Parties may be dropped or added by order of the (Algura v. LGU of Naga, G.R. No. 150135, Oct. 30,
court on motion of any party or on its own initiative at 2006).
any stage of the action and on such terms as are just. Any
claim against a misjoined party may be severed and
Note: While the authority to litigate as an indigent
proceeded with separately. (Sec. 11, Rule 3)
party may be granted upon an ex parte application and
hearing, it may be contested by the adverse party at
any time before judgment is rendered (Sec. 21, Rule
Q: May a party sue the defendants in the 3).
alternative?
Q: What does the authority include, if one is
A: Yes. Where the plaintiff is uncertain against who authorized as an indigent party?
of several persons he is entitled to relief, he may
join any or all of them in the alternative, although a A: An exemption from the payment of:
1. Docket fees and other lawful fees
23
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
2. Transcript of stenographic notes. (Sec. 21, and allows the amendment of the complaint at any
Rule 3) stage of the proceedings, through motion or on
order of the court on its own initiative (Sec. 11, Rule
Note: The amount of the docket and other lawful fees 3; Republic v. Sandiganbayan, G.R. No. 152154, July
which the indigent was exempted from paying shall be 15, 2003). However, when the order of the court to
a lien on any judgment rendered in the case favorable implead an indispendable party goes unheeded, the
to the indigent, unless otherwise provided (Sec. 21, court may order the dismissal of the case. The court
Rule 3). is fully clothed with the authority to dismiss a
complaint due to the fault of the plaintiff as when,
The basis for the exemption from legal and filing fees is among others, he does not comply with the order
the free access clause embodied in Sec. 11, Art. III,
of the court (Sec. 3, Rule 17; Plasabas vs. CA, GR No.
1987 Constitution. (Re: Query of Mr. Roger C.
166519; Riano, Civil Procedure: A Restatement for
Prioreschi re exemption from legal and filing fees of
The Good Shepherd Foundation, Inc., A.M. No. 09-6-9-
the Bar p. 223, 2009 ed.)
SC, Aug. 19, 2009)
4. CLASS SUIT
Q: Who is a pro forma party?
Q: What is a class suit?
A: One who is joined as a plaintiff or defendant, not
because such party has any real interest in the A: It is an action where one or some of the parties
subject matter or because any relief is demanded, may sue for the benefit of all if the requisites for
but merely because the technical rules of pleadings said action are complied with. (Riano, Civil
require the presence of such party on the record. Procedure: A Restatement for the Bar, p. 236, 2009
(Samaniego vs. Agulia, G.R. No. 125567, June 27, ed.)
2000)
Q: What are its requisites?
2. COMPULSORY AND PERMISSIVE JOINDER OF
PARTIES A:
1. Subject matter of the controversy is one
Q: When is there a compulsory joinder of parties? of common or general interest to many
persons;
A: The joinder of parties becomes compulsory when 2. Parties affected are so numerous that it is
the one involved is an indispensable party. Clearly, impracticable to bring them all before the
the rule directs a compulsory joinder of court;
indispensable parties, (Riano, Civil Procedure: A 3. Parties bringing the class suit are
Restatement for the Bar, p. 222, 2009 ed.) sufficiently numerous or representative of
the class and can fully protect the
Q: What are the requisites of permissive joinder of interests of all concerned (Sec. 12 Rule 3);
parties? and
4. Representatives sue or defend for the
A: benefit of all (Sec.12, Rule 3)
1. Right to relief arises out of the same
transaction or series of transactions 5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL
(connected with the same subject matter PERSONALITY
of the suit);
2. There is a question of law or fact common Q: What is the rule on suits against entities
to all the plaintiffs or defendants; and without juridical personality?
3. Joinder is not otherwise provided by the
provisions of the Rules on jurisdiction and A: When two or more persons not organized as an
venue (Sec. 6, Rule 3). entity with juridical personality enter into a
transaction, they may be sued under the name by
3. MISJOINDER AND NON-JOINDER OF PARTIES which they are generally or commonly known. In
the answer of such defendant, the names and
Q: Is the misjoinder or non-joinder of an addresses of the persons composing said entity
indispensable party a ground for the dismissal of must all be revealed (Sec. 15, Rule 3).
the action or annulment of judgment?
Note: Persons associated in an entity without juridical
personality may be sued under the name by which they
A: No. The Rules prohibit the dismissal of a suit on are generally or commonly known, but they cannot sue
the ground of non-joinder or misjoinder of parties under such name.
Question)
6. EFFECT OF DEATH OF PARTY LITIGANT
Establishes a relation Establishes a relation
Q: What is the effect of the death of a party upon between plaintiff and between the court and
a pending action? defendant, or petitioner the subject matter.
and respondent.
A: GR: Not a ground for a It is a ground for a motu
1. Purely personal – the death of either of motu proprio dismissal proprio dismissal. (Riano,
the parties extinguishes the claim and the Civil Procedure: A
action is dismissed. XPN: In cases subject to Restatement for the Bar,
summary procedure. p. 210, 2009 ed.)
2. Not purely personal – claim is not
extinguished and the party should be Q: Can a complaint be dismissed by the court motu
substituted by his heirs, executor or proprio based on improper venue?
administrator. In case of minor heirs, the
court may appoint a guardian ad litem for A: No. Improper venue is not one of the grounds
them. wherein the court may dismiss an action motu
3. Action for recovery of money arising from proprio. (Universal Corp. vs. Lim, G.R. No. 154338,
contract and the defendant dies before Oct. 5, 2007). Unless and until the defendant
entry of final judgment – it shall not be objects to the venue in a motion to dismiss, the
dismissed but instead shall be allowed to venue cannot be truly said to be improperly laid,
continue until entry of judgment. A because the venue although technically wrong may
favorable judgment obtained by the be acceptable to the parties for whose convenience
plaintiff shall be enforced in the manner the rules on venue have been devised. (Dacuycuy
provided in the rules for prosecuting vs. Intermediate Appellate Court, 195 SCRA 641)
claims against the estate of a deceased
person. (Sec. 20, Rule 3, 1999 Bar 2. VENUE OF REAL ACTIONS
Question)
Q: What is the venue of real actions?
Note: The substitute defendant need not be
summoned. The order of substitution shall be served A: The venue is local, hence the venue is the place
upon the parties substituted for the court to acquire where the real property involved or, any portion
jurisdiction over the substitute party. (Riano, Civil thereof, is situated (Sec. 1, Rule 4).
Procedure: A Restatement for the Bar, p. 232, 2009 ed.)
If there is notice of death, the court should await 3. VENUE OF PERSONAL ACTIONS
appointment of legal representative; otherwise,
subsequent proceedings are void. Q: What is the venue of personal actions?
25
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
27
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
by the Lupong file action by the Lupong the right of the defendant to prosecute
Tagapamayapa. Tagapamayapa (Santo his counterclaim in the same or separate
Tomas University v. Surla, action (Sec. 3, Rule 17; Riano, Civil
G.R. No. 129718, Aug. 17, Procedure: A Restatement for the Bar, p.
1998) (2007 Bar 340, 2009 ed.)
Question).
The court has Must be within the Q: Fe filed a suit for collection of P387,000 against
jurisdiction to entertain jurisdiction of the court Ramon in the RTC of Davao City. Aside from
both as to the amount where the case is pending
alleging payment as a defense, Ramon in his
and nature (Sec. 7, Rule and cognizable by regular
answer set up counterclaims for P100,000 as
6; Ibid p.331) courts of justice
damages and P30,000 as attorney's fees as a result
otherwise, defendant will
have to file it in separate of the baseless filing of the complaint, as well as
proceeding which requires for P250,000 as the balance of the purchase price
payment of docket fee of the 30 units of air conditioners he sold to Fe.
Suppose that instead of alleging payment as a
Note: A plaintiff who fails or who chooses not to defense in his answer, Ramon filed a motion to
answer a compulsory counterclaim may not be dismiss on that ground, at the same time setting
declared in default, principally because the issues up his counterclaims, and the court grants his
raised in the counterclaim are deemed automatically motion. What will happen to his counterclaims?
joined by the allegations of the complaint (Gojo v.
Goyala, G.R. No. 26768, Oct. 30, 1970). A: Since Ramon filed only a motion to dismiss, not
an answer, the dismissal of the complaint would
In an original action before the RTC, the counterclaim also bring about the dismissal of his counterclaims
may be considered compulsory regardless of the but he can file a separate action for his permissive
amount (Sec. 7, Rule 6). counterclaims. The compulsory counterclaims are
deemed waived when he filed a motion to dismiss
(3) EFFECT ON THE COUNTERCLAIM WHEN THE the complaint instead of answering the same
COMPLAINT IS DISMISSED (Financial Building Corp. v. Forbes Park Association,
Inc., G.R. No. 133119, Aug. 17, 2000). (2008 Bar
Q: What is the effect of the dismissal of a Question)
complaint on the counterclaim?
d. CROSS-CLAIMS
A:
1. If no motion to dismiss has been filed, any Q: What are the requirements for a cross-claim?
of the grounds for dismissal under rule 16
may be pleaded as an affirmative defense A:
in the answer, and in the discretion of the 1. A claim by one party against a co-party;
court, a preliminary hearing may be had 2. It must arise out of the subject matter of
thereon as if a motion to dismiss has been the complaint or of the counterclaim; and
filed (Sec. 6, Rule 16). After hearing, when 3. The cross-claimant is prejudiced by the
the complaint is dismissed, the claim against him by the opposing party.
counterclaim, compulsory or permissive is (Sec. 8, Rule 6)
not dismissed.
2. When the plaintiff himself files a motion Q: What is the effect if a cross-claim was not set
to dismiss his complaint after the up?
defendant has pleaded his answer with a
counterclaim. If the court grants the A:
motion, the dismissal shall be limited to GR: Barred if not set up. (Sec.2, Rule 9)
the complaint. It shall be without
prejudice to the right of the defendant to XPN: If it is not asserted through oversight,
prosecute his counterclaim in a separate inadvertence, or excusable negligence, it may still
action unless within 15 days from notice be set up with leave of court by amendment of the
of the motion, manifests his preference to pleadings. (Sec.10, Rule 11)
have his counterclaim resolved in the
same action (Sec. 2, Rule 17).
3. When the complaint is dismissed through
the fault of the plaintiff and at a time
when a counterclaim has already been set
up, the dismissal is without prejudice to
e. THIRD (FOURTH, ETC.) PARTY COMPLAINTS Surety & Insurance Co., G.R. No. L-27802, Oct. 26,
1968).
Q: What is a third (fourth, etc.) party complaint?
A third party complaint is not proper in an action for
A: A third (fourth, etc.) party complaint is a claim declaratory relief. (Commissioner of Customs v.
that a defending party may, with leave of court, file Cloribel, G.R. No. L-21036, June 30, 1977).
against a person not a party to the action, called
the third (fourth, etc.) party defendant, for Note: The court is vested with the discretion to allow
or disallow a party to an action to implead an
contribution, indemnity, subrogation or any other
additional party. Thus, a defendant has no vested right
relief, in respect of his opponent's claim. (Sec.11,
to file a third party complaint (China Banking
Rule 6) Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007;
Riano, p. 342, 2009 ed.).
Q: Distinguish a third-party complaint from the
rules on bringing in new parties. Q: Abby obtained a favorable judgment against
UNICAP for a sum of money. For failure to get full
A: A third-party complaint is proper when not one payment, Abby went after UNICAP’s debtor Ben.
of the third-party defendants therein is a party to Ben is a policy holder of Insular. The court’s sheriff
the main action. Whereas in bringing in new then served a notice of garnishment to Insular
parties, if one or more of the defendants in a over several account receivables due to Ben.
counterclaim or cross-claim is already a party to the Insular refused to comply with the order alleging
action, then the other necessary parties may be adverse claims over the garnished amounts. The
brought in under the rules on bringing in new trial court ordered Insular to release to Abby the
parties said account receivables of Ben under the policies.
Insular then filed a petition for certiorari with the
Q: Why is leave of court necessary in third (fourth, CA alleging that the trial judge gravely abused his
etc.) -party complaint? discretion when he issued the garnishment order
despite its adverse claim on the garnished
A: To obviate delay in the resolution of the amounts. The CA gave due course to the petition
complaint such as when the third-party defendant and annulled the order of the trial court. Is the
cannot be located; or unnecessary issues may be Court of Appeals correct?
introduced; or the introduction of a new and
separate controversy. (Herrera, Vol. I, p. 705, 2007 A: No. Neither an appeal nor a petition for certiorari
ed.) is the proper remedy from the denial of a third-
party claim. Since the third-party claimant is not
Q: What are the tests to determine whether the one of the parties to the action, he could not,
third-party complaint is in respect of plaintiff’s strictly speaking, appeal from the order denying its
claim? claim, but should file a separate reinvindicatory
action against the execution creditor or a complaint
A: for damages against the bond filed by the judgment
1. Whether it arises out of the same creditor in favor of the sheriff. The rights of a third-
transaction on which the plaintiff’s claim party claimant should be decided in a separate
is based, or, although arising out of action to be instituted by the third person (Solidum
another or different transaction, is v. CA, G.R. No. 161647, June 22, 2006).
connected with the plaintiff’s claim;
2. Whether the third-party defendant would f. COMPLAINT-IN-INTERVENTION
be liable to the plaintiff or to the
defendant for all or part of the plaintiff’s Q: What is a complaint-in-intervention?
claim against the original defendant; and
3. Whether the third-party defendant may A: An intervention pleading filed for the purpose of
assert any defenses which the third-party asserting a claim against either or all of the original
plaintiff has or may have to the plaintiff’s parties.
claim.
g. REPLY
Note: Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the third party
Q: Is the filing of a reply necessary?
complaint, regardless of the amount involved as a
third-party complaint is merely auxiliary to and is a
continuation of the main action (Republic v. Central
A:
GR: No.
29
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Note: If a party does not file such reply. All the 3. PARTS OF A PLEADING
new matters that were alleged in the answer are
deemed controverted (Sec. 10, Rule 6) a. CAPTION
Q: What are the pleadings allowed in a summary Q: What is the rule regarding the signature and
procedure? address?
31
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
3. That if he should therefore learn that the filing of the certification 14 days before the
same or similar action or claim has been dismissal of the petition. In Uy v. LandBank,
filed or is pending, he shall report that supra, the Court had dismissed Uy’s petition for
fact within five days therefrom to the lack of verification and certification against non-
court wherein his aforesaid complaint or forum shopping. However, it subsequently
initiatory pleading has been filed (Sec. 5, reinstated the petition after Uy submitted a
Rule 7) motion to admit certification and non-
forum shopping certification. In all these cases,
Q: What is the effect of non-compliance with the there were special circumstances or compelling
rule on certification against forum shopping? reasons that justified the relaxation of the rule
requiring verification and certification on non-
A: It is not curable by mere amendment and shall forum shopping.
be a cause for the dismissal of action (Sec.5, Rule 7).
Q: Is substantial compliance allowed by the
Note: When the case is dismissed due to non- courts?
compliance with the certification, filing fees cannot be
recovered. A:
GR: No. The rule is that the certificate of non-
Q: What is the effect of non-compliance with the forum shopping must be signed by all the
undertakings? petitioners or plaintiffs in a case and the signing
by only one of them is insufficient.
A: It has the same effect as the submission of false
certification. Hence, such failure shall constitute XPN: However, the Court has also stressed that
indirect contempt of court without prejudice to the the rules on forum shopping, which were
corresponding administrative and criminal designed to promote and facilitate the orderly
sanctions. (Sec. 5 Rule 7). administration of justice, should not be
interpreted with such absolute literalness as to
Q: What is the effect of submission of a false subvert its own ultimate and legitimate
certification? objective. The rule of substantial compliance
may be availed of with respect to the contents
A: It shall constitute indirect contempt of court, of the certification. This is because the
without prejudice to the corresponding requirement of strict compliance with the
administrative and criminal actions (Sec. 5, Rule 7) provisions regarding the certification of non-
forum shopping merely underscores its
Q: What is the effect of willful and deliberate mandatory nature in that the certification
forum shopping of the party or his counsel? cannot be altogether dispensed with or its
requirements completely disregarded. It does
A: It shall be a ground for summary dismissal. This not thereby interdict substantial compliance
dismissal is with prejudice and shall constitute with its provisions under justifiable
direct contempt as well as cause for administrative circumstances. (Cavile v. Heirs of Clarita Cavile,
sanctions (Sec. 5, Rule 7). 448 Phil 302, 2003)
Q: Is belated filing allowed by the courts? Q: When should the rule on forum shopping be
invoked?
A:
GR: No. The lack of certification against A:
forum shopping is generally not curable by the GR: It should be raised at the earliest
submission thereof after the filing of the opportunity in a motion to dismiss or a similar
petition. pleading.
XPN: In certain exceptional circumstances, Note: Invoking it in the later stages of the
however, the Court has allowed the belated proceedings or on appeal may result in the
filing of the certification. In Loyola v. Court of dismissal of the action which invokes forum
Appeals, et al. (245 SCRA 477 [1995]), the Court shopping.
considered the filing of the certification one day
after the filing of an election protest XPNs: It may be invoked in the later stages only
as substantial compliance with the requirement. if the violation arises from or will result in:
In Roadway Express, Inc. v. Court of Appeals, et 1. The loss of jurisdiction over the subject
al. (264 SCRA 696 [1996]), the Court allowed the matter
33
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
for failure to state a cause of action. Such as tender Q: How are actionable documents pleaded?
of payment before consignation, prior resort to
barangay conciliation when necessary, and etc A: By setting forth:
(Riano, Civil Procedure: A Restatement for the Bar, 1. The substance of such document in the
p. 97, 2009 ed.). pleading and attaching said document
thereto as an exhibit
(2) FRAUD, MISTAKE, MALICE, INTENT, 2. Said document verbatim in the pleading
KNOWLEDGE AND OTHER CONDITION OF THE (Sec. 7, Rule 8).
MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR
ACTS Note: A variance in the substance of the document set
forth in the pleading and the document annexed
Q: What is the rule in making averments of fraud thereto does not warrant the dismissal of the action
or mistake? (Convets, Inc. v. National Development Co., G.R. No. L-
10232, Feb. 28, 1958). However, the contents of the
A: The circumstances constituting such fraud or document annexed are controlling.
mistake must be stated with particularity (Sec. 5,
Rule 8). The complaint must state with particularity c. SPECIFIC DENIALS
the fraudulent acts of the adverse party. These
particulars would necessarily include the time, Q: What are the kinds of specific denial?
place, and specific acts of fraud committed against
him (Riano, Civil Procedure: A Restatement for the A:
Bar, p. 98, 2009 ed.). 1. Absolute denial – defendant specifies
each material allegation of fact the truth
Q: What is the rule in making averments of malice, of which he does not admit and,
intent, knowledge or other conditions of the mind whenever practicable, shall set forth the
of a person? substance of the matters upon which he
relies to support his denial.
A: The circumstances constituting such may be 2. Partial denial – defendant denies only a
averred generally (Sec.5, Rule 8). part of an averment. In this kind he shall
specify so much of it as is true and
Q: What is the rule in pleading an official material and shall deny only the
document or act? remainder.
3. Disavowal of knowledge – defendant
A: It is sufficient to aver that the document was alleges that he is without knowledge or
issued in compliance with law. With respect to an information sufficient to form a belief as
act, it is likewise sufficient to allege that the act was to the truth of a material averment made
done also in compliance with law (Sec.9, Rule 8; in the complaint.
Riano, Civil Procedure: A Restatement for the Bar, p.
98, 2009 ed.). (1) EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS
35
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
a. His failure to answer was due to f. ACTIONS WHERE DEFAULT ARE NOT ALLOWED
fraud, accident, mistake or excusable
negligence; and Q: When is default not allowed?
b. That he has a meritorious defense.
[Sec. 3(b), Rule 9] (2000 & 1999 Bar A:
Question) 1. Actions for annulment;
2. Declaration of nullity of marriage and
2. After judgment and before judgment legal separation [Sec. 3(e), Rule 9]; and
becomes final and executory – He may file 3. In special civil actions of certiorari,
a motion for new trial under Rule 37. He prohibition and mandamus where
may also appeal from the judgment as comment instead of an answer is
being contrary to the evidence or the law required to be filed.
(Talsan Enterprises, Inc. v. Baliwag
Transit, Inc., G.R. No. 169919, Sept. 11, 7. FILING AND SERVICE OF PLEADINGS
2009)
Q: What papers are required to be filed and
3. After the judgment becomes final and served?
executory – he may file a petition for
relief from judgment under Rule 38 A: Every judgment, resolution, order, pleading
(Balangcad v. Justices of the CA, G.R. No. subsequent to the complaint, written motion,
83888, Feb. 12, 1992) (2006, 1998 Bar notice, appearance, demand, offer of judgment or
Question) similar papers shall be filed with the court, and
served upon the parties affected. (Sec.4, Rule 13)
4. Where the defendant has however, been
wrongly or improvidently declared in a. PAYMENT OF DOCKET FEES
default, the court can be considered to
have acted with grave abuse of discretion Q: What is the significance of paying the docket
amounting to lack or excess of jurisdiction fees?
and when the lack of jurisdiction is patent
in the face of the judgment or from the A: A complaint is not considered filed unless the
judicial records, he may avail of the proper amount of the docket fee is paid. Thus, if the
special civil action of certiorari under Rule proper docket fee is not paid, the period of
65 (Balangcad v. Justices of the CA, G.R. prescription continues to run.
No. 83888, Feb. 12, 1992)
b. FILING VERSUS SERVICE OF PLEADINGS
d. EFFECT OF A PARTIAL DEFAULT
Q: What is filing?
Q: What is the effect of partial default?
A: It is the act of presenting the pleading or other
A: paper to the clerk of court. (Sec. 2, Rule 13)
GR: The court will try the case against all
defendants upon the answer of some. Q: What is service?
XPN: Where the defense is personal to the one A: It is the act of providing a party with a copy of
who answered, in which case, it will not the pleading or paper concerned. If any party has
benefit those who did not answer e.g. forgery. appeared by counsel, service upon him shall be
(1995 Bar Question) made upon his counsel or one of them, unless
service upon the party himself is ordered by the
e. EXTENT OF RELIEF court. (Sec. 2, Rule 13)
A: The judgment shall not exceed the amount or be Q. When should a responsive pleading be filed?
different in kind from that prayed for nor award
unliquidated damages [Sec. 3(d), Rule 9]. However, A:
if the court orders submission of evidence, Periods for Filing an
unliquidated damages may be awarded based on Answer
such. Answer to an original Within 15 days after
complaint service of summons,
37
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
thereof the unclaimed letter together with the Note: Plaintiff may amend his complaint even if the
certified or sworn copy of the notice given by the same was dismissed on motion of the defendant
postmaster to the addressee. (Sec. 13, Rule 13) provided that the dismissal order is not yet final.
(Arranz vs. Manila Surety and Fidelity Co., Inc., L-
Q: What is a notice of lis pendens? 128441, June 30, 1960)
39
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A:
GR: The defendant’s voluntary appearance shall
be equivalent to service of summons and the
consequent submission of one’s person to the
jurisdiction of the court (Sec. 20, Rule 14).
a. SERVICE UPON A DEFENDANT WHERE HIS by any other manner the court may deem
IDENTITY IS UNKNOWN OR WHERE HIS sufficient. (Riano, p. 439-440, 2005 ed.)
WHEREABOUTS ARE UNKNOWN
b. SERVICE UPON RESIDENTS TEMPORARILY 7. SERVICE UPON PRISONERS AND MINORS
OUTSIDE THE PHILIPPINES
Q: How is service of summons upon prisoner
Q: When is constructive service of summons made?
proper?
A: Service shall be effected upon him by the officer
A: having the management of such jail or institution
1. Service upon a defendant where his who is deemed deputized as a special sheriff for
identity is unknown or where his said purpose. (Sec. 9, Rule 14)
whereabouts are unknown. When the
defendant is designated as an unknown Q: How is service of summons upon minors made?
and cannot be ascertained by diligent
inquiry, Sec. 14, Rule 14 allows service of A: Service shall be made upon him personally and
summons by publication in a newspaper on his legal guardian if he has one, or if none, upon
of general circulation and in such places his guardian ad litem whose appointment shall be
and for such time as the court may applied for by the plaintiff. In the case of a minor,
order. (Riano, p. 432 , 2005 ed.) service may also be made on his father or mother.
(Sec. 10, Rule 14)
2. Service upon residents temporarily
outside the Philippines. When any action 8. PROOF OF SERVICE
is commenced against a defendant who
ordinarily resides within the Philippines, Q: How is proof of service done?
but who is temporarily out of it, service
may, by leave of court, be also effected A: It shall be made in writing by the server and shall
out of the Philippines (Sec. 16, Rule 14). set forth the manner, place, and date of service;
shall specify any papers which have been served
6. EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED with the same; and shall be sworn to when made by
a person other than a sheriff or his deputy (Sec 18,
Q: When is extra-territorial service of summons Rule 14).
allowed?
Q: How is proof of service by publication done?
A: The defendant must be a non-resident defendant
who is at the same time not found in the Philippines A: It is done through the following:
at the time summons is to be served. In addition, 1. Affidavit of the printer, his foreman or
the action commenced against him must be any of principal clerk, business or advertising
the following: manager, to which affidavit a copy of the
publication shall be attached; and
1. An action that affects the personal status 2. Affidavit showing the deposit of a copy of
of the plaintiff; the summons and order for publication in
2. An action that relates to, or the subject of the post office (Sec. 19, Rule 14).
which is the property within the
Philippines in which the defendant has or G. MOTIONS
claims a lien or interest, actual or
contingent; 1. MOTIONS IN GENERAL
3. An action in which the relief demanded
consists, wholly or in part, in excluding a. DEFINITION OF A MOTION
the defendant from any interest therein;
4. An action where the property of the Q: What is a motion?
defendant has been attached in the
Philippines. A: It is an application for relief other than by a
pleading. (Sec. 1, Rule 15)
Note: In any of the above instances,
extraterritorial service is permissible with
leave of court and may be effected by
personal service, summons by publication or
41
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A motion on the other hand is an application for Q: What is the Omnibus Motion Rule?
relief other than a pleading(Sec. 1, Rule 15).
A:
c. CONTENTS AND FORMS OF MOTIONS GR: All available grounds for objection in
attacking a pleading, order, judgment, or
Q: Should a motion be in writing? proceeding should be invoked at one time;
otherwise, they shall be deemed waived (Sec. 8,
A: Rule 15).
GR: Yes.
XPN: The court may dismiss the case motu
XPN: Those made in open court or in the course proprio based on:
of hearing or trial (Sec. 2, Rule 15). 1. Lack of jurisdiction over the subject
matter;
Q: What are the contents of a motion? 2. Litis pendentia;
3. Res judicata; and
A: The contents of a motion are: 4. Barred by statute of limitations (Sec. 1,
1. the relief sought to be obtained; Rule 9)
2. the ground upon which it is based; and
3. if required by the Rules or necessary to f. LITIGATED AND EX-PARTE MOTIONS
prove facts alleged therein, shall be
accompanied by supporting affidavits and Q: What is a litigated motion?
other papers. (Sec. 3, Rule 15)
A: It is a motion which affects the substantial rights
Q: May a motion pray for judgment? of the parties. A hearing is required.
A:
GR: No. Q: What is an ex-parte motion?
XPN: Motion for: A: It is taken or granted at the instance and for the
1. judgment on the pleadings; benefit of one party, and without notice to or
2. summary judgment; or contestation by any party adversely affected
3. Judgment on demurrer to evidence. (Regalado, Remedial Law Compendium, p. 264,
2009 ed.)
d. NOTICE OF HEARING AND HEARING OF
MOTIONS g. PRO-FORMA MOTIONS
A: It shall specify the time and date of the hearing A: It is that which does not comply with the rules on
which shall not be later than ten (10) days after the motion and is considered as one filed merely to
filing of the motion and it shall be addressed to the delay the proceedings (Marikina Development
parties concerned (Sec. 5, Rule 15). Corp., v. Flojo, G.R. No. 110801, Dec. 8, 1995).
43
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
cause with any order of the court or with 8. That the claim or demand set forth in the
the Rules. (2008 Bar Question) plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
3. MOTION TO DISMISS
9. That the claim on which the action is
a. GROUNDS founded is unenforceable under the
provisions of the statute of frauds;
Q: What are the grounds for a motion to dismiss
under Rule 16? 10. That a condition precedent for filing the
claim has not been complied with.(Sec. 1,
A: Rule 16)
1. That the court has no jurisdiction over the Note: Not jurisdictional in nature, hence,
person of the defending party; deemed waived if not raised.
b. RESOLUTION OF MOTION
2. That the court has no jurisdiction over the
subject matter of the claim;
Q: What are the three courses of action which the
trial court may take in resolving a motion to
3. That venue is improperly laid;
dismiss?
4. That the plaintiff has no legal capacity to
A:
sue;
1. Dismiss the action or claims;
Note: The issue of the plaintiff’s lack of legal
2. Deny the motion; or
capacity to sue cannot be raised for the first
time on appeal where the defendant dealt
3. Order the amendment of the pleading
with the former as a party in the (Sec. 3, Rule 16).
proceeding.
Note: The court shall not defer the resolution of the
5. That there is another action pending motion for the reason that the ground relied upon is
between the same parties for the same not indubitable. In every case, the resolution shall
state clearly and distinctly the reasons therefor (Sec. 3,
cause;
Rule16).
Note: Litis pendentia requires concurrence
of the following requisites:
c. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT
a. Identity of the parties IS DISMISSED
b. Identity of rights asserted and reliefs
prayed for, being founded on the same Q: What are the remedies of the plaintiff when the
facts complaint is dismissed?
c. Identity with respect to the two
preceding particulars, such that any A: If the dismissal is without prejudice, the plaintiff
judgment that may be rendered in the may re-file the complaint. If the dismissal is with
pending case would amount to red prejudice, the plaintiff may file an appeal. (Riano,
adjudicate in the other case. (Lim vs. Civil Procedure: A Restatement for the Bar, p. 319-320,
Vianzon, G.R. No. 137187, Aug.3, 2006) 2009 ed.)
6. That the cause of action is barred by a d. REMEDIES OF THE DEFENDANT WHEN THE
prior judgment or by the statute of MOTION IS DENIED
limitations;
Note: The requisites of res judicata include: Q: What are the remedies of the defendant when
The former judgment must be final the motion is denied?
a. The court which rendered it has
jurisdiction over the subject matter A: File an answer and proceed with the trial. If
and the parties decision is adverse, appeal therefrom and raise as
b. Judgment must be on the merits error the denial of the motion to dismiss. If there is
c. There must be identity of parties,
grave abuse of discretion amounting to lack or
subject matter and causes of action
excess of jurisdiction, certiorari or prohibition may
lie under Rule 65. If there is unlawful neglect of the
7. That the pleading asserting the claim
performance of an act which the law specifically
states no cause of action;
enjoins, mandamus is the proper remedy. (Riano,
Note: Curable by amendment
Civil Procedure: A Restatement for the Bar, p. 319,
2009 ed.)
45
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
H. DISMISSAL OF ACTIONS
A:
Dismissal upon notice by plaintiff (Sec. 1, Dismissal upon motion of plaintiff Dismissal due to fault of
Rule 17) (Sec. 2, Rule 17) plaintiff (Sec. 3, Rule 17)
A complaint may be dismissed by the After service of the answer or a motion 1. If, for no justifiable cause,
plaintiff by filing a notice of dismissal at for summary judgment by the adverse the plaintiff fails to appear
any time before service of the answer or party. on the date of the presen-
of a motion for summary judgment. tation of his evidence in
Upon such notice being filed, the court chief on the complaint.
shall issue an order confirming the 2. If the plaintiff fails to
dismissal. Unless otherwise stated in the prosecute his action for an
notice, the dismissal is without prejudice, unreason-nable length of
except that a notice operates as time (nolle prosequi).
adjudication upon the merits when filed 3. If the plaintiff fails to
by a plaintiff who has once dismissed in a comply with the Rules or
competent court an action based on or any order of the court.
including the same claim.
It is a matter of right. Matter of discretion upon the court. A Matter of evidence.
complaint shall not be dismissed at the
GR: A dismissal without prejudice i.e. the plaintiff's instance save upon approval GR: Dismissal is with prejudice
complaint can be re-filed of the court and upon such terms and because it has an effect of an
conditions as the court deems proper adjudication on the merits.
XPNs: (Sec. 2, Rule 17).
1. The notice of dismissal by the XPN: Unless otherwise declared
plaintiff provides that the dismissal is GR: It is a dismissal without prejudice, by the court (Sec. 3, Rule 17)
with prejudice; or
2. The plaintiff has once dismissed in a XPN: If the order of dismissal specifies
competent court an action based on that it is with prejudice (Sec. 2, Rule 17)
or including the same claim (Two-
dismissal rule) (Sec. 1, Rule 17) Note: A class suit shall not be dismissed
3. Even where the notice of dismissal or compromised without the approval of
does not provide that it is with the court.
prejudice but it is premised on the If a counterclaim has been pleaded by a
fact of payment by the defendant of defendant prior to the service upon him
the claim involved (Serrano v. of the plaintiff's motion for dismissal, the
dismissal shall be limited to the
Cabrera, G.R. No. L-5189, Sept. 21,
complaint.
1953)
Since there is no answer yet filed by the GR: It is also without prejudice to the Dismissal upon motion of the
adverse party, no counterclaim right of defendant to prosecute his defendant or upon the court's
recoverable counterclaim in a separate action. own motion is without
prejudice to the right of the
XPN: Unless within 15 days from notice defendant to prosecute his
of the motion he manifests his counterclaim on the same or
preference to have his counterclaim separate action
resolved in the same action (Sec. 2,
Rule 17).
Note: The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case does not
warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine
and to object to the admissibility of evidence (Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977). The provision of this
rule shall also apply to the dismissal of any counterclaim, cross-claim, or third-party complaint (Sec. 4, Rule17).
47
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A: The parties and their counsel. A: It shall have the same effect as failure to appear
at the pre-trial (A.M. No. 03-1-09-SC, July 13, 2004).
Q: What is the effect of a party’s failure to appear
during the pre-trial? 6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE
AND PRE-TRIAL IN CRIMINAL CASE
A: Plaintiff’s failure to appear during the pre-trial
shall be a cause for dismissal of the action, with Q: Distinguish pre-trial in civil cases from pre-trial
prejudice, unless otherwise ordered by the in criminal cases.
court. Defendant’s non-attendance during the pre-
trial shall be a cause to allow the plaintiff to present A:
evidence ex parte and the court to render judgment Pre-trial in civil case Pre-trial in criminal case
on the basis thereof (Sec. 5, Rule 18). (1992 Bar It is set when the plaintiff It is ordered by the court
Question) moves ex parte to set the and no motion to set the
case for pre-trial (Sec. 1, case for pre-trial is
Note: The non-appearance of a party may be excused Rule 18) required from either the
only if a valid cause is shown therefore or if a prosecution or the
representative shall appear in his behalf fully defense
authorized in writing to enter into an amicable The motion to set the The pre-trial is ordered by
settlement, to submit to alternative modes of dispute case for pre-trial is made the court after
resolution, and to enter into stipulations or admissions after the last pleading arraignment and within
of facts and of documents. (Sec.4, Rule 18) has been served and filed thirty (30) days from the
(Sec. 1, Rule 18) date the court acquires
5. PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE jurisdiction over the
person of the accused.
Q: When should the parties file with the court and It considers the It does not include the
serve on the adverse party their pre-trial briefs? possibility of an amicable possibility of amicable
settlement as an settlement of criminal
A: They shall file their respective pre-trial briefs in important objective. liability as one of its
such a manner as shall ensure their receipt thereof purposes (Sec. 1, Rule
118).
at least three (3) days before the date of the pre-
Requires the proceeding All agreements or
trial (Sec. 6, Rule 18).
during the preliminary admissions made or
conference to be entered during the pre-
Q: What should a pre-trial brief contain? recorded in the “minutes trial conference shall be
of preliminary reduced in writing and
A: conference” to be signed signed by both the
1. A statement of their willingness to enter by both parties and/or accused and counsel,
into amicable settlement or alternative counsel. The rule allows otherwise, they cannot be
modes of dispute resolution, indicating either the party or his used against the accused
the desired terms thereof; counsel to sign the (Sec. 2, Rule 18)
2. A summary of admitted facts and minutes (A.M. No. 03-1-
proposed stipulation of facts; 09-SC).
3. The issues to be tried or resolved; Sanctions for non- The sanctions in a
4. The documents or exhibits to be appearance in a pre-trial criminal case are imposed
presented, stating the purpose thereof; are imposed upon the upon the counsel for the
plaintiff and the accused or the prosecutor
A:
ADR Court-Annexed Mediation/Judicial Dispute Appellate Court Mediation
Resolution (A.M. No, 11-1-6-SC-PHILJA)
Purpose / Object
1. To actively promote party The purposes of CAM and JDR is “to put an 1. After mediation has failed in
autonomy in the resolution end to pending litigation through the lower courts, Appellate
of disputes or the freedom compromise agreement of the parties and Court Mediation provides an
of the parties to make their thereby help solve the ever-pressing added option to put an end to
own arrangements to problem of court docket congestion”. It is costly and long-drawn
resolve their disputes. also intended “to empower the parties to litigation.
2. To achieve speedy and resolve their own disputes and give 2. It facilitates the interest-based
impartial justice and unclog practical effect to the State Policy expressly settlement of the dispute
court dockets. stated in the ADR Act of 2004 (R.A. No. through proposals coming from
9285)” the parties or suggested by the
mediator and accepted by the
parties.
Where to File
Subject to the terms of the Court acquiring jurisdiction of the case Court of Appeals
contract or the submission since mediation is part of the mandatory
agreement, the arbitrators pre-trial
selected must, within 5 days
from notice of appointment, if Note: Court-annexed mediation should be
the parties to the controversy distinguished from court-referred mediation.
reside within the same city or The former is conducted under the court’s
province, or within 15 days after auspices after such court has acquired
appointment if the parties reside jurisdiction of the dispute while the latter is
in different provinces, set a time mediation ordered by the court to be
conducted in accordance with the parties’
and place for the hearing of the
agreement when an action is prematurely
matters submitted to them. (Sec.
commenced in violation of such agreement.
12, R.A. 876)
The first stage is the CAM “where the judge
refers the parties to the Philippine Mediation
Center (PMC) for the mediation of their
dispute by trained and accredited mediators”.
Upon failing to secure a settlement of the
dispute during the first stage, “a second
attempt is made at the JDR stage”, where the
JDR judge becomes a “mediator-conciliator-
early neutral evaluator in a continuing effort
to secure a settlement”
49
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Cases Covered
Any dispute or controversy 1. All civil cases and the civil liability of 1. Civil cases brought on ordinary
which may thereafter arise criminal cases covered by the Rule on appeal or petition for review.
between parties to a contract Summary Procedure, including the civil Appeals from final orders,
pursuant to an arbitration clause liability for violation of B.P. 22, except awards, judgments, resolutions
or any controversy or dispute those which by law may not be of the Court of Tax Appeals and
wherein the parties agree to compromised; quasi-judicial agencies in the
submit to an alternative dispute 2. Special proceedings for the exercise of their quasi-judicial
resolution system settlement of estates; functions through petition for
3. All civil and criminal cases filed with a review or certiorari that
certificate to file action issued by questions a decision for having
the Punong Barangay or the Pangkat ng been rendered in grave abuse
Tagapagkasundo under the of discretion amounting to lack
Revised Katarungang Pambarangay Law of jurisdiction.
4. The civil aspect of Quasi-Offenses 2. Special civil actions for
under Title 14 of the Revised Penal Code; certiorari, except those
5. The civil aspect of less grave felonies involving pure questions of
punishable by correctional penalties not law.
exceeding 6 years imprisonment, where 3. Habeas corpus (court order
the offended party is a private person; directing law enforcement
6. The civil aspect of estafa, theft and officials or custodians of
libel; detained persons to produce
7. All civil cases and probate that person in court) cases
proceedings, testate and intestate, involving custody of minors,
brought on appeal from the exclusive and with the consent of the parties,
original jurisdiction granted to the first provided that the minor is not
level courts under Section 33, par. (1) of detained for commission of a
the Judiciary Reorganization Act of 1980; criminal offense.
8. All cases of forcible entry and 4. Criminal cases cognizable by
unlawful detainer brought on appeal the Katarungang Pambarangay
from the exclusive and original (Barangay Justice System)
jurisdiction granted to the first level under R.A. 7160 or offenses
courts under Section 33, par. (2) of the punishable by imprisonment
Judiciary Reorganization Act of 1980; not exceeding one year or a
9. All civil cases involving title to or fine not exceeding P5,000 or
possession of real property or an interest both such fine and
therein brought on appeal from the imprisonment.
exclusive and original jurisdiction granted
to the first level courts under Section 33,
par.(3) of the Judiciary Reorganization Act
of 1980; 13 and
10. All habeas corpus cases decided by
the first level courts in the absence of the
Regional Trial Court judge, that are
brought up on appeal from the special
jurisdiction granted to the first level
courts under Section 35 of the Judiciary
Reorganization Act of 1980.”
Cases Excluded
1. Labor disputes under the 1. Civil cases which by law cannot be 1. Civil cases, which by law cannot
Labor Code compromised (Article 2035, New Civil be compromised.
2. Civil status of persons Code);
3. Validity of a marriage 2. Criminal cases except those
4. Any ground for legal 2. Other criminal cases not covered under which involve habeas corpus of
separation paragraphs 3 to 6 above; minors not detained for a
5. Jurisdiction of courts criminal offense.
6. Future legitime 3. Habeas Corpus petitions;
7. Criminal liability 3. Habeas corpus petitions
8. Those which by law 4. All cases under Republic Act No. 9262 involving custody of minors
cannot be compromised (Violence against Women and Children); when the subject is detained
9. Dispute resolution and for commission of a criminal
services provided by offense.
Note: The table for Katarungang Pambarangay Law, Small Claims Cases and Rules on Summary Procedure are found on
p.17
A:
Arbitration Mediation Conciliation Early Neutral Mini-Trial
Evaluation
Definition
It is a voluntary It is a voluntary A process whereby It is a process It is a structured
dispute resolution process in which an the parties request a wherein parties and dispute resolution
process in which one impartial and neutral third person or their lawyers are method in which the
or more arbitrators, third party persons to assist brought together merits of a case are
appointed in (mediator), selected them in their attempt early in a pre-trial argued before a
accordance with the by the disputing to reach an amicable phase to present panel comprising of
agreement of the parties, facilitates settlement of their summaries of their senior decision
parties, or rules communication and dispute arising out of cases and receive a makers with or
promulgated negotiation, and or relating to a non-binding without the presence
pursuant to R.A. assists the parties in contractual or other assessment by an of a neutral third
9285, resolve a reaching a voluntary legal relationship (Art. experienced, person after which
dispute by rendering agreement regarding 1 [3], UNCITRAL neutral person, the parties seek a
an award. It results a dispute. Model Law on with expertise in negotiated
in the adjudication of Conciliation) the subject or the settlement.
a dispute. substance of the
dispute.
Functions
Arbitrator acts as Mediator does not A conciliator Early neutral Panel renders a
out-of-court judge render an award but participates only in Evaluator assesses decision based on
and settles the only arranges the the preliminary steps or reviews the the merits of the
dispute facts to be of facilitating issues submitted by arguments of the
extrajudicially. negotiated so that discussion between the parties and parties.
parties can come to the parties and helps tenders its
He makes a a compromise them frame the evaluation which is
determination of the agreement. issues for discussion. non-binding.
facts and applies the He assists the parties
law to those facts to in reaching a
resolve a dispute mutually agreeable
independently of the settlement of their
actual result desired dispute through
by the parties. direct negotiations.
He actively
participates in
resolving the
dispute, and then
gives an opinion.
Effect of decision
The award may be The decision or He does not render a The assessment is It need not be
final and binding if so opinion is not decision. The dispute not binding upon confirmed by the
agreed by the binding on the is left to be settled by the parties. courts.
parties. To be parties. It is the parties
executory, it must recommendatory in themselves.
first be confirmed by nature. The mediator
51
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What is the State policy in alternative dispute functions in any ADR system. An ADR practitioner
resolution? refers to individuals acting as mediator, conciliator,
arbitrator or neutral evaluator. (Sec.3[b] of R.A. No.
A: The state policy in ADR is to actively promote 9285)
party autonomy in the resolution of disputes or the
freedom of the parties to make their own J. INTERVENTION
arrangements in resolving their disputes.
Q: What is intervention?
Q: What is the Constitutional basis of alternative
dispute resolution? A: It is a legal proceeding by which a third person is
permitted by the court to become a party by
A: The State shall promote the principle of shared intervening in a pending action after meeting the
responsibility between workers and employers and conditions and requirement set by the Rules of
the preferential use of voluntary modes in settling Court. This person who intervenes is one who is not
disputes, including conciliation, and shall enforce originally impleaded in the action (First Philippine
their mutual compliance therewith to foster Holdings Corp. v. Sandiganbayan, G.R. No. 88345,
industrial peace. (Par. 2, Sec. 3, Art. XIII, 1987 Feb. 1, 1996)
Constitution)
Note: Right to intervene is not an absolute right as it
Q: What is the legal basis of alternative dispute can be secured only in accordance with the terms of
resolution? the applicable statute or rule. Riano, Civil Procedure: A
Restatement for the Bar, p. 345, 2009 ed.)
A: The legal basis would be, “the contracting parties
may establish such stipulations, clauses, terms and 1. REQUISITES FOR INTERVENTION
conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, Q: What are the requisites for intervention?
public order, or public policy.” (Art. 1306, NCC)
A:
Q: What is an alternative dispute resolution 1. There must be a motion for intervention
system? filed before rendition of judgment by the
trial court (Sec. 1, Rule 19);
A: It means any process or procedure used to Note: A motion is necessary because leave
resolve a dispute or controversy, other than by of court is required before a person may be
allowed to intervene.
adjudication of a presiding judge of a court or an
officer of a government agency in which a neutral
2. The movant must show in his motion that
third party participates to assist in the resolution of
he has:
issues, which includes arbitration, mediation,
a. Legal interest in the matter in
conciliation, early neutral evaluation, mini-trial, or
controversy;
any combination thereof. (Sec.3[a] of R.A. No. 9285)
b. Legal interest in the success of either
of the parties;
Note: Its purposes are to:
1. Actively promote party autonomy in the
c. Legal interest against both parties; or
resolution of disputes or the freedom of the d. So situated as to be adversely
parties to make their own arrangements to affected by a distribution or other
resolve their disputes; disposition of the property in the
2. Achieve speedy and impartial justice; and custody of the court or of an officer
3. Unclog court dockets. thereof (Sec. 1, Rule 19);
3. Intervention will not unduly delay or
Q: Distinguish alternative dispute resolution prejudice the adjudication of the rights of
provider from an alternative dispute resolution original parties; and
practitioner. 4. Intervenor’s rights may not be fully
protected in a separate proceeding
A: An ADR provider means institutions or persons (Mabayo Farms, Inc. vs. CA, GR 140058,
accredited as mediator, conciliator, arbitrator, Aug. 1, 2002).
neutral evaluator, or any person exercising similar
53
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A: A process directed to a person requiring him to A: It shall state the name of the court and the title
bring with him any books, documents, or things of the action or investigation, shall be directed to
under his control (Sec. 1, Rule 21). the person whose attendance is required, and in
the case of a subpoena duces tecum, it shall also
2. SUBPOENA AD TESTIFICANDUM contain a reasonable description of the books,
documents or things demanded which must appear
Q: What is subpoena ad testificandum? to the court prima facie relevant (Sec. 3).
A: A process directed to a person requiring him to Q: What is the rule on subpoena for depositions?
attend and to testify at the hearing or trial of an
action or at any investigation conducted by A: Proof of service of a notice to take a deposition,
competent authority or for the taking of his as provided in Secs. 15 and 25, Rule 23, shall
deposition (Sec. 1, Rule 21). constitute sufficient authorization for the issuance
of subpoenas for the persons named in said notice
Q: Distinguish subpoena from summons. by the clerk of the court of the place in which the
deposition is to be taken. The clerk shall not,
A: however, issue a subpoena duces tecum to any such
Subpoena Summons person without an order of the court (Sec. 5, Rule
An order to appear and Order to answer 21).
testify or to produce books complaint
and documents Q: How is service of subpoena made?
May be served to a non- Served on the
party defendant A: It shall be made in the same manner as personal
Needs tender of Does not need tender or substituted service of summons (Sec. 6, Rule 21).
kilometrage, attendance fee of kilometrage and
and reasonable cost of other fees Note: Service of a subpoena shall be made by the
production fee sheriff, by his deputy, or by any other person specially
authorized, who is not a party and is not less than
3. SERVICE OF SUBPOENA eighteen (18) years of age (Sec. 6, Rule 21).
Q: Why must service of subpoena be made? when the subpoena was served (Sec. 4,
Rule 21).
A: The service must be made so as to allow the
witness a reasonable time for preparation and L. MODES OF DISCOVERY
travel to the place of attendance (Sec. 6, Rule 21).
Q: What are the different modes of discovery?
XPNs: A:
1. Where the witness resides more than 100 1. To enable a party to obtain knowledge of
km. from his residence to the place where material facts within the knowledge of
he is to testify by the ordinary course of the adverse party or of third parties
travel, generally, by overland through depositions;
transportation (viatory right); or 2. To obtain knowledge of material facts or
2. When the permission of the court in admissions from the adverse party
which the detention prisoner’s case is through written interrogatories;
pending was not obtained (Sec. 10, Rule 3. To obtain admissions from the adverse
21). party regarding the genuineness of
relevant documents or relevant matters
5. QUASHING OF SUBPOENA of fact through requests for admissions;
4. To inspect relevant documents or objects,
Q: How to quash a subpoena? and lands or other property in the
possession and control of the adverse
A: party; and
Subpoena duces tecum: Upon motion promptly 5. To determine the physical or mental
made and, in any event, at or before the time condition of a party when such is in
specified therein: controversy (Koh vs. IAC, 144 SCRA 259).
1. If it is unreasonable and oppressive, or
2. The relevancy of the books, documents or 1. DEPOSITIONS PENDING ACTION; DEPOSITIONS
things does not appear, or BEFORE ACTION OR PENDING APPEAL
3. If the person is whose behalf the
subpoena is issued fails to advance the a. MEANING OF DEPOSITION
reasonable cost of the production thereof
(Sec. 4, Rule 21). Q: What is deposition?
4. That the witness fees and kilometrage
allowed by the Rules were not tendered A: A deposition is the taking of the testimony of
when the subpoena was served any person, whether he be a party or not, but at the
Subpoena ad testificandum: instance of a party to the action. This testimony is
1. That the witness is not bound thereby. taken out of court. Deposition may be:
2. That the witness fees and kilometrage a. An oral examination
allowed by the Rules were not tendered b. Written interrogatories (Sec 1, Rule 23)
55
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: When can depositions may be availed of? XPN: If the deposition or any part thereof is
offered in evidence for any purpose (Sec. 8, Rule
A: 23).
a. During a pending action (Rule 23) –
deposition de benne esse XPN to the XPN: Introduction of deposition
b. Before action or Pending appeal (Rule 24) does not make the deponent his witness:
– deposition in perpetuam rei memoriam 1. If the deposition is used for impeaching or
contradicting the deponent (Sec. 8, Rule
Q: When may plaintiff be permitted to take 23); or
depositions? 2. If the adverse party uses the deposition of
the other party (Sec. 4[b], Rule 23)
A:
GR: Before answer is served because plaintiff Q: May a party rebut a deposition?
must await joinder of issues.
A: Yes. At the trial or hearing, any party may rebut
XPN: In cases of special circumstances. There any relevant evidence contained in a deposition
must be some “necessity” or “good reason” for whether introduced by him or by any other party
taking the testimony immediately or that it (Sec.9, Rule 23).
would be prejudicial to the party seeking the
order to be compelled to await joinder of issue. Q: Before whom may depositions be taken?
E.g.: witness is aged or infirm, or about to leave
the court’s jurisdiction. (Herrera, Vol. II, pp. 12- A:
13, 2007 ed.) 1. If within the Philippines
a. Judge;
Q: When is leave of court necessary when taking b. Notary public; or
depositions? When is it not necessary? c. Any person authorized to administer
oaths, as stipulated by the parties in
A: writing (Sec. 10, Rule 23).
1. It is necessary
a. Before service of an answer but after the 2. If outside the Philippines
jurisdiction has been acquired over the a. On notice, before a secretary of
defendant or over the property subject of embassy or legation, consul-general,
the action consul, vice-consul, or consular agent
b. If the deposition to be taken is that of a of the Philippines;
prisoner. (sec 1, Rule 23) b. Before such person or officer as may
be appointed by commission or
2. It is not necessary when an answer has already letters rogatory; or
been served and the deponent is not confined in c. Any person authorized to administer
prison. (sec. 1, Rule 23) oaths, as stipulated by the parties in
writing (Sec. 11, Rule 23).
Q: What is the effect of substitution of parties?
Q: When shall letters rogatory or commission be
A: It does not affect the right to use depositions issued?
previously taken; and when an action has been
dismissed and another action involving the same A: They shall be issued only when necessary or
subject is afterward brought between the same convenient, on application and notice, and on such
parties or their representatives or successors-in- terms and with such direction as are just and
interest, all depositions lawfully taken and duly filed appropriate (Sec. 12, Rule 23).
in the former action may be used in the latter as if
originally taken therefor (Sec. 5, Rule 23). Q: Distinguish commission from letters rogatory.
other act by authority the former, a witness who is not known, a general description sufficient to
of such court or within the jurisdiction of the identify him or the particular class or group to
tribunal. judge or court to whom such which he belongs (Sec. 15, Rule 23).
letters are addressed.
Issued to the appropriate Note: On motion of any party upon whom the notice is
Issued to a non- judicial officer of the foreign served, the court may for cause shown enlarge or
judicial foreign officer country who will direct shorten the time (Sec. 15, Rule 23)
who will directly take somebody in said foreign
the testimony. country to take down Q: When may the court make orders for the
testimony. protection of parties and deponents?
Applicable rules of
Applicable rules of procedure
procedure are those A: After notice is served for taking a deposition by
are those of the foreign court
of the requesting
requested to act. oral examination, upon motion seasonably made by
court.
any party or by the person to be examined and for
Resorted to if the execution of
good cause shown, the court in which the action is
Resorted to if the commission is refused in
pending may make orders for the protection of
permission of the the foreign country. (There
foreign country is must be a showing that the parties and deponents (Sec. 16, Rule 23).
given. commission is inadequate or
ineffective) Q: What are the orders that the court may make
Leave of court is not for the protection of parties and deponents?
Leave of court is necessary.
necessary.
A:
Q: Who are disqualified to be a deposition officer? 1. That the deposition shall not be taken;
2. That it may be taken only at some
A: designated place other than that stated in
1. One who is related to the deponent the notice;
within the 6th degree of consanguinity or 3. That it may be taken only on written
affinity; interrogatories;
2. An employee or attorney of one of the 4. That certain matters shall not be inquired
parties; into;
3. One who is related to the attorney of the 5. That the scope of the examination shall
deponent within the same degree or be held with no one present except the
employee of such attorney; and parties to the action and their officers or
4. One who is financially interested in the counsel;
action (Sec. 13, Rule 23). 6. That after being sealed, the deposition
shall be opened only by order of the
Q: May the parties stipulate in writing for the court, or that secret processes,
taking of depositions? developments, research need not be
closed;
A: Yes. They may do so before any person 7. That the parties shall simultaneously file
authorized to administer oaths, at any time, or specified documents or information
place, in accordance with the Rules, and when so enclosed in sealed envelopes to be
taken may be used like other depositions (Sec. 14, opened as directed by the court; or
Rule 23). 8. The court may make any other order
which justice requires to protect the party
Q: What is the requirement in taking deposition or witness from annoyance,
upon oral examination? embarrassment, or oppression (Sec. 16,
Rule 23).
A: A party desiring to take the deposition of any
person upon oral examination shall give reasonable Q: What are the duties of the officer before whom
notice in writing to every other party to the action the deposition is to be taken?
(Sec. 15, Rule 23).
A: He shall put the witness on oath and shall
Q: What shall the notice state? personally, or by someone acting under his
discretion and in his presence, record the testimony
A: It shall state the time and place for taking the of the witness (Sec. 17, Rule 23).
deposition and the name and address of each
person to be examined, if known, and if the name is Note: The testimony shall be taken stenographically
unless the parties agree otherwise (Sec. 17, Rule 23)
57
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: When shall the deposition be submitted to the Note: Failure to comply with this requirement is a
witness for examination? mere defect in form which cannot affect the
admissibility of the deposition. (Herrera, Vol. II, p. 38,
A: It shall be submitted when the deposition is fully 2007 ed.)
transcribed and shall be read to or by him, unless
such examination and reading are waived by the Q: When shall the officer furnish a copy of the
witness and by the parties (Sec. 19, Rule 23). deposition to any party or to the deponent?
Q: What shall be done with the changes which the A: He shall furnish a copy upon payment of
witness desire to make? reasonable charges therefor (Sec. 22, Rule 23).
A: Any changes in form or substance shall be Q: What is the consequence of failure to attend of
entered upon the deposition by the officer with a the party giving notice?
statement of the reasons given by the witness for
making them (Sec. 19, Rule 23). A: The court may order the party giving the notice
to pay such other party the amount of the
Q: Is the signing of deposition necessary? reasonable expenses incurred by him and his
counsel in so attending, including reasonable
A: attorney’s fees (Sec. 23, Rule 23).
GR: Yes, it shall be signed by the witness.
Q: What is the consequence of failure of party
XPN: giving notice to serve subpoena?
1. Parties by stipulation waive the signing;
2. Witness is ill; A: If because of such failure, the witness does not
3. Witness cannot be found; or attend, and if another party attends in person or by
counsel because he expects the deposition of that occurring at the oral examination in the
witness to be taken, the court may order the party manner of taking the deposition in the
giving the notice to pay to such other party the form of the questions or answers, in the
amount of the reasonable expenses incurred by him oath or affirmation, or in the conduct of
and his counsel in so attending, including the parties and errors of any kind which
reasonable attorney’s fees (Sec. 24, Rule 23). might be obviated, removed, or cured if
promptly prosecuted, are waived unless
Q: How is deposition upon written interrogatories reasonable objection thereto is made at
done? the taking of the deposition.
5. As to form of written interrogatories –
A: A party desiring to take the deposition of any Objections to the form of written
person upon written interrogatories shall serve interrogatories submitted under Secs. 25
them upon every other party with a notice stating and 26 are waived unless served in
the name and address of the person who is to writing upon the party propounding them
answer them and the name or descriptive title and within the time allowed for serving
address of the officer before whom the deposition succeeding cross or other interrogatories
is to be taken. Within ten (10) days thereafter, a and within 3 days after service of the last
party so served may serve cross-interrogatories interrogatories authorized.
upon the party proposing to take the deposition. 6. As to manner of preparation – Errors and
Within five (5) days thereafter, the latter may serve irregularities in the manner in which the
re-direct interrogatories upon a party who has testimony is transcribed or the deposition
served cross-interrogatories. Within three (3) days is prepared, signed, certified, sealed,
after being served with re-direct interrogatories, a indorsed, transmitted, filed, or otherwise
party may serve recross-interrogatories upon the dealt with by the officer under Secs. 17,
party proposing to take the deposition (Sec. 25, 19, 20 and 26 are waived unless a motion
Rule 23). to suppress the deposition or some part
thereof is made with reasonable
Note: The duties of the officer under Secs. 17, 19, 20, promptness after such defect is, or with
21 & 22 of Rule 23 shall also be followed on deposition due diligence might have been,
upon written interrogatories (Secs. 26 & 27, Rule 23). ascertained (Sec. 29, Rule 23)
Q: What is the effect of errors and irregularities in Q: Who may file a petition for deposition before
depositions? action?
59
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
each, and shall ask for an order 3. any purpose by any party if the court
authorizing the petitioner to take the finds that: DR. USE
depositions of the persons to be a. The witness is Dead
examined named in the petition for the b. The witness Resides more than 100
purpose of perpetuating their testimony kilometers from the place of trial or
(Sec.2, Rule 24) hearing, or is out of the Philippines.
Unless it appears that his absence
Q: What is the rule on notice and service of was procured by the party offering
depositions before action? the deposition
c. The witness is Unable to testify
A: The petitioner shall serve a notice upon each because of age, sickness, infirmity or
person named in the petition as an expected imprisonment
adverse party, together with a copy of the petition, d. The party offering the deposition has
stating that the petitioner will apply to the court, at been unable to procure the
a time and place named therein, for the order attendance of the witness by
described in the petition. At least twenty (20) days Subpoena
before the date of the hearing, the court shall cause e. Upon application and notice, that
notice thereof to be served on the parties and such Exceptional circumstances exist
prospective deponents in the manner provided for as to make it desirable in the interest
service of summons. (Sec. 3, Rule 24) of justice (Sec. 4, Rule 23)
Q: What are the contents of the motion for Q: What is the dual function of depositions?
deposition pending appeal?
A:
A: The motion shall state: 1. Rule 23 – method of discovery, with use
1. The names and addresses of the persons on trial not necessarily contemplated; and
to be examined
2. The substance of the testimony which he 2. Rule 24 – a method of presenting
expects to elicit from each testimony.
3. The reason for perpetuating their
testimony. (Sec. 7, Rule 24). Q: What is the use of deposition pending appeal?
Note: If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of A: Depositions are taken pending appeal with the
justice, it may make an order allowing the depositions view to their being used in the event of further
to be taken, and thereupon the depositions may be proceeding in the court of origin or appellate court.
taken and used in the same manner and under the (Sec. 7, Rule 24)
same conditions as are prescribed under Rule 23. (Sec.
7, Rule 24) Note: The deposition taken under this Rule is
admissible in evidence in any action subsequently
b. USES; SCOPE OF EXAMINATION brought involving the same subject matter (Sec. 6, Rule
24)
Q: To whom may the deposition be used against?
Q: What is the scope of the examination of the
A: Any part or all of the deposition, so far as deponent?
admissible under the rules of evidence, may be
used against: A: Unless otherwise ordered by the court as
1. Any party who was present or provided by Sec. 16 or 18, Rule 23, the deponent
represented at the taking of the may be examined regarding any matter, not
deposition; or privileged, which is relevant to the subject of the
2. One who had due notice of the deposition pending action, whether relating to the claim or
(Sec. 4, Rule 23) defense of any other party, including the:
1. Existence;
Q: What are the uses of depositions? 2. Description;
3. Nature;
A: 4. Custody;
1. Contradicting or impeaching the 5. Condition;
testimony of the deponent as a witness; 6. Location of any books, documents, or
2. Any purpose by the adverse party where other tangible things; and
the deponent is a party; or
7. The identity and location of persons Q: Distinguish protection order from motion to
having knowledge of relevant facts (Sec. terminate or limit examination.
2, Rule 23).
A:
c. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE Motion to Terminate or
Protection Order (Sec.
MADE Limit Examination (Sec.
16, Rule 23)
18, Rule 23)
Q: What is the rule on objections to admissibility Provides protection to Provides such protection
of deposition? the party or witness during the taking of
before the taking of deposition.
A: Subject to the provisions of Sec. 29, Rule 23, deposition.
objection may be made at the trial or hearing to The Motion is filed with Motion or petition is filed
receiving in evidence any deposition or part thereof the court in which the in the court in which the
action is pending. action is pending or the
for any reason which would require the exclusion of
RTC of the place where
the evidence if the witness were then present and
the deposition is being
testifying (Sec. 6, Rule 23)
taken.
61
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: Distinguish depositions upon written Note: The party against whom it is directed may make
interrogatories under Rule 23, Section 25 from objections to the interrogatories. (Sec. 2, Rule 25)
interrogatories to parties under Rule 25.
Judgment by default may be rendered against a party
A: who fails to serve his answer to written
Depositions Upon Written interrogatories. (Sec.3[c], Rule 29)
Interrogatories to
Interrogatories to Parties
Parties (Rule 25) Q: How can a party make objections to the
(Sec. 25, Rule 23)
Deponent interrogatories?
Party or ordinary witness Party only
Procedure A: Objections shall be presented to the court within
With intervention of the No intervention. 10 days after service of the interrogatories. The
officer authorized by the Written interrogatories filing of the objections shall have the effect of
Court to take deposition are directed to the deferring the filing and service of the answer to the
party himself interrogatories (Sec. 3, Rule 25).
Not served upon the
adverse party directly. They Served directly upon Q: Is leave of court necessary before a party may
are instead delivered to the the adverse party (Sec be served with written interrogatories?
officer before whom the 1, Rule 25)
deposition is to be taken. A:
(Sec 26, Rule 23)
GR: It is not necessary after answer has been
Scope
served, for the first set of interrogatories.
Direct, cross, redirect, re- Only one set of
cross interrogatories
XPN: It is necessary before answer has been
Interrogatories
served because, at that time, the issues are not
15 days to answer
yet joined and the disputed facts are not yet
No fixed time unless extended or
reduced by the court clear.
the refusing party or deponent or the counsel arrest of any party or agent of a party for
advising the refusal, or both of them, to pay the disobeying any of such orders except an
proponent the amount of the reasonable order to submit to a physical or mental
expenses incurred in obtaining the order, examination (Sec. 3, Rule 29).
including attorney’s fees.
b. EFFECT OF FAILURE TO SERVE WRITTEN
If the application is denied and the court finds INTERROGATORIES
that it was filed without substantial justification,
the court may require the proponent or the Q: What is the effect of failure to serve written
counsel advising the filing of the application, or interrogatories?
both of them, to pay to the refusing party or
deponent the amount of the reasonable A:
expenses incurred in opposing the application, GR: A party not served with written
including attorney’s fees (Sec. 1, Rule 29). interrogatories may not be compelled by the
adverse party to give testimony in open court,
(2) If a party or other witness refuses to be sworn or to give a deposition pending appeal.
or refuses to answer any question after being
directed to do so by the court of the place in XPN: When allowed by the court and there is
which the deposition is being taken, the refusal good cause shown and the same is necessary to
may be considered a contempt of that court prevent a failure of justice (Sec. 6, Rule 25).
(Sec. 2, Rule 29).
Note: The sanctions adopted by the rules is not one of
(3) If any party or an officer or managing agent of a compulsion in the sense that the party is being
party refuses to obey an order made under compelled to avail of the discovery mechanics, but one
section 1 of this Rule requiring him to answer of negation by depriving him of evidentiary sources
designated questions, or an order under Rule 27 which would otherwise have been accessible to him.
to produce any document or other thing for
inspection, copying, or photographing or to 3. REQUEST FOR ADMISSION
permit it to be done, or to permit entry upon
land or other property, or an order made under Q: What admissions may be requested from the
Rule 28 requiring him to submit to a physical or adverse party?
mental examination, the court may make such
orders in regard to the refusal as are just, and A: Admission of the:
among others the following: 1. Genuineness of any material and relevant
(a) An order that the matters regarding document described in and exhibited with
which the questions were asked, or the the request; or
character or description of the thing or 2. Truth of any material and relevant matter
land, or the contents of the paper, or the of fact set forth in the request (Sec. 1,
physical or mental condition of the party, Rule 26).
or any other designated facts shall be
Note: The request for admission must be served
taken to be established for the purposes of
directly upon the party; otherwise, the party to whom
the action in accordance with the claim of
the request is directed cannot be deemed to have
the party obtaining the order;
admitted the genuineness of any relevant document
(b) An order refusing to allow the described in and exhibited with the request or relevant
disobedient party to support or oppose matters of fact set forth therein on account of failure
designated claims or defenses or to answer the request for admission (Briboneria v. CA,
prohibiting him from introducing in G.R. No. 101682, Dec. 14, 1992).
evidence designated documents or things
or items of testimony, or from introducing However, the answer to a request for admission
evidence of physical or mental condition; properly served which was signed and sworn to by the
(c) An order striking out pleadings or parts counsel of the party so requested, is sufficient
thereof, or staying further proceedings compliance with this rule, especially in the light of
until the order is obeyed, or dismissing the counsel’s authority under Secs. 21 and 23, Rule 138
action or proceeding or any part thereof, (Nestle Philippines, Inc. v. CA, G.R. No. 102404, Feb. 1,
or rendering a judgment by default against 2002)
the disobedient party;
(d) In lieu of any of the foregoing orders or
in addition thereto, an order directing the
63
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: When may request for admission be made? Q: When should objections to any request for
admission be submitted?
A: At any time after issues have been joined, a
party may file and serve upon any other party a A: They shall be submitted to the court by the party
written request for the admission by the latter. requested within the period for and prior to the
(Sec. 1, Rule 26). filing of his sworn statement and his compliance
therewith shall be deferred until such objections
a. IMPLIED ADMISSION BY ADVERSE PARTY are resolved, which resolution shall be made as
early as practicable (Sec. 2[b], Rule 26).
Q: When is there an implied admission?
Q: May an admission be withdrawn?
A:
GR: Each of the matters of which an admission A: Yes. The court may allow the party making the
is requested shall be deemed admitted. admission to withdraw or amend the admission
upon such terms as may be just (Sec. 4, Rule 26).
XPN: Unless, the party to whom the request is
directed files and serves upon the party d. EFFECT OF FAILURE TO FILE AND SERVE
requesting the admission a sworn statement REQUEST FOR ADMISSION
either denying specifically the matters of which
an admission is requested or setting forth in Q: What is the effect of failure to file and serve
detail the reasons why he cannot truthfully request for admission?
either admit or deny those matters (Sec. 2, Rule
26). A: A party who fails to file and serve a request for
admission on the adverse party on material and
Note: When the defendant is silent on the plaintiff‘s relevant facts at issue shall not be permitted to
request for admission, he is deemed to have impliedly present evidence on such facts unless otherwise
admitted the facts set forth therein (Herrera, Vol. II, p. allowed by the court for good cause shown and to
56, 2007 ed.) prevent a failure of justice (Sec. 5, Rule 26).
Q: What is the effect for failure to answer a Q: What may the court order under this mode of
request for admission? discovery?
A: The facts or documents are deemed admitted. A: Upon motion of any party showing good cause
Under the Rules, each of the matters of which an therefor, the court in which an action is pending
admission is requested shall be deemed admitted may order any party to:
unless within a period designated in the request 1. Produce and permit the inspection and
which shall not be less than 15 days after service copying or photographing, by or on behalf
thereof, or within such further time as the court of the moving party, or of any designated
may allow on motion, the party to whom the documents, papers, books, accounts,
request is directed files and serves upon the party letters, photographs, objects or tangible
requesting the admission a sworn statement either things, not privileged, which constitute or
denying specifically the matter of which an contain evidence material to any matter
admission is requested or setting forth in detail the involved in the action and which are in his
reason why he cannot truthfully either admit or possession, custody or control; or
deny those matters. (Sec. 2, Rule 26) 2. Permit entry upon designated land or
other property in his possession or
c. EFFECT OF ADMISSION control for the purpose of inspecting,
measuring, surveying, or photographing
Q: What is the effect of admission? the property or any designated relevant
object or operation thereon (Sec. 1, Rule
A: Any admission made by a party pursuant to such 27).
request is for the purpose of the pending action
only and shall not constitute an admission by him
for any other purpose nor may the same be used
against him in any other proceeding (Sec. 3, Rule
26).
Q: What is the procedure to avail the production A: The court may order requiring the delivery on
or inspection of documents or things? such terms as are just. (Sec 3, Rule 28)
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What is the effect if the physician refuses or 1. He has to furnish the other party a copy
fails to make a report? of the report of any previous or
subsequent examination of the same
A: The court may exclude his testimony. (Sec 3, Rule physical and mental condition (Sec. 3,
28) Rule 28)
2. He waives any privilege he may have in
Q: What is the effect if the party examined that action or any other involving the
requests and obtains a report on the results of the same controversy regarding the
examination? testimony of every other person who has
so examined or may thereafter examine
A: him (Sec. 4, Rule 28).
Q: What are the sanctions in case of refusal to comply with the modes of discovery?
A:
Refusal to answer any question upon oral examination
1. Order to compel an answer;
2. Contempt;
3. Require payment of reasonable fees incurred by the proponent;
4. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order.
5. Dismiss the action or the proceeding;
6. Render a Judgment by default against the disobedient party;
7. Refuse to allow the disobedient party to support or oppose claims or defenses;
8. Strike out all or any part of the pleading of the disobedient party;
9. Stay further proceedings until order is obeyed;
10. Order the arrest of the refusing party.
Refusal to produce document or thing for inspection, copying or photographing
1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order;
2. Refuse to allow the disobedient party to support or oppose claims or defenses;
3. Strike out all or any part of the pleading of the disobedient party;
4. Dismiss the action or the proceeding;
5. Render a Judgment by default against the disobedient party;
6. Stay further proceedings until order is obeyed;
7. Render a Judgment by default against the disobedient party
8. Order the arrest of the refusing party.
Refusal to submit to Physical or Mental examination
1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order;
2. Prohibit the disobedient party to introduce evidence of physical and mental conditions;
3. Strike out all or any part of the pleading of the disobedient party;
4. Dismiss the action or the proceeding;
5. Render a Judgment by default against the disobedient party;
6. Stay further proceedings until order is obeyed;
7. Render a Judgment by default against the disobedient party
Refusal to the request for admission by adverse party
1. Require payment of reasonable fees incurred by the proponent (Secs. 1-4)
2. Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26).
Note: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the implied admission. The
amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not
been affected by the amendment.
Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. The matter of how, and
when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the
case is pending, having always in mind the paramount and overriding interest of justice (Zepeda v. China Banking Corp.,
G.R. No. 172175, Oct. 9, 2006).
M. TRIAL
Q: When is a case ready for trial?
Q: What is a trial?
A: When the issues are joined. Issues are joined
A: It is a judicial process of investigating and when all the parties have placed their respective
determining the legal controversies starting with theories and the terms of the dispute are placed
the production of evidence by the plaintiff and before the court.
ending with his closing arguments (Riano, Civil
Procedure: A Restatement for the Bar, p. 394, 2009 Q: What is the rule on notice of trial?
ed.)
A: Upon entry of a case in the trial calendar, the
Q: Is trial necessary? clerk shall notify the parties of the date of its trial in
A: such manner as shall ensure his receipt of that
GR: When an issue exists, trial is necessary.
notice at least five (5) days before such date. (Sec.1,
Decision should not be made without trial.
Rule 30)
XPNs: There is no need for trial in the following
cases: 1. ADJOURNMENTS AND POSTPONEMENTS
1. Where the pleadings of the parties tender
no issue at all, a judgment on the Q: What is the rule on adjournment and
pleadings may be directed by the court postponement of trial?
(Rule 34);
A: A court may adjourn a trial from day to day, and
2. Where from the pleadings, affidavits,
to any stated time, as the expeditious and
depositions and other papers, there is
convenient transaction of business may require, but
actually no genuine issue, the court may
shall have no power to adjourn a trial for a longer
render a summary judgment (Rule 35);
period than one month for each adjournment, nor
3. Where the parties have entered into a
more than three months in all, except when
compromise or an amicable settlement
authorized in writing by the Court Administrator,
either during the pre-trial or while the
Supreme Court. (Sec 2, Rule 30)
trial is in progress (Rule 18; Art. 2028,
NCC);
Note: A motion for postponement should not be filed
4. Where the complaint has been dismissed
on the last hour especially when there is no reason
with prejudice (Sec. 5, Rule 16; Sec. 3, why it could not have been presented earlier (Republic
Rule 17; last. par., Sec. 5, Rule 7); vs Sandiganbayan)
5. Where the case falls under the operation
of the Rules on Summary Procedure (Rule A motion for continuance or postponement is not a
17); matter of right but is addressed to the sound
6. Where, the parties agree in writing, upon discretion of the court, and its action thereon will not
the facts involved in the litigation, and be disturbed by the appellate courts in the absence of
submit the case for judgment on the facts clear and manifest abuse of discretion resulting in the
agreed upon, without the introduction of denial of substantial justice.
evidence. If however, there is no
agreement as to all the facts in the case, 2. REQUISITES OF MOTION TO POSTPONE TRIAL
trial may be held only as to the disputed
facts (1996 Bar Question). Q: What are the criteria in granting
postponements?
Q: Distinguish trial from hearing.
A:
A: 1. Reason for the postponement;
Trial Hearing 2. Merits of the case of the movant
Not confined in trial but
Reception of
embraces several stages of a. FOR ABSENCE OF EVIDENCE
evidence and other
litigation, including the pre-
processes.
trial stage. Q: What are the requisites of a motion to
Does not necessarily imply postpone trial for absence of evidence?
The period for the
presentation of evidence in
introduction of
open court but the parties are A: Affidavit showing:
evidence by both
afforded the opportunity to a. The evidence is material or relevant
parties.
be heard.
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What are the requisites of a motion to Third party defendant, if any, shall adduce
postpone trial for illness of party or counsel? evidence of his defense, counterclaim, cross-
claim and fourth-party complaint
A: Affidavit showing:
a. Presence of such party or counsel at
the trial is indispensable; Fourth party, and so forth, if any, shall adduce
b. Character of illness is such as to evidence of the material facts pleaded by them
render his non-attendance excusable
A:
Parties may then respectively adduce rebutting
Civil Cases Criminal Cases
evidence only, unless the court, for good reasons
May be signed by the
Must be signed both by and in the furtherance of justice, permits them to
counsel alone who has a
the counsel and the adduce evidence upon their original case
special power of
accused.
attorney.
May be made verbally or Strict. It must always be
in writing. in writing. Upon admission of the evidence, the case shall
be deemed submitted for decision, unless the
Q: What is the rule on stipulation of facts?
court directs the parties to argue or to submit
A: The parties to any action may agree, in writing, their respective memoranda or any further
upon the facts involved in the litigation, and submit pleadings
the case for judgment on the facts agreed upon,
without the introduction of evidence. If the parties Note: If several defendants or third party defendants
agree only on some of the facts in issue, the trial and so forth having separate defenses appear by
shall be held as to the disputed facts in such order different counsel, the court shall determine the
as the court shall prescribe (Sec. 7, Rule 30) relative order of presentation of their evidence (Sec. 5,
Rule 30)
Note: Stipulation of facts is not permitted in actions
for annulment of marriage and for legal separation. Q: When is a reverse order of trial allowed?
4. ORDER OF TRIAL; REVERSAL OF ORDER A: Where the defendant, in his answer, relies upon
an affirmative defense, a reverse order of trial shall
Q: What is the procedure in trial? take place. Since the defendant admits the
plaintiff’s claim but seeks to avoid liability based on
A: Subject to the provisions of Sec. 2, Rule 31, and his affirmative defense he shall proceed first to
unless the court for special reasons otherwise prove his exemption.
directs, the trial shall be limited to the issues stated
in the pre-trial order and shall proceed as follows:
A: 7. TRIAL BY COMMISSIONERS
GR: Consolidation is discretionary upon the
court to avoid multiplicity of suits, guard against Q: Who is a commissioner?
oppression or abuse, prevent delay, clear
congested dockets, and simplify the work of the A: A person to whom a case pending in court is
trial court and save unnecessary costs and referred, for him to take testimony, hear the parties
expenses. and report thereon to the court, and upon whose
report, if confirmed, judgment is rendered.
XPNs: Consolidation becomes a matter of duty
when: Q: Distinguish delegation to clerk of court under
1. If two or more cases are pending before Rule 30 from trial by commissioner under Rule 32.
the same judge; or
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
grounds which were available to the parties during appeal the order of dismissal is reversed he shall be
the proceedings before the commissioner, other deemed to have waived the right to present
than objections to the findings and conclusions evidence. (Sec.1, Rule 33)
therein set forth, shall not be considered by the
court unless they were made before the Q: What is the effect of filing of demurrer to
commissioner. (Sec.10, Rule 32) evidence?
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: On what ground may the demurrer to evidence Q: When is there a waiver of right to present
be filed? evidence?
A: The only ground for demurrer to evidence is that A: If the demurrer is granted but on appeal the
the plaintiff has no right to relief. order of dismissal is reversed, the defendant is
deemed to have waived his right to present
evidence (Sec.1, Rule 33)
Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases.
A:
Civil Case Criminal Case
Leave of court Not required With or Without
The Plaintiff may appeal from the order of The Plaintiff cannot make an appeal from the
If granted dismissal of the case order of dismissal due to the constitutional
prohibition against double jeopardy
The Defendant may proceed to adduce his The Defendant may adduce his evidence only if
evidence the demurrer is filed with leave of court.
O. JUDGMENTS AND FINAL ORDERS 5. Judgment nunc pro tunc (Now for then) –
A judgment intended to enter into the
Q: What is a judgment? record the acts which had already been
done, but which do not appear in the
A: It is a final consideration and determination by a records. Its only function is to record
court of the rights of the parties, upon matters some act of the court which was done at
submitted to it in an action or proceeding. a former time, but which was not then
recorded, in order to make the record
Q: What are the kinds of judgment? speak the truth, without any changes in
substance or any material respect.
A: 6. Judgment sin perjuicio – Judgment
1. Judgment upon compromise – It is one without a statement of the facts in
conferred on the basis of a compromise support of its conclusion to be later
agreement entered into between the supplemented by the final judgment. This
parties. is not allowed.
2. Judgment by confession – It is one 7. Judgment by default (Sec. 3, Rule 9) –
rendered by the court when a party Rendered by the court following a default
expressly agrees to the other party’s order or after it received, ex parte,
claim or acknowledges the validity of the plaintiff’s evidence.
claim against him. 8. Judgment on the pleadings (Rule 34) –
3. Judgment upon the merits – It is one that Proper when an answer fails to tender an
is rendered after consideration of the issue because of a general or insufficient
evidence submitted by the parties during denial of the material allegations of the
the trial of the case. complaint or when the answer admits the
4. Clarificatory judgment – It is rendered to material allegations of the adverse party's
clarify an ambiguous judgment or one pleading.
difficult to comply with. 9. Summary judgment (Rule 35) – One
granted by the court for the prompt
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
the judgment of the court itself, i.e. if the Note: in the above cases, the material facts alleged in
petition is granted or denied and the the complaint shall always be proved (Sec. 1, Rule 34)
relief granted.
4. SUMMARY JUDGMENTS
Q: How should a conflict between the parts of a
decision be resolved? Q: What is a summary judgment?
GR: If there is a conflict between the ratio decidendi A: A summary judgment or accelerated judgment is
and the fallo, the fallo should prevail. Reason: the a procedural technique to promptly dispose of
fallo is the final order while the ratio decidendi is cases where the facts appear undisputed and
merely a statement ordering nothing. certain from the pleadings, depositions, admissions
and affidavits on record, of for weeding out sham
XPN: If there is a mere mistake in the fallo and the claims or defenses at an early stage of the litigation
the ratio decidendi is so clear that it states a to avoid the expense and loss of time involved in a
conclusion, the latter should prevail. (Poland trial. Its object is to separate what is formal or
Industrial Limited vs. National Development pretended denial or averment from what is genuine
Company, 467 SCRA 500) and substantial so that only the latter may subject a
party-in-interest to the burden of trial. Moreover,
Q: What are the requisites of a valid judgment? said summary judgment must be premised on the
absence of any other triable genuine issues of fact.
A: Otherwise, the movants cannot be allowed to
1. Authority of the court to hear and obtain immediate relief. A genuine issue is such
determine the case. issue of fact which requires presentation of
2. Jurisdiction – over the parties and the evidence as distinguished from a sham, fictitious,
subject matter contrived or false claim (Monterey Foods Corp. vs.
3. The parties must have been given an Eserjose, GR 153126, Sept. 11, 2003).
opportunity to adduce evidence.
4. The evidence must have been considered Q: What are the requisites of summary
by the tribunal in deciding the case. judgments?
5. The judgment must be in writing,
personally and directly prepared by the A:
judge. 1. There must be no genuine issue as to any
6. The judgment must state clearly the facts material fact, except for the amount of
and the law on which it is based, signed damages; and
by the judge and filed with the clerk of 2. The party presenting the motion for
court. summary judgment must be entitled to a
NOTE: Only for decisions and final orders on judgment as a matter of law.
merits and does not apply to those resolved
through incidental matters. a. FOR THE CLAIMANT
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
6. RENDITION OF JUDGMENTS AND FINAL ORDERS CA, 6 SCRA 530). It is not the writing of the
judgment or its signing which constitutes rendition
Q: What is a rendition of judgment? of the judgment (Castro vs. Malazo, 99 SCRA 164).
A: Rendition of judgment is the filing of the same Q: How should a judgment be prepared?
with the clerk of court. It is not the pronouncement
of the judgment in open court that constitutes the A: A judgment or final order determining the merits
rendition. Even if the judgment has already been of the case shall be in writing personally and
put in writing and signed, it is still subject to directly prepared by the judge, stating clearly and
amendment if it has not yet been filed with the distinctly the facts and the law on which it is based,
clerk of court and before its filing does not yet signed by him, and filed with the clerk of the court
constitute the real judgment of the court (Ago vs. (Sec. 1, Rule 36).
its periods, not more than six (6) months from the
7. ENTRY OF JUDGMENT AND FINAL ORDER entry of the judgment or final order (Sec. 3, Rule 38).
A: The entry of judgment refers to the physical act Q: What are the available remedies to the
performed by the clerk of court in entering the aggrieved party after rendition of judgment?
dispositive portion of the judgment in the book of
entries of judgment and after the same has become A: The remedies against a judgment may refer to
final and executory. The record shall contain the those remedies before a judgment becomes final
dispositive portion of the judgment or final order and executory and those remedies after the same
and shall be signed by the clerk of court, with a becomes executory.
certificate by said clerk that the judgment has
already become final and executory (Sec. 2, Rule 1. Before a judgment becomes final and executory,
36). the aggrieved party may avail of the following
remedies:
Q: What happens if no appeal was filed on time? a. Motion for Reconsideration;
b. Motion for New Trial; and
A: If no appeal or motion for new trial or c. Appeal
reconsideration is filed within the time provided in
the Rules, the judgment or final order shall 2. After the judgment becomes executory, the
forthwith be entered by the clerk in the book of losing party may avail of the following:
entries of judgments. (Sec. 2, Rule 36)
a. Petition for relief from judgment;
Note: There are some proceedings the filing of which is b. Action to annul judgment;
reckoned from the date of the entry of judgment: (a) c. Certiorari; and
the execution of a judgment by motion is within five d. Collateral attack of a judgment.
(5) years from the entry of the judgment (Sec. 6, Rule
39); (b) the filing of a petition for relief has, as one of
A:
MOTION FOR NEW TRIAL MOTION FOR RECONSIDERATION
Grounds
1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) 1. The damages awarded are
which ordinary prudence could not have guarded against and by excessive;
reason of which the rights of the aggrieved party was impaired; or 2. The evidence is insufficient to satisfy
2. Newly discovered evidence, which could not with reasonable the decision or final order; or
diligence, have been discovered and produced at the trial, and which 3. The decisionor final order is contrary
if presented, would probably alter the result (Sec. 1, Rule 37). to law (Sec. 1, Rule 37).
Requisites
1. Must be in writing; 1. Must point out specifically the
2. Affidavit of the existence of FAME and newly discovered evidence; conclusion of judgment;
Note: Whenever a remedy is allowed on the ground of FAME, an affidavit 2. Express reference to testimonial or
of merit is obligatory. documentary evidence or to
3. Affidavit of merit setting forth the particular facts claimed to provisions of law.
constitute a meritorious cause of action;
4. In case of newly discovered evidence:
a. Affidavit of new witnesses; and
b. Duly authenticated documents to be introduced.
Both shall be made in writing stating the ground / grounds therefor, a written notice of which shall be served by the
movant on the adverse party. (Sec. 2, Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15.
The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere
scrap of paper and will not toll the reglementary period for appeal.
When to file
77
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A motion for new trial or reconsideration should be filed within the period for taking an appeal. Hence, it must be filed
before the finality of the judgment (Sec. 1, Rule 37). No motion for extension of time to file a motion for reconsideration
shall be allowed. In DistilleriaLimtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is
within the period for taking an appeal.
Note:
The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days
from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special
proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40).
Single motion rule (applicable only on a
Second motion may be allowed so long as based on grounds not existing
judgment or final order but not to
or available at the time the first motion was made. (Sec. 5, Rule 37)
interlocutory order) (Sec. 5, Rule 37)
No new trial or hearing will take place and
the judgment will be based on the
pleadings submitted by the parties. If
If granted, the original judgment or final order shall be vacated, and the
granted, the court may amend such
action shall stand for trial de novo. The recorded evidence taken upon the
judgment or final order accordingly (Sec.
former trial, insofar as the same is material and competent to establish
3, Rule 37).
the issues, shall be used at the new trial without retaking the same (Sec. 6,
Rule 37).
Note: The amended judgment is in the
nature of a new judgment which
supersedes the original judgment.
If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37).
Available against judgments or final
Available even on appeal but only on the ground of newly discovered orders of both the trial and appellate
evidence. courts.
Both must be resolved within 30 days from the time it is submitted for resolution
Both are prohibited motions under Summary Procedure
Q: What is the period to file motion for new trial Q: What is the effect if the MNT or MR is denied?
or reconsideration?
A: The movant has a “fresh period” of 15 days from
A: Within the period for taking an appeal or within the receipt or notice of the order denying or
15 days after notice to the appellant of the dismissing the motion within which to file a notice
judgment or final order appealed from. Where a of appeal (fresh period rule). (Neypes v. CA, G.R.
record on appeal is required the appellant shall file No.141524, Sept. 14, 2005)
a notice of appeal and a record on appeal within 30
days after notice of the judgment or final order d. GRANT OF THE MOTION; EFFECT
(Section 1, Rule 40).
Note: No extension of time to file a Motion for New Q: What is the effect of a grant of the motion?
Trial or Motion for Reconsideration shall be allowed.
A: If a new trial be granted in accordance with the
Q: When is a record of appeal required? provisions of the rules, the original judgment shall
be vacated or set aside, and the action shall stand
A: A record of appeal is required only in: for trial de novo; but the recorded evidence taken
1. Special proceedings; upon the former trial so far as the same is material
2. Other cases of multiple or separate and competent to establish the issues, shall be used
appeal (Section 3, Rule 40) at the new trial without retaking the same (Sec. 6).
The filing of the motion for new trial or
Q: What is the effect of filing a MNT/ MR on the reconsideration interrupts the period to
period to appeal? appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).
A: The filing of a timely motion interrupts the If the court grants the motion (e.g., it finds that
period to appeal (Section 2, Rule 40; Section 3, Rule excessive damages have been awarded or that the
41). judgment or final order is contrary to the evidence
or law), it may amend such judgment or final order
A: The motion shall be resolved within 30 days from Q: Distinguish Newly Discovered Evidence from
the time it is submitted for resolution (Section 4, Forgotten Evidence.
Rule 37).
A:
Q: Is a MNT/ MR a prerequisite for taking an NEWLY DISCOVERED FORGOTTEN EVIDENCE
appeal or petition for review? EVIDENCE
Evidence was not Evidence was already
A: A final MNT/ MR is not a prerequisite to an available to a party available to a party and
appeal, a petition for review or petition for review during a trial, and was was not presented
on certiorari. And since the purpose is to expedite discovered only through inadvertence or
the final disposition of cases, a strict or prospective thereafter. negligence of the
application of said ruling is in order (Habaluyas v. counsel; it is not a ground
for new trial.
Japson, GR No. 70895, May 30, 1986).
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A: The right to appeal is not part of due process but RTC in its original appeal beyond that
a mere statutory privilege that has to be exercised jurisdiction, notice of period)
only in the manner and in accordance with the appeal to the RTC must
provisions of law (Stolt- Nielsen v. NLRC, GR No. disclose where appeal is to
147623, December 13, 2005). be taken. (Sec 5, rule 41)
Period available is 15 days If required, the
Q: What are the basic guidelines as regards before the judgment appellant has 30 days
appeal? becomes final and executor to file and serve both
notice and record on
appeal.
A:
Should indicate: If required, copies of
a. No trial de novo shall be made. The
1.Parties to the appeal; both the notice of
appellate courts must decide the case on the
2.Judgment or final order or appeal and the record
basis of the record, except when the part thereof appealed from; on appeal shall be filed
proceedings were not duly recorded as when 3.Material dates showing the In court and served to
there was absence of a qualified stenographer timeliness of the appeal the adverse party.
(Sec. 22[d], BO 129; Rule 21[d], Interim Rules);
b. There can be no new parties; Q: What are those cases which allow multiple
c. There can be no change of theory (Naval vs. appeals?
CA, 483 SCRA 102);
d. There can be no new matters (Ondap vs. A: The civil cases which admit of multiple appeals
Aubga, 88 SCRA 610); are:
e. There can be amendments of pleadings to 1. Actions for recovery of property with
conform to the evidence submitted before the accounting;
trial court (Dayao vs. Shell, 97 SCRA 407); 2. Actions for partition of property with
f. The liability of solidarity defendant who did accounting;
not appeal is not affected by appeal of solidarity 3. Special civil actions of eminent domain
debtor (Mun. of Orion vs. Concha, 50 Phil. 679); and foreclosure of mortgage; and
g. Appeal by guarantor does not inure to the 4. Special proceedings.
principal (Luzon Metal vs. Manila Underwriter,
29 SCRA 184); Q: What is the rationale for allowing multiple
h. In ejectment cases, the RTC cannot award appeals?
to the appellant on his counterclaim more than
the amount of damages beyond the jurisdiction A: To enable the rest of the case to proceed in the
of the MTC (Agustin vs. Bataclan, 135 SCRA event that a separate and distinct issue is resolved
342); by the court and held to be final (Roman Catholic
i. The appellate court cannot dismiss the Archbishop of Manila v. CA, GR No. 111324, July 5,
appealed case for failure to prosecute because 1996).
the case must be decided on the basis of the
record (Rule 21, Interim Rules). a. JUDGMENT AND FINAL ORDERS SUBJECT TO
APPEAL
Q: Distinguish Notice of Appeal from Record on
Appeal? Q: What kind of judgments and final orders are
subject to appeal?
A:
NOTICE OF APPEAL RECORD ON APPEAL A: An appeal may be taken only from judgments or
Deemed perfected as to Required only in
final orders that completely dispose of the case
him upon the filing of the Special Proceedings
(Sec.1, Rule 41). An interlocutory order is not
notice of appeal. and other cases of
appealable until after the rendition of the judgment
multiple or separate
If decision is made by the appeals. on the merits.
courts of 1st level, notice of
appeal need not state the Deemed perfected as b. MATTERS NOT APPEALABLE
court to which the appeal is to him with respect to
being taken (Sec.3, Rule 40) the subject matter Q: What cases are not appealable?
because there is only one thereof upon its
court to which it shall be approval. (30 days is A:
made – RTC the period for filing, 1. Order denying a petition for relief or any
only the court may similar motion seeking relief from judgment;
If decision is made by the approve the record on 2. Interlocutory order;
81
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
3. Order disallowing or dismissing an appeal; Q: Can the court consider errors not raised in the
4. Order denying a motion to set aside a assignment of errors?
judgment by consent, confession or
compromise on the ground of fraud, A:
mistake or duress, or any other ground GR: No. The court as a rule shall not consider errors
vitiating consent; not raised in the assignment of errors
5. Order of execution;
6. Judgment or final order for or against one or XPN: Sec. 5, Rule 51 precludes its absolute
more of several parties or in separate application. The court may consider an error not
claims, counterclaims, cross-claims and raised on appeal provided the same falls within any
third-party complaints, while the main case of the following categories:
is pending, unless the court allows an appeal
therefrom; and a. It is an error that affects the jurisdiction
7. Order dismissing an action without over the subject matter;
prejudice (Sec. 1 as amended by A.M. No. b. It is an error that affects the validity of
07-7-12-SC). the judgment appealed from;
c. It is an error which affects the
Note: The order denying a motion for new trial or proceedings;
reconsideration has been deleted from the list by d. It is an error closely related to or
virtue of A.M. No. 07-7-12-SC. dependent on an assigned error and
properly argued in the brief; or
Q: Can a question that was never raised in the e. It is a plain and clerical error.
courts below be allowed to be raised for the first
time on appeal? Q: What is the basis of the court’s power to rule
on such issues not raised on appeal?
A:
GR: No. A question that was never raised in the A: The court is imbued with sufficient authority and
courts below cannot be allowed to be raised for the discretion to review matters, not otherwise
first time on appeal without offending basic rules of assigned as errors on appeal, as it finds that the
fair play, justice and due process (Bank of consideration is necessary in arriving at a complete
Commerce vs. Serrano, 451 SCRA 484). For an and just resolution of the case or to serve the
appellate court to consider a legal question, it interest of justice or to avoid dispensing piecemeal
should have been raised in the court below (PNOC justice (Asian Terminals, Inc. v.NLRC, 541 SCRA 105,
vs. CA, 457 SCRA 32). It would be unfair to the 2007).
adverse party who would have no opportunity to
present evidence in contra to the new theory, c. REMEDY AGAINST JUDGMENTS AND ORDERS
which it could have done had it been aware of it at WHICH ARE NOT APPEALABLE
the time of the hearing before the trial court. it is
true that this rule admits of exceptions as in cases Q: What is the remedy in cases where appeal is
of lack of jurisdiction, where the lower court not allowed?
committed plain error, where there are
jurisprudential developments affecting the issues, A:
or when the issues raised present a matter of public GR: In those instances where the judgment or final
policy (Baluyot vs. Poblete, GR 144435, Feb. 6, order is not appealable, the aggrieved party may
2007). file the appropriate special civil action under Rule
65 (Sec. 1 Rule 41).
XPNs: The rule admits of exceptions as in cases of:
a. Lack of jurisdiction; XPN: An order denying a motion for new trial or a
b. Where the lower court committed plain motion for reconsideration may no longer be
error; assailed by way of Rule 65 as per A.M. No. 07- 7-
c. Where there are jurisprudential 12, the proper ground is to appeal from the
developments affecting the issues, or judgment (Sec. 9, Rule 37).
when the issues raised present a matter
of public policy (Baluyot v. Poblete GR No. d. MODES OF APPEAL
144435, February 6, 2007).
Q: What are the different modes of appeal?
A:
1. Ordinary appeal (Rule 40 and 41)
A:
MODE OF APPEAL PERIOD OF APPEAL PERIOD OF APPEAL IF A MR ISSUES THAT MAY BE
OR MNT WAS FILED RAISED
(Neypes Doctrine)
Ordinary Appeal (MTC to RTC)
Rule 40
a. Notice of Appeal Within 15 days after notice
to the appellant of the Within 15 days from receipt Questions of fact or
judgment or final order of the order denying motion mixed questions of fact
appealed (Sec 2. Rule 40). for reconsideration or new and law.
trial.
b. Record of Appeal Within 30 days after notice
of the judgment or final
order (Sec 2. Rule 40).
Ordinary Appeal (RTC to CA)
Original Jurisdiction Rule 41 Questions of fact or of
a. Notice of Appeal Within 15 days after notice law or mixed question of
to the appellant of the Within 15 days from receipt fact and law that has
judgment or final order of the order denying motion been raised in the court
appealed (Sec 3. Rule 41). for reconsideration or new below and is within the
trial. issues framed by the
b. Record of Appeal Within 30 days after notice parties (Sec. 15, Rule 44).
of the judgment or final
order (Sec 3. Rule 41).
83
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Petition for Review on Within 15 days from notice Within 15 days from receipt
Certiorari of the judgment, final order of the order denying motion
Rule 45 or resolution appealed from, for reconsideration or new
1. RTC to SC (Sec 2c, or within 15 days from notice trial Only questions of law
Rule 41); of the denial of the (Sec. 1, Rule 45).
2. CA to SC (Sec. 1, petitioner’s motion for new
Rule 45); trial or motion for
3. Sandiganbayan to SC reconsideration filed in due
(Sec. 1, Rule 45); time (Sec. 2, Rule 45).
4. CTA en banc to SC Note: The SC may for
(Sec. 11, RA 9282; justifiable reason grant an
Sec. 1 Rule 45 as extension of 30 days only
amended by AM No. within which to file the
07- 7-12- SC); petition provided:
5. Appeals from a a. There is a motion for
judgment or final extension of time duly
order in a petition filed and served;
for a writ of amparo b. There is full payment of
to the SC (AM No. the docket and other
07-9-12- SC); and lawful fees and the
6. Appeals from a deposit for costs; and
judgment or final c. The motion is filed and
order in a petition served and the
for a writ of Habeas payment is made
Data (AM No. 08-1- before the expiration of
16-SC). the reglementary
period (Sec. 2, Rule 45).
Note: This fresh period rule applies Rule 40,41,42,43, and 45. Accordingly, this rule was adopted to standardize the
appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of
judgment. 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. (Neypes vs. CA, GR
141524, Sept. 14, 2005)
A:
Ordinary Appeal Petition for Review
A matter of right Discretionary
All the records are elevated from the court of origin No records are elevated unless the court decrees it
Notice or record on appeal is filed with the court of origin Filed with the CA
As to duration of residual powers: Until the records are As to duration of residual powers: Until the CA gives due
transmitted to the appellate court. course to the petition.
A:
Review of Judgments, Final
Appeal by Certiorari(Rule 45) Petition for Certiorari(Rule 65)
Orders or Resolutions (Rule 64)
Petition is based on questions of
jurisdiction, that is, whether the
Petition is based only on questions of Petition is based on questions of
lower court acted without
law. law.
jurisdiction or in excess of jurisdiction
or with grave abuse of discretion.
It is a mode of appeal but the
It is a mode of appeal. It is a mode of review.
petition used is Rule 65.
85
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A: If granted, and the notice thereof is served Q: What is the effect of judgment on those who
AFTER the expiration of the period to appeal, the failed to appeal?
extension must be computed from the date of A:
notice. 1. As to affirmative relief – an appellee who
has himself not appealed may not obtain
Note: If no action is taken on the motion for extension, from the appellate court any affirmative
or if it is denied after the lapse of the period to appeal, relief other than what was granted in the
THE RIGHT TO APPEAL IS LOST. decision of the lower court
However: the rule must be qualified: Q: When should the appeal be taken?
1. The failure to pay appellate court docket
fee within the reglementary period allows A:
only discretionary dismissal, not 1. An appeal may be taken within 15 days after
automatic dismissal, of the appeal; notice to the appellant of the judgment or
2. Such power should be used in the final order appeals from (Section 2, Rule 40);
exercise of the court’s sound discretion 2. Where a record of appeal is required, the
(Republic v. Spouses Luriz, GR No. 158992, appellant shall file a notice of appeal and a
January 26, 2007). record on appeal within 30 days after notice
of the judgment or final order (Section 2, Rule
h. APPEAL FROM JUDGMENTS OR FINAL ORDERS 40).
OF THE MTC
Q: How should the RTC decide an appeal from an
Q: Discuss the procedure of appeal from decisions order of a lower court dismissing a case without
of the MTC to the RTC. trial or those rendered without jurisdiction?
A: A:
1. If the lower court dismissed the case without
Appeal decision of MTC by filing notice of appeal
trial on the merits, RTC may:
within 15 days or 30 days where a record on
a) Affirm- in such case, it is a declaration of
appeal is required from receipt of judgment.
the merits of the dismissal;
b) Affirm and the ground of dismissal is lack
of jurisdiction over the subject matter –
Copies of the notice, and record on appeal when the action of the RTC is a mere
required, shall be served on the adverse party. affirmation of the dismissal. The RTC shall
try the case on the merits as if the case
was originally filed with it;
c) Reverse – it shall remand the case for
The MTC clerk transmits record to the RTC further proceedings.
within 15 days from perfection of appeal. 2. If the case was tried on the merits by the lower
court without jurisdiction over the subject
matter, the RTC shall not dismiss the case if it
has original jurisdiction, but shall decide the
Parties are given notice that the records case, and shall admit amended pleadings and
have been received by the RTC.
additional evidence (Sec. 8, Rule 40).
87
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A: An appeal may be taken from a judgment or final Q: What is the title of the case when appealed to
order that completely disposes of the case or of a the CA under Rule 41?
particular matter therein when declared by the
Rules to be appealable (Section 1, Rule 41). A: In all cases appealed to the CA under Rule 41, the
title of the case shall remain as it was in the court of
Q: When does Rule 41 on Ordinary Appeal apply? origin but the party appealing the case shall be
referred to as the appellant and the adverse party
A: Rule 41 applies to appeals from the judgment or appellee (Sec 1. Rule 44).
final orders of the RTC in the exercise of its original
jurisdiction (Section 2a, Rule 41). Q: Distinguish a brief from a memorandum.
Q: What are the contents of appellant’s brief? alphabetically arranged, textbooks and
statutes cited with references to the
A: The appellant’s brief shall contain, in the order pages where they are cited;
herein indicated, the following: 2. Under the heading "Statement of Facts,"
the appellee shall state that he accepts
1. A subject index of the matter in the brief the statement of facts in the appellant’s
with a digest of the arguments and page brief, or under the heading "Counter-
references, and a table of cases Statement of Facts," he shall point out
alphabetically arranged, textbooks and such insufficiencies or inaccuracies as he
statutes cited with references to the believes exist in the appellant’s statement
pages where they are cited; of facts with references to the pages of
2. An assignment of errors intended to be the record in support thereof, but without
urged, which errors shall be separately, repetition of matters in the appellant’s
distinctly and concisely stated without statement of facts; and
repetition and numbered consecutively; 3. Under the heading "Argument," the
3. Under the heading "Statement of the appellee shall set forth his arguments in
Case," a clear and concise statement of the case on each assignment of error with
the nature of the action, a summary of page references to the record. The
the proceedings, the appealed rulings and authorities relied on shall be cited by the
orders of the court, the nature of the page of the report at which the case
judgment and any other matters begins and the page of the report on
necessary to an understanding of the which the citation is found (Sec. 14).
nature of the controversy, with page
references to the record; Q: What is the purpose of an appellant’s /
4. Under the heading "Statement of Facts," appellee’s brief?
a clear and concise statement in a
narrative form of the facts admitted by A: To present to the court in a concise form the
both parties and of those in controversy, points and question in controversy, and by fair
together with the substance of the proof argument on the facts and law of the case, to assist
relating thereto in sufficient detail to the court in arriving at a just and proper conclusion/
make it clearly intelligible, with page decision (De Liano v. CA (2006)).
references to the record;
5. A clear and concise statement of the Q: What is meant by Residual Jurisdiction of the
issues of fact or law to be submitted to court?
the court for its judgment;
6. Under the heading "Argument," the A: The term refers to the authority of the trial court
appellant’s arguments on each to issue orders for the protection and preservation
assignment of error with page references of the rights of the parties.
to the record. The authorities relied upon
shall be cited by the page of the report at The concept of residual jurisdiction is available at a
which the case begins and the page of the stage in which the court is normally deemed to
report on which the citation is found; have lost jurisdiction over the case or the subject
7. Under the heading "Relief," a matter involved in the appeal. There is no residual
specification of the order or judgment jurisdiction to speak of where no appeal or petition
which the appellant seeks; and has even been filed (Fernandez v. CA, 458 SCRA
8. In cases not brought up by record on 454).
appeal, the appellant’s brief shall contain,
as an appendix, a copy of the judgment or Q: What are the Residual Jurisdiction/Powers
final order appealed from (Sec. 13, Rule exercised by the trial court?
44).
A:
Q: What are the contents of the appellee’s brief? 1. Issue orders for the protection and
preservation of the rights of the parties
A: The appellee’s brief shall contain, in the order which do not involve any matter litigated
herein indicated, the following: by the appeal.
2. Approve compromise agreements by
1. A subject index of the matter in the brief parties after judgment has been
with a digest of the arguments and page rendered, (there is no rule that forbids
references, and a table of cases
89
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A: Rule 42 applies to an appeal from the judgment A:The failure of the petitioner to comply with
or final order of the RTC to the CA in cases decided any of the foregoing requirements regarding
by the former in the exercise of its appellate the payment of the docket and other lawful
jurisdiction. fees, the deposit for costs, proof of service of
the petition, and the contents of and the
Q: The RTC affirmed the appealed decision of the
MTC. You are the counsel of the defeated party documents which should accompany the
and he tells you to appeal the RTC's decision. petition shall be sufficient ground for the
1. What mode of appeal will you adopt? dismissal thereof (Sec. 3, Rule 45).
2. Within what time and in what court
should you file your appeal? Q: Is a petition for review a matter of right?
Q: What are the contents of the petition for Q: What are the contents of comment to the
review? petition?
A: A:
1. State whether or not he accepts the
1. State the full names of the parties to
statement of matters involved in the
the case, without impleading the petition;
lower courts or judges thereof either 2. Point out the insufficiencies or
as petitioners or respondents; inaccuracies in petitioner’s statement of
2. Indicate the specific material dates facts and issues; and
showing that it was filed on time; 3. State the reasons why the petition should
3. Set forth concisely a statement of the be denied or dismissed. (Sec. 5, Rule 42)
matters involved, the issues raised,
the specification of errors of fact or Q: Is the doctrine of residual jurisdiction applicable
to Appeals under Rule 42?
law, or both, allegedly committed by
the Regional Trial Court, and the A: Yes, provided that such residual jurisdiction/
reasons or arguments relied upon for power is exercised before the CA gives due course
the allowance of the appeal; to the petition (Section 8, Rule 42).
Q: What is the effect of an appeal to the judgment 2. Failure to file the notice of appeal or the
or final order? record on appeal within the period
prescribed by the Rules;
A: The appeal, as a rule, shall stay the judgment or 3. Failure of the appellant to pay the docket
final order; unless the CA, the law or the rules shall and other lawful fees as provided in
provide otherwise. Section 5 Rule 40 and Sec. 4 of Rule 41;
4. Unauthorized alterations, omissions or
Note: Civil cases decided under the Rules on Summary additions in the approved record on
Procedure shall not be stayed (Section 8b, Rule 42). appeal as provided in Sec.4 of Rule 44
5. Failure of the appellant to serve and file
Q: Give some instances where the CA may act as a the required number of copies of his brief
trial court. or memorandum within the time
provided by the Rules;
A:
6. Absence of specific assignment of errors
1. In annulment of judgment under Secs. 5
in the appellant’s brief, or of page
and 6, Rule 47. Should the CA find prima
references to the record as required in
facie merit in the petition, the same shall
Sec.13, paragraphs (a), (c), (d) and (f) of
be given due course and summons shall
Rule 44;
be served on the respondent, after which
7. Failure of the appellant to take the
trial will follow, where the procedure in
necessary steps for the correction or
ordinary civil cases shall be observed.
completion of the record within the time
2. When a motion for new trial is granted by
limited by the court in its order;
the CA, the procedure in the new trial
8. Failure of the appellant to appear at the
shall be the same as that granted by a RTC
preliminary conference under Rule 48 or
(Sec. 4, Rule 53).
to comply with orders, circulars, or
3. A petition for habeas corpus shall be set
directives of the court without justifiable
for hearing (Sec. 12, Rule 102).
cause; and
4. In petition for writs of amparo and habeas
9. The fact that the order or judgment
data, a hearing can be conducted.
appealed from is not appealable (En Banc
5. Under Sec. 12, Rule 124 of the Rules of
Resolution, February 17, 1998)
Criminal Procedure, the CA has the power
to try cases and conduct hearings, receive
Note: The grounds are discretionary upon the
evidence and perform any and all acts appellate court. The very wording of the rule uses the
necessary to resolve factual issues which word “may” instead of “shall”. This indicates that it is
fall within its original and appellate only directory and not mandatory. Sound discretion
jurisdiction. must be exercised in consonance with the tenets of
6. The CA can grant a new trial based on the justice and fair play, keeping in mind the
ground of newly-discovered evidence circumstances obtaining in each case (Mercury Drug
(Sec. 14, Rule 124). Corporation vs. De Leon, G.R. No. 165622, October 17,
7. The CA under Sec. 6, Rule 46, whenever 2008.)
necessary to resolve factual issues, may
conduct hearing thereon or delegate the RULE 45: APPEAL BY CERTIORARI TO THE SC
reception of the evidence of such issues
to any of its members or to an Q: Is the appeal under Rule 45 a matter of right?
appropriate agency or office.
8. Human Security Act. (2008 Bar Question) A: An appeal or review under Rule 45 is not a
matter of right, but of sound judicial discretion with
Q: What are the grounds for the Court of Appeals the exception of cases where the penalty of death,
to dismiss an appeal? or reclusion perpetua where the an appeal is a
matter of right leaving the reviewing court without
A: Under Sec.1 Rule 50, the CA, upon its own any discretion (People v. Flores, GR No. 170565,
motion or upon the motion of the appellee an January 31, 2006).
appeal may be dismissed on the following grounds:
Q: When does Appeal by Certiorari under Rule 45
1. Failure of the record on appeal to show apply?
on its face that the appeal was taken
within the period fixed by the Rules; A: Appeal by certiorari to the Supreme Court or
petition for review on certiorari applies in the
following cases:
91
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
1. Appeal from a judgment or final order of but only from judgments and final orders of the
the RTC in cases where only questions of court enumerated in Sec. 1 thereof. Appeals from
law are raised or are involved and the judgments and final orders of quasi-judicial
case is one decided by the said court in agencies are now required to be brought to the CA
the exercise of its original jurisdiction on a verified petition for review, under the
(Section 2c, Rule 41); requirements and conditions in Rule 43 which was
2. Appeal from the judgment, final order or precisely formulated and adopted to provide for a
resolutions of the Court of Appeals where uniform rule of appellate procedure for quasi-
the petition shall raise only questions of judicial agencies. (Fabian v. Desierto, G.R. No.
law (Section 1, Rule 45); 129742, Sept. 16, 1998)
3. Appeal from the judgment, final order or
resolutions of the Sandiganbayan where Q: Is the mode of appeal prescribed under Rule 45
the petition shall raise only questions of applicable to criminal cases?
law (Section 1, Rule 45);
4. Appeals from the decision or ruling of the A: Yes. Except in criminal cases where the penalty
Court of Tax Appeals en banc (Section 11, imposed is death, reclusion perpetua or life
RA 9282; Section 1, Rule 45 as amended imprisonment (Section 9, Rule 45).
by AM No, 07-7-12-SC);
5. Appeals from a judgment or final order in Q: Can a case decided by the RTC in the exercise of
a petition for writ of amparo to the its appellate jurisdiction be appealed by way of a
Supreme Court which may raise questions petition for review on certiorari under Rule 45?
of fact, questions of law or of both fact
and law (AM No. 08-1-16-SC, Rule on the A: No, where a case is decided by the RTC in the
Writ of Amparo (Section19) October 24, exercise of its appellate jurisdiction, regardless of
2007); whether the appellant raises questions of fact, of
6. Appeal from judgment or final order in a law or mixed questions of fact and law, the appeal
petition for the writ of Habeas Data. The shall be brought to the CA by filing a petition for
appeal may raise questions of fact or law review under Rule 42 (Quezon City v. ABS-CBN
or both (AM No. 08-1-16-SC, Rule on the Broadcasting Corporation, GR No. 166408 October
Writ of Habeas Data (Section 19) February 6, 2008).
2, 2008).
Q: Discuss the procedure for filing an appeal by
Q: When is there a question of law? How does it
certiorari.
differ from a question of fact?
A question of fact on the other hand is when the Aggrieved party files a petition for review on
doubt or difference arises as to the truth or certiorari within 15 days from notice of final
falsehood of the facts alleged. judgment or order of lower court or notice of denial
of motion for reconsideration or new trial.
Q: May a petition for review on certiorari include
prayer for the grant of provisional remedies?
Petitioner serves copies on adverse parties and the
A: The petition for review on certiorari may include lower court and pays the corresponding docket fees.
an application for a writ of preliminary injunction or
other provisional remedies. The petitioner may also
seek the same provisional remedies by verified SC may either dismiss the petition, or require the
motion filed in the same action or proceeding at appellee to comment.
any time during its pendency (Sec. 1, Rule 45 as
amended by A.M. No. 07-7-12-SC). If given due course, parties may submit memoranda.
Q: Does Rule 45 include appeals from quasi-
judicial bodies? SC may affirm, reverse, or modify judgment of the
lower court.
A: No. Under the present Rule 45, appeals may be
brought through a petition for review on certiorari
Q: Distinguish Certiorari under Rule 45 and j. APPEAL FROM JUDGMENT OR FINAL ORDERS OF
Certiorari under Rule 65. THE CA
93
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
7. The findings are contrary to those of A: A judgment, resolution or final order of the
the trial court; COMELEC and the COA may be brought by the
8. The findings of facts are conclusions aggrieved party to the SC on certiorari under Rule
without citation of specific evidence 65 by filing the petition within 30 days from notice
on which they are based; (Sec. 2, Rule 64).
9. The facts set forth in the petition as
well as in the petitioner’s main and On the other hand, judgments, final orders or
reply briefs are not disputed by the resolutions of the CSC may be taken to the CA
respondents; under Rule 43 of the Rules of Court (Sec. 1, 3 Rule
10. The findings of fact of the CA are 43).
premised on the supposed absence
of evidence and contradicted by the o. REVIEW OF FINAL JUDGMENTS OR FINAL
evidence on record; or ORDERS OF THE OMBUDSMAN
11. Those filed under Writs of amparo,
habeas data, or kalikasan. Q: Does the CA have jurisdiction to review the
decisions in criminal and administrative cases of
k. APPEAL FROM JUDGMENTS OR FINAL ORDERS the Ombudsman?
OF THE CTA
A: It depends
Q: Where should the appeal from the decision of
the CTA en banc be taken? 1. In administrative disciplinary cases, the
rulings of the Office of the Ombudsman
A: A party adversely affected by a decision or ruling are appealable to the CA under Rule 43.
of the CTA en banc may file with the SC a verified
Note: The provision of Section 27 of RA 6770 (The
petition for review on certiorari pursuant to Rule 45
Ombudsman Act of 1987) insofar as it allowed a
(Sec. 12, R.A. 9282; A.M. No. 07-7-12-SC).
direct appeal to the Supreme Court was declared
unconstitutional as it increased the appellate
Q: Melissa filed with the BIR a complaint for
jurisdiction of the SC without the advice and
refund of taxes paid, but it was not acted upon. concurrence of the Court (Fabian v. Deseirto, 356
So, she filed a similar complaint with the CTA SCRA 787).
raffled to one of its divisions. Melissa's complaint
was dismissed. Thus, she filed with the CA a 2. In criminal cases, the ruling of the
petition for certiorari under Rule 65. Does the CA Ombudsman shall be elevated to the SC
have jurisdiction over Melissa's petition? by way of Rule 65. Where the findings of
the ombudsman on the existence of
A: No. A decision of a division of the CTA is probable cause in criminal cases is tainted
appealable within 15 days to the CTA en banc. On with grave abuse of discretion amounting
the other hand, a party adversely affected by a to lack or excess of jurisdiction, the
decision or ruling of the CTA en banc may file with aggrieved party may file a petition for
the SC a verified petition for review on certiorari certiorari with the SC under Rule 65
pursuant to Rule 45 of the Rules of Court. (Enemecio vs. Office of the Ombudsman,
419 SCRA 82)
R.A. 9282 expanded the jurisdiction of the CTA and
elevated the same to the level of a collegiate court Q: What is the remedy of a party aggrieved by the
equivalent to the rank of the CA. Hence, the CA no decision of the Sandiganbayan?
longer has jurisdiction to review the decisions of
the CTA en banc. (2006 Bar Question) A: Decisions and final orders of the Sandiganbayan
shall be appealable to the SC by way of certiorari
l. REVIEW OF FINAL JUDGMENTS OR FINAL under Rule 45 raising pure questions of law (Section
ORDERS OF THE COA 1, Rule 45).
m. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE COMELEC p. REVIEW OF FINAL JUDGMENTS OR FINAL
n. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE NLRC
ORDERS OF THE CSC
Q: What is the remedy of a party aggrieved by the
Q: What is the remedy of a party aggrieved by the decision of the NLRC?
decision of the COMELEC, COA and CSC?
A: The remedy is to promptly move for the
reconsideration of the decision and if denied, to
timely file a special civil action of certiorari under A: Appeals from judgment and final orders of quasi-
Rule 65 within 60 days from notice of the decision. judicial bodies/ agencies enumerated in Rule 43 are
In observance of the doctrine of hierarchy of courts, now required to be brought to the CA under the
the petition for certiorari should be filed in the CA requirements and conditions set forth in Rule 43
(St. Martin Funeral Homes vs. NLRC, G.R. No. (Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128).
130866, September 16, 1998). If filed with SC it shall
be dismissed instead of referring the action to the Q: What issues may be raised on appeal?
CA (A.M. No. 99-2-01-SC).
A: The appeal under Rule 43 may raise issues
Note: Those judgments and final orders or resolutions involving questions of fact, of law or mixed
of the Employees Compensation Commission should questions of fact and law (Section 3, Rule 43).
be brought to the CA through a petition for review
under Rule 43. Q: What are the contents of comment to the
petition and when must it be filed?
q. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF QUASI- JUDICIAL AGENCIES A: The comment shall be filed within 10 days from
notice in 7 legible copies and accompanied by
Q: What is a quasi-judicial agency? clearly legible certified true copies of such material
portions of the record referred to therein together
A: An organ of the government other than a court with other supporting papers.
and other than a legislature, which affects the
rights of private parties through either adjudication The comment shall:
or rule-making. 1. Point out the insufficiencies or
inaccuracies in petitioner’s statement of
Q: What are the agencies included under Rule 43? facts and issues; and
2. State the reasons why the petition should
A: be denied or dismissed. (Sec. 9 Rule 43)
1. Civil Service Commission;
2. Central Board of Assessment Appeals; Note: The appellate court may also require the filing of
3. Securities and Exchange Commission; a reply, but further submissions are governed by the
4. Office of the President; resolution in AM No. 99-2-04.
5. Land Registration Authority;
6. Social Security Commission; Q; What is the effect of the appeal on the award,
7. Civil Aeronautics Board; judgment, final order or resolution?
8. Bureau of Patents, Trademarks and
Technology Transfer; A: The appeal shall not stay the award, judgment,
9. National Electrification Administration; final order or resolution sought to be reviewed
10. Energy Regulatory Board; unless the CA shall direct otherwise upon such
11. National Telecommunications terms as it may deem such (Section 12, Rule 43).
Commission;
12. Department of Agrarian Reform under Q: What is the remedy of a party aggrieved by the
R.A. 6657; decision of a Quasi-judicial Agency?
13. GSIS;
14. Employee Compensation Commission; A: Within 15 days from:
15. Agricultural Inventions Board; 1. Notice of the award, judgment, final order
16. Insurance Commission; or resolution; or
17. Philippine Atomic Energy Commission; 2. Date of publication, if publication is
18. Board of Investments; required by law for its effectivity; or
19. Construction Industry Arbitration 3. Denial of petitioner’s MNT or MR, the
Commission; and aggrieved party must file a verified
20. Voluntary Arbitrators authorized by law petition for review under rule 43 in 7
(Sec. 1 Rule 43). legible copies with the CA. Furnish a copy
to the lower court and adverse party. The
Note: The office of the Prosecutor is NOT a quasi- appeal may involve questions of fact, of
judicial body and its action approving the filing of law, or mixed questions of fact and law.
information is not appealable to the CA under Rule 43.
Q: Is extension of time to file petition for review
Q: Where should the judgments and final orders of allowed?
quasi- judicial bodies be appealed?
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A: Yes. Upon proper motion and the payment of the (Quelnan v. VHF Philippines, G.R. No. 138500, Sept.
full amount of the docket fee before the expiration 16, 2005).
of the reglementary period, the CA may grant
additional period of 15 days only within which to Q: Purcon was hired as a seaman, he was
file a petition for review. No further extension shall repatriated due to his ailment. After undergoing
be granted except for the most compelling reason some medications, he went back to work but was
and in no case to exceed 15 days. (Sec. 4, Rule 43) not re-hired due to lack of vacany. Purcon then
filed a case for reimbursment of medical expenses
Q: Distinguish appeal from RTC as appellate court with the NLRC. The LA dismissed the complaint for
under Rule 42 and appeal from quasi-judicial lack of merit. A memorandum of appeal with the
agencies under Rule 43. NLRC was filed but was dismissed. Petitioner filed
petition for review on certiorari under Rule 65
A: with the CA which was also denied, the MR was
RTC as likewise denied. This prompted the petitioner to
Appellate Appeal from Quasi-judicial agencies file with the SC a petition for review on certiorari
Court (Rule (Rule 43) under Rule 45 which was denied. As a last
42) recourse, petitioner filed a petition for relief from
GR: Decision is immediately judgment. Whether or not the petitioner can avail
Decision is executory. It is not stayed by an of a petition for relief from judgment after the
stayed by an appeal denial of the SC of his petition for review?
appeal. XPN: CA shall direct otherwise upon
such terms as it may deem just A: No. A petition for relief from judgment is not an
Factual available remedy in the Court of Appeals and
Factual findings are conclusive upon Supreme Court. It should be filed with the same
findings not
CA if supported by substantial
conclusive to court which rendered the decision. While Rule 38
evidence.
CA. uses the phrase "any court," it refers only to
Municipal/Metropolitan and Regional Trial Courts.
Q: Is Rule 43 applicable where the resolution was If a petition for relief from judgment is not among
issued by a quasi-judicial agency with grave abuse the remedies available in the CA, with more reason
of discretion? that this remedy cannot be availed of in the
Supreme Court. This Court entertains only
A: No, Rule 43 is not applicable where the petition questions of law. A petition for relief raises
contains an allegation that the challenged questions of facts on fraud, accident, mistake, or
resolution is patently illegal and was issued with excusable negligence, which are beyond the
grave abuse of discretion and beyond respondent’s concerns of this Court (Purcon v. MRM Philippines
jurisdiction. The appropriate remedy is Rule 65 on Inc., GR No. 182718, September 26, 2008).
certiorari.
Q: Distinguish motion for new
Q: When is the withdrawal of an appeal a matter trial/reconsideration from petition for relief from
of right? judgment.
Note: A party who has filed a timely motion for new Q: Where should the petition be filed?
trial cannot file a petition for relief after the former is
denied. The two remedies are exclusive of one A:
another. The remedy is to appeal from the judgment
1. If the petition is filed because of the first
(Section 9,Rule 38; Francisco v. Puno, 108 SCRA 427).
ground, the petition shall be filed in such
court and in the same case (not in
Q: Who may file the petition for relief from
another or higher court). The petition
judgment?
shall pray that the judgment, order or
A: A petition for relief from judgment together with
proceeding be set aside (Sec. 1, Rule 38).
a motion for new trial and a motion for
2. If the petition is filed under the second
reconsideration are remedies available only to
ground, the petition shall likewise be filed
parties in the proceedings where the assailed
in such court and in the same case (not in
judgment is rendered. A person who was never a
another or higher court) but the prayer
party to the case, or even summoned to appear
this time is that the appeal be given due
therein, cannot avail of a petition for relief from
course (Sec. 2, Rule 38)
judgment. (Alaban v. CA, 470 SCRA 697)
b. TIME TO FILE PETITION
Q: What are the duties of the court after an
answer to the petition has been filed
Q: When should the petition for relief be filed?
A: After the hearing and the court finds the
A:
allegations therein not true, it shall dismiss the
1. Within sixty (60) days after the petitioner
petition.
learns of the judgment, final order, or
other proceeding to be set aside; and
If the allegations are true, the court shall set aside
2. Not more than six (6) months from entry
the judgment, final order or proceeding complained
of such judgment, order or other
of. (Sec. 6, Rule 38)
proceeding (Sec. 3).
Q: Is the remedy of preliminary injunction
Note: These two periods must concur and are also not
available pending the resolution of the petition for
extendible and never interrupted (Riano, Civil
relief?
Procedure: A Restatement for the Bar, p. 479, 2009
ed.).
A: Yes. The court may grant such preliminary
injunction as may be necessary for the preservation Q: May a defendant who has been declared in
of the rights of the parties upon the filing of a bond default right away avail of a petition for relief from
(Sec. 5, Rule 38). the judgment subsequently rendered in the case?
97
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A: No. The remedy of petition for relief from remedies are no longer available through no fault of
judgment is available only when the judgment or the petitioner (Sec. 1, Rule 47).
order in question is already final and executory, i.e.,
no longer appealable. As an extraordinary remedy, Q: Who may avail this remedy?
it may be availed only in exceptional cases where
no other remedy is available. (2007 Bar Question) A: A person need not be a party to the judgment
sought to be annulled. What is essential is that he
c. CONTENTS OF THE PETITION can prove his allegation that the judgment was
obtained by the use of fraud and collusion and he
Q: What is the form and contents of the petition would be adversely affected thereby (Islamic
for relief? Da’wah Council v. CA, G.R. No. 80892, Sept. 29,
1989).
A:
1. The petition for relief must be verified; The extraordinary action to annul a final judgment
2. It must be supported by affidavit showing is restricted to the grounds provided by law to
the FAME relied upon; and prevent it from being used by a losing party to
3. The affidavit of merit accompanying the make a mockery of a duly promulgated decision
petition must also show facts constituting that has long become final and executory.
the petitioner’s good or substantial cause
of action or defense. Q: Where should the petition be filed?
A: Fraud is regarded as extrinsic where it prevents a amount of the dishonored check. The trial court
party from having a trial or from preventing a party ruled in favor of Jenny. Allied remitted to the
from having a trial or from presenting his entire sheriff a manager’s check amounting to P800,000
case to the court, or where it operates upon drawn on Rhea’s account which was duly received
matters pertaining not to the judgment itself but to by Jenny. Rhea filed a petition in the CA seeking to
the manner in which it is procured (Alaban v. CA, annul and set aside the trial court’s decision on the
GR no. 156021, September 23, 2005). ground of extrinsic fraud. The appellate court
granted Rhea’s petition. Is the CA correct?
Q: What is meant by lack of jurisdiction?
A: Yes. Annulment of judgment is a remedy in law
A: Lack of jurisdiction as a ground for annulment of independent of the case where the judgment
judgment refers to either lack of jurisdiction over sought to be annulled is promulgated. It can be
the person of the defending party or over the filed by one who was not a party to the case in
subject matter of the claim. which the assailed judgment was rendered. Here,
Rhea may avail of the remedy of annulment of
b. PERIOD TO FILE ACTION judgment under Rule 47. The ordinary remedies of
new trial, appeal and petition for relief were not
Q: What is the period to file an action? available to her for the simple reason that she was
not made a party to the suit against Allied
A: (Villanueva v. Nite, G.R. No. 148211, July 25, 2006).
1. If based on extrinsic fraud, the action 5. COLLATERAL ATTACK OF JUDGMENTS
must be filed within four (4) years from its
discovery. Q: What is a collateral attack on judgment?
2. If based on lack of jurisdiction, the action
must be brought before the action is A: It is made in another action to obtain a different
barred by laches or estoppel (Sec. 2, Rule relief; an attack on the judgment is made as an
47). incident in said action. This is proper only when the
judgment, on its face is null and void, as where it is
c. EFFECTS OF JUDGMENTS OF ANNULMENT patent that the court which rendered such
judgment has no jurisdiction (Co vs. Court of
Q: What is the effect of a judgment of annulment? Appeals, 196 SCRA 705).
A: If based on lack of jurisdiction- It shall have the Q. EXECUTION, SATISFACTION AND EFFECT OF
effect of setting aside the questioned judgment or JUDGMENTS
final order and rendering the same null and void
but the judgment of annulment is without prejudice Q: What is execution?
to the refilling of the original action in the proper
court (Sec.7, Rule 47) A: It is a remedy provided by law for the
enforcement or satisfaction of a final judgment.
Note: The prescriptive period for the refilling of the
action shall be deemed suspended from the filing of 1. DIFFERENCE BETWEEN FINALITY OF JUDGMENT
such original action until the finality of the judgment of FOR PURPOSES OF APPEAL; FOR PURPOSES OF
annulment. But shall not however, be suspended EXECUTION
where the extrinsic fraud is attributable to the plaintiff
in the original action (Sec. 8, Rule 47).
Q: What is meant by final judgment?
If based on extrinsic fraud- The court, upon motion,
A:
may order the trial court to try the case as if a
1. The term “final” when used to describe a
motion for new trial was granted (Sec. 9, Rule 47).
judgment may be used in two senses. In
the first, it refers to a judgment that
Q: Rhea took out a loan of P1 Million from Jenny.
disposes of a case in a manner that leaves
To secure the loan, Rhea issued Jenny an Allied
nothing more to be done by the court in
check in the amount of P750,000 which, however,
respect thereto. In this sense, a final
was dishonored due to a material alteration. Rhea
judgment is distinguished from an
then remitted P600,000 to Jenny as partial
interlocutory order which does not finally
payment of the loan with the balance payable at a
terminate or dispose of the case (Rudecon
later date. Prior to the due date for the payment
Management Corp. vs. Singson, 454 SCRA
of the balance, Jenny filed an action for a sum of
612).
money and damages against Allied for the full
99
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
2. In another sense, the word “final” may 1. The judgment has become final and
refer to a judgment that is no longer executory(Section 1, Rule 39);
appealable and is already capable of
being executed because the period for Note: Once a judgment becomes final and
appeal has elapsed without a party having executory, the prevailing party can have it
perfected an appeal or if there has been executed as a matter of right, and the
appeal, it has already been resolved by a issuance of a writ of execution becomes the
highest possible tribunal (PCGG vs. ministerial duty of the court. Once a
Sandiganbayan, 455 SCRA 526). In this decision becomes final and executory, it is
sense, the judgment is commonly the ministerial duty of the presiding judge to
referred to as one that is final and issue a writ of execution except in certain
executory. cases, as when subsequent events would
render execution of judgment unjust
Q: Distinguish final judgments for purposes of (Mangahas vs. Paredes, GR 157866, Feb. 14,
appeal from final judgments for purposes of 2007).
execution.
2. Judgment debtor has renounced or
A: waived his right to appeal;
Final Judgments for Final Judgments for 3. The period for appeal has lapsed without
purposes of appeal purposes of execution an appeal having been filed;
Dispose of, adjudicate, or Becomes final and 4. Having been filed, the appeal has been
determine the right of the executory by operation resolved and the records of the case have
parties. of law. been returned to the court of origin
After lapse of period to (Florendo v. Paramount Insurance Corp,
appeal and no appeal now MAA General Insurance Inc., GR No.
Still subject to appeal was perfected, no 167976, January 20, 2010).
further action can be
had. Q: May the court which rendered the judgment
Execution of judgment not Execution of judgment a refuse to issue writ of execution?
a matter of right. matter of right.
A:
2. WHEN EXECUTION SHALL ISSUE GR: Execution of judgment is a matter of right
on the part of the winning party. The court
a. AS A MATTER OF RIGHT cannot refuse execution.
32644, Oct. 4, 1930) or is incomplete (Del 1. There must be a motion filed by the
Rosario v. Villegas, G.R. No. L-25726, Nov. prevailing party with notice to the
22, 1926); adverse party;
5. When facts and circumstances transpire 2. There must be a hearing of the motion for
which would render execution inequitable discretionary execution;
or unjust (Bacharach Corp. v. CA, G.R. No. 3. There must be good reasons to justify the
128349, Sept. 25, 1998); discretionary execution; and
6. When execution is sought more than 5 4. The good reasons must be stated in a
years from its entry without the judgment special order (Sec. 2, Rule 39)
having been revived;
7. When execution is sought against Q: Where should you file an application for
property exempt from execution under discretionary execution?
Sec. 13, Rule 39; or When the refusal to
execute the judgment. A:
1. The motion for discretionary execution
b. AS A MATTER OF DISCRETION shall be filed with the trial court:
a. While it has jurisdiction over the case and
Q: When is execution discretionary? b. While it is in possession of either the
original record or the record on appeal; or
A:
1. Execution pending appeal; and 2. After the trial court has lost jurisdiction,
2. While trial court has jurisdiction over the the motion for execution pending appeal
case and is in possession of either the may be filed in the appellate court
original record or record on appeal; (Bangkok Republic Company Limited vs.
3. When trial court has lost jurisdiction but Lee, G.R. No. 159806, January 20, 2006).
has not transmitted records of the case to
the appellate court; and Q: What is the remedy where the judgment
4. When trial court has lost jurisdiction and subject to discretionary execution is reversed or
has transmitted records (motion for annulled?
execution pending appeal with appellate
court). A: The trial court may, on motion, issue such orders
5. Execution of several, separate or partial of restitution or reparation of damages as equity
judgment(Florendo v. Paramount and justice may warrant under the circumstances
Insurance Corp, now MAA General (Sec. 5, Rule 39).
Insurance Inc., GR No. 167976, January
20, 2010).. Q: In a complaint filed by Granger for rescission
and damages, the RTC ruled against JP Latex,
Note: As such exception, the court’s discretion in defendant. On Aug. 5, 2006, Granger moved for
allowing it must be strictly construed and firmly the execution pending appeal of the decision.
grounded on the existence of good reasons. Upon receipt of the decision, JP Latex filed a
“Good reasons,” has been held, to consist of motion for reconsideration (MR). The RTC granted
compelling circumstances that justify immediate the execution “pending appeal” without acting on
execution lest the judgment becomes illusory. the motion for reconsideration. Is the order of the
Circumstances must be superior, outweighing the trial court correct?
injury or damages that might result should the
losing party secure a reversal of the judgment. A: No. Discretionary execution is allowed only when
Lesser reasons would make of execution pending the period to appeal has commenced but before
appeal, instead of an instrument of solicitude and the trial court loses jurisdiction over the case. The
justice, a tool of oppression and inequity period to appeal where a motion for
(Florendov. ParamountInsurance Corp. reconsideration has been filed commences only
(nowrenamed MAA General Insurance Inc.), G.R.
upon the receipt of the order disposing of the MR.
No. 167976, Jan. 20, 2010).
The pendency of a MR, therefore, prevents the
running of the period to appeal.
Q: What are the requisites for discretionary
execution? The MR filed by JP Latex had not been acted upon
by the RTC before it ruled on the motion for
A: execution “pending appeal.” The pendency of the
MR has prevented the period to appeal from even
commencing. The period within which a party may
101
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
move for an execution pending appeal of the RTC’s A: It may be stayed upon approval by the proper
decision has not yet started. Thus, where there is court of a sufficient supersedeas bond filed by the
pending MR, an order of execution pending appeal party against whom execution is directed,
is improper and premature. (JP Latex Technology, conditioned upon the performance of the judgment
Inc. v. Ballons Granger Balloons, Inc., et. al., G.R. or order allowed to be executed in case it shall be
No. 177121, Mar. 16, 2009) finally sustained in whole or in part (Sec. 3 Rule 39).
Note: 5 and 10 year periods not applicable to judgment for support and special proceedings.
a. EXECUTION BY MOTION OR BY INDEPENDENT prevailing party after 5 years from the date of entry
ACTION of judgment, such motion is considered null and
void (Tag Fibers, Inc. vs. NLRC, 344 SCRA 29; Terry
Q: What are the modes of execution of judgment? vs. People, 314 SCRA 669)
Q: When is there a need to file an independent XPNs: The court in certain instances allowed
action for execution? execution of the judgment by mere motion despite
the lapse of the 5 year period. In instances where
A: There is a need for the prevailing party to file an the delay in the execution of the judgment were
independent action for the revival of the judgment through causes attributable to the judgment debtor
before the action is barred by statute of limitations or when the delay is incurred for his benefit.
when a writ of execution is issued by motion of the
Q: What is revival of judgment? Q: What are the defenses available in an action for
enforcement?
A: This means that from the date of the finality of
judgment, no motion was filed for the execution of A:
said judgment, thus the need for its enforcement by 1. Prescription;
action. 2. Satisfaction of claim; and
3. Counterclaims.
Q: When should the action for revival of judgment
be filed? Q: Will execution issue upon death of a party?
1. Those judgments which by express Q: What are the contents of a writ of execution?
provision of the rules are immediately
executor and are not stayed by appeal A:
(Sec. 4, Rule 39); 1. The name of the court which granted the
Note: These are: judgment for injunction, motion;
receivership, accounting and support unless 2. The case number;
the court rule otherwise. 3. The dispositive portion of the judgment
or order subject of the execution; and
2. Those judgments that have become the 4. Shall require the sheriff or other proper
object of discretionary execution (Sec. 2, officer to whom it is directed to enforce
Rule 39).
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
the writ according to its terms (Sec.8, Rule a. Demand from the obligor the immediate
39) payment of the full amount stated in the
judgment including the lawful fees in
Note: The motion for execution and the writ of cash, certified check payable to the
execution must state specifically the amount of judgment obligee or any other form of
interest, costs, damages, rents, or profits due as of the payment acceptable to him.
date of issuance of the writ, aside from the principal b. If the judgment obligor cannot pay all or
obligation. part of the obligation in cash, certified
Q: Is a writ of execution subject to a motion to check or other mode of payment, the
quash? officer shall levy upon the properties of
the judgment obligor. The judgment
A: A writ of execution may be quashed on certain obligor shall have the option to choose
grounds: which property or part thereof may be
1. When the writ of execution varies the levied upon. If the judgment obligor does
judgment; not exercise the option, the officer shall
2. When there has been a change in the first levy on the personal properties, if
situation of the parties making the any, and then on the real properties if the
execution inequitable or unjust; personal properties are insufficient to
3. When execution is sought to be enforced answer for the personal judgment but the
against a property exempt from sheriff shall sell only so much of the
execution; property that is sufficient to satisfy the
4. When it appears that the controversy has judgment and lawful fees.
never been submitted to the judgment of c. The officer may levy on the debts due the
the court; judgment debtor including bank deposits,
5. When the terms of the judgment are not financial interests, royalties, commissions
clear enough and there remains room for and other personal property not capable
interpretation thereof; of manual delivery in the possession or
6. When it appears that the writ of con troll of third parties. This is called
execution has been improvidently issued; garnishment. (Sec. 9, rule 39)
7. When it appears that the writ of
execution is defective in substance, or is Q: What is levy?
issued against the wrong party, or that
the judgment debt has been paid or A: It is the act by which an officer sets apart or
otherwise satisfied or the writ is issued appropriates a part of the whole of the property of
without authority (Reburiano v. CA, 301 the judgment debtor for purposes of the execution
SCRA 342). sale.
Q: What are the 3 ways to enforce a judgment for A: It is the act of appropriation by the court when
money? the property of the debtor is in the hands of third
persons.
A:
1. Immediate payment on demand Note: The garnishee or the third person who is in the
2. Satisfaction by levy possession of the property of the judgment debtor is
- The judgment obligor exercises deemed a forced intervenor.
discretion to choose which property
to levy; if not exercised, the officer Q: Distinguish attachment from garnishment.
shall levy first on personal property,
then on real property. The sheriff A: Attachment refers to corporeal property in the
shall only sell property sufficient to possession of the judgment debtor.
satisfy the judgment and other
lawful fees. Garnishment refers to money, stocks, credits and
3. Garnishment of debts and credits. other incorporeal property which belong to the
judgment debtor but is in the possession or under
Q: What are the steps in executing a judgment for the control of a third person. (1999 Bar Question)
money?
Q: The writ of execution was returned unsatisfied.
A: The judgment obligee subsequently received
A: Sec. 9, Rule 39 lays down the procedure to be Q: How can judgment be executed for the
followed by the sheriff in implementing money following specific acts if the judgment debtor
judgments. refuses/fails to comply therewith?
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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Q: What is the procedure for a 3rd party claim? A: No, Cathy has not been impleaded as a party
defendant. He cannot be held liable for the
A: 3rd party should make an affidavit of his title judgment against Bob without a trial. In fact, since
thereto, or right of possession thereof, and should no bond was filed by Allen, the sheriff is liable to
serve such affidavit upon the sheriff and a copy Cathy for damages. Cathy can file a separate action
thereof to the judgment obligee. to enforce his third-party claim. It is in that suit that
Allen can raise the ground of fraud against Cathy.
Q: What is the duty of the officer if the property However, the execution may proceed where there
sought to be levied on is claimed by another is a finding that the claim is fraudulent (Tanongan v.
person and proper proof of ownership or Samson, G.R. No. 140889, May 9, 2002). (2005 Bar
possession is served upon the officer making levy? Question)
A: If the property levied on is claimed by any person Q: If the writ of execution is issued in the name of
other than the judgment obligor or his agent, and the Republic of the Philippines and the property
such person makes an affidavit of his title thereto object of the levy is being claimed by a third
or right to the possession thereof, stating the person, is there a necessity for filing a bond?
grounds of such right or title, and serves the same
upon the officer making the levy and a copy thereof A: When the writ of execution is issued in favor of
upon the judgment obligee, the officer shall not be the Republic of the Philippines, or any officer duly
bound to keep the property, unless such judgment representing it, the filing of such bond shall not be
obligee, on demand of the officer, files a bond required, and in case the sheriff or levying officer is
approved by the court to indemnify the third-party sued for damages as a result of the levy, he shall be
claimant in a sum not less than the value of the represented by the Solicitor General and if held
property levied on. In case of disagreement as to liable therefor, the actual damages adjudged by the
such value, the same shall be determined by the court shall be paid by the National Treasurer out of
court issuing the writ of execution. No claim for such funds as may be appropriated for the purpose.
damages for the taking or keeping of the property
may be enforced against the bond unless the action a. IN RELATION TO THIRD PARTY CLAIM IN
therefor is filed within one hundred twenty (120) ATTACHMENT AND REPLEVIN
days from the date of the filing of the bond.
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VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
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time within 1 year from the date of the registration 2. Reversal or setting aside of
of the certificate of sale by paying the purchaser: judgment;
1. the amount of his purchase; 3. The fact that the property was
2. amount of any assessments or taxes which the exempt from execution; or
purchaser may have paid after purchase; 4. If a third person has vindicated his
3. if the purchaser be also a creditor having a claim to the property (Sec. 34).
prior lien to that of the redemptioner, other
than the judgment under which such purchase Q: What is the remedy of purchaser of real
was made, the amount of such other lien; and property sold on execution in the above
4. With 1 percent per month interest up to the situations?
time of redemption.
A:
Q: Is the bona fide tender or delivery of the 1. Bring an action against the judgment
redemption price required in offer to redeem? creditor;
2. File a motion for revival of judgment in his
A: name against the judgment debtor; or
GR: The offer to redeem must be accompanied 3. Bring an action to recover possession of
with a bona fide tender or delivery of the property.
redemption price.
7. EXAMINATION OF JUDGMENT OBLIGOR WHEN
XPN: The right to redeem is exercised through JUDGMENT IS UNSATISFIED
the filing of a complaint to redeem in the
courts. Q: What is the effect when the judgment was
returned unsatisfied?
Q: What are the rights of a judgment debtor?
A:
A: 1. The judgment creditor may cause
1. To remain in possession of the property examination of the judgment debtor as to
until the expiration of period of his property and income (Sec. 36) (2008
redemption; Bar Question);
2. To collect rents and profits until the 2. The judgment creditor may cause
expiration of period of redemption (Sec. examination of the debtors of the
32); judgment debtor as to any debt owed by
3. To use the property in the same manner it him or to any property of the judgment
was previously used; debtor in his possession (Sec. 37);
4. To make necessary repairs; and 3. If the court finds, after examination, that
5. Use it in the ordinary course of husbandry there is property of the judgment debtor
(Sec. 31). either in his own hands or that of any
person, the court may order the property
Q: When is the purchaser entitled to possession applied to the satisfaction of the
and conveyance of the property sold on judgment (Sec. 37);
execution? 4. If the court finds the earnings of the
judgment debtor are more than sufficient
A: The purchaser is entitled to possession and for his family’s needs, it may order
conveyance of the property if no redemption is payment in fixed monthly installments
made within one (1) year from the date of the (Sec. 40);
registration of the certificate of sale (Sec. 33). 5. The court may appoint a receiver for the
property of the judgment debtor not
Q: What are the instances when the purchaser exempt from execution or forbid a
may recover the purchase price from the judgment transfer or disposition or interference
obligor? with such property (Sec. 41);
6. If the court finds that the judgment
A: debtor has an ascertainable interest in
1. If the purchaser or his successor-in- real property either as mortgagor,
interest fails to recover possession of the mortgagee, or otherwise, and his interest
property sold on execution sale; or can be ascertained without controversy,
2. Is evicted due to: the court may order the sale of such
1. Irregularities in the proceedings interest (Sec. 42); and
concerning the sale;
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VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
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UST GOLDEN NOTES 2011
5. Terms of the judgment are not clear and Q; Discuss the effect of judgment under paragraph
leaves room for interpretation; A and B of Section 47
6. Writ of execution is improvidently issued;
7. Writ of execution is defective in A:
substance; In Rem (Par. a) In Personam (Par. b)
8. Writ of execution is issued against the The decision is The judgment or final order
wrong party; conclusive upon the title is conclusive between
9. Judgment debtor has been paid or of the thing, the will or parties and their
otherwise satisfied; and administration or the successors-in-interest,
10. Writ of execution was issued without condition, status or litigating for the same thing
relationship of the and under the same title
authority.
person. and in the same capacity.
Note: In the above exceptions, remedy is certiorari
(Rule 65) i.e. land registration
i.e. actionreinvindicatoria
cases
Q: When may execution of final and executory
judgment be enjoined? Note: In both instances, the judgment may be repelled
by evidence of want of jurisdiction, notice, collusion,
A: fraud or clear mistake of law or fact. (par. 4, Sec. 48)
1. Upon fling of a petition for relief from
judgment; Q: What are the requisites of res judicata?
2. Attack against a judgment which is void
for lack of jurisdiction, or obtained A:
through fraud; 1. Former judgment or order must be final
3. On equitable grounds; and and executory;
4. In cases falling under the 10 exceptions 2. Court has jurisdiction over subject matter
above. and parties;
3. Former judgment or order was on merits;
Note: Judgment novated by a subsequent agreement and
cannot be executed (e.g. agreement entered into by 4. Identity of parties, subject matter, and
the parties other than terms of payment). cause of action between first and second
action. (TEST: determine identity if cause
Note: judgment for support is not final in a sense that of action)
it cannot be modified. Support depends not only on
the varying conditions affecting the ability of the 10. ENFORCEMENT AND EFFECT OF FOREIGN
oblgor to pay, but also upon the ever-changing needs JUDGMENTS OR FINAL ORDERS
of the beneficiary himself.
Q: What is the effect of a foreign order?
Q: Can final and executory judgments be
modified? A:
1. Against a specific thing – conclusive upon
A: title to the thing.
GR: Final and executor judgments cannot be 2. Against a person – presumptive evidence
amended or modified. Any amendment which of a right as between the parties and their
substantially affects a final and executor judgment successors in interest by a subsequent
is null and void for lack of jurisdiction. title.
Note: In both instances, the judgment may be repelled
XPN: Judgment may be modified as to: by evidence of want of jurisdiction, notice, collusion,
1. Clerical errors or mistakes - errors not as a fraud, or clear mistake of law or fact.
result of exercise of judicial functions
2. To clarify ambiguity; or Q: How is a foreign judgment enforced?
3. To enter nunc pro tunc orders – to make a
present record of an order which the A: By filing an action based on said judgment;
court rendered at a previous terms but, foreign judgment is presumed to be valid and
by inadvertence has not been entered. binding.
R. PROVISIONAL REMEDIES
A:
Preliminary
Preliminary Injunction Receivership (Rule Replevin (Rule Support Pendente
Attachment (Rule
(Rule 58) 59) 60) Lite (Rule 61)
57)
Subject Matter
Personal property
Personal and real Personal and real Money or other forms
Particular act(s) capable of
property property of support
manual delivery
Jurisdiction (Court which can grant it)
GR: Family Court
XPN: In criminal
actions, as long as the
civil aspect is tried
SC, CA, RTC, Family
SC, CA, RTC, Family RTC, Family Court, together with it , the
Court, SC, CA, RTC, Family
Court, Metropolitan, Metropolitan, RTC or MTC having
Metropolitan, Court, Metropolitan,
Municipal and Municipal, and jurisdiction may also
Municipal and Municipal and Municipal
Municipal Circuit Trial Municipal Circuit issue this remedy.(e.g
Municipal Circuit Circuit Trial Courts
Courts Trial Courts Art. 345 (3) RPC, in
Trial Courts
crimes against
chastity, “In every
case to support the
offspring..”)
Who may grant it
Court where action is
pending, the CA or
Only the Court where the SC, or a member
Courts where the action is pending; thereof, even if action Court of origin and
action is pending, Lower court, CA or SC is pending in the Only the court appellate court.
the CA or the SC provided action is lower court. where action is (Ramos v. CA, GR No.
(Sec. 2) pending in the same Appellate court may pending. L-31897, June 30,
court which issues the allow application for 1972)
injunction (Sec. 2) receivership to be
decided by the court
of origin (Sec. 1)
When available
At any stage of the At the
At the
At any stage of the At any stage of the proceeding and even commencement of
commencement
action but before action but before after finality of the action or at any
of the action but
entry of final judgment or final order judgment; anytime time prior to the
before answer is
judgment (Sec. 1) (Sec. 1) prior to satisfaction of judgment or final
filed (Sec. 1)
judgment order (Sec. 1)
How applied for
File verified application File verified
and applicant’s bond; if application and
application is included in applicant’s bond;
the initiatory pleading, application may also
File affidavits and File affidavits and File verified
the adverse party should be included in
applicant’s bond applicant’s bond application; bond not
be served with summons initiatory pleading in
(Sec. 3) (Sec. 2) required (Sec. 1)
together with a copy of actions for
the initiatory pleading and foreclosure of
the applicant’s affidavit mortgage (Secs. 1 and
and bond (Sec.4) 2)
Purpose(s)
1. To seize the To require a party or a To place the To recover To compel adverse
property of the court, agency or a property subject of possession of party to provide
adverse party in person to refrain from an action or personal support while the
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VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
advance for the doing a particular act proceeding under property. (1999 action is pending in
satisfaction of or to require the the control of a Bar Question) court.
judgment that may performance of a third party for its
be recovered in particular act preservation and
cases falling under administration litis
Sec.1, Rule 57. To prevent future pendentia and to
2. To enable the court injury and maintain protect the rights of
to acquire the status quo. all the parties under
jurisdiction over the (Kencht v. CA, G.R. No. the direction of the
action by the actual 97962, Nov. 17, 1993) court.
or constructive
seizure of the
property in those
instances where
personal service of
summons on the
creditor cannot be
effected. (Quasha v.
Juan,G.R.No.L54158,
Nov. 19, 1982)
Ground(s)
1. GR: In an action for 1. When the
the recovery of a applicant has an
specified amount or 1. That the applicant is interest in the
damages. entitled to the relief property or fund
XPN: demanded which subject of the
a. moral and consists in proceeding and
exemplary restraining the such property is in
b. against a party commission or danger of being
who is about to continuance of the lost, removed or
depart from the act complained of, materially injured
Philippines with or in requiring the unless a receiver
intent to defraud performance of an is appointed;
Applicant is:
his creditors; act for a limited 2. In foreclosure of
1. The owner
2. In an action for money period or mortgage, when
of the
or property embezzled perpetually the property is in
property
or fraudulently 2. Commission, danger of being When equity and
claimed; or
misapplied or continuance or non- wasted or justice require,
converted to his own performance of the dissipated or having due regard to
2. Entitled to
use by a public officer, act during the materially injured the probable
the
or by any other person litigation would and that its value outcome of the case
possession
in a fiduciary capacity, probably work is probably and such other
thereof but
or for a willful injustice to the insufficient to circumstances as
the
violation of duty; applicant; or discharge the may suggest the
property is
3. In an action to recover 3. Party, court, agency mortgage debt or reasonability of
wrongfully
the possession of or a person is doing, that it has been granting support
detained by
property unjustly or threatening, or is agreed upon by pendente lite
the adverse
fraudulently taken, attempting to do, or the parties;
party (Sec.
detained or is procuring or 3. After judgment, to
2)
converted, when the suffering to be preserve the
property has been done, some act property during
concealed, removed probably in the pendency of
or disposed of to violation of the an appeal or to
prevent its being rights of the dispose of it
found or taken by the applicant respecting according to the
applicant or an the subject of the judgment or to aid
authorized person; action and tending execution when
4. In an action against a to render the execution has
party who has been judgment been returned
guilty of fraud in ineffectual (Sec. 3) unsatisfied of the
contracting the debt judgment obligor
or incurring the refuses to apply
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VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the
court or to the value of the property if with respect to a particular property to secure the payment of
any judgment that the adverse party may recover in the action.
Counter Bond
Filing of counter-bond
made only upon showing
that the issuance or
continuance thereof
would cause irreparable
Amount of Amount of counter-
Cash deposit may be damage to the party or
counter-bond to bond should be
made in lieu of the person enjoined while the Not applicable.
be fixed by the double the value of
counter-bond (Sec. 12) applicant can be fully
court (Sec. 3) the property (Sec. 5)
compensated for such
damages as he may suffer;
counter-bond alone will
not suffice to discharge
the injunction (Sec. 6)
Other Grounds For Discharge
1. Improper or irregular
issuance or
enforcement or 1. Plaintiff’s bond is
1. Appointment
insufficiency of bond. found to be
1. Insufficiency of the was obtained
(Sec. 13) insufficient or
application (Sec. 9) without
2. Judgment rendered defective and is
sufficient cause.
against attaching not replaced with
2. Other grounds (e.g.
creditor (Sec. 19) proper bond; or
applicant’s bond is 2. Bond posted by
3. Property attached is
insufficient/ defective), the applicant /
exempt from execution 2. Property is not
upon affidavits of the receiver is
(Sec. 2 & 5) delivered to the
party or person insufficient (Sec.
4. Attachment is plaintiff for any
enjoined 3).
excessive, but the reason (Sec. 6).
discharge shall be
limited to the excess
(Sec. 13).
Damages in Case Applicant is Not Entitled Thereto or For Irregularity of the Procurement Of the Provisional Remedy
When the judgment or
final order finds that the
person who has been
Requisites: providing support
1. Owner of the property attached must file before trial or before perfection of appeal or pendente lite is not
before judgment becomes executory an application for damages; liable therefor, the court
2. Party who availed of provisional remedy and his surety must be notified, showing right shall order the recipient
to damages and amount thereof; and to return the amounts
3. Such damages may be awarded only after proper hearing and shall be included in the already received with
judgment of the main case. interest from the date of
actual payment, without
If the judgment of the appellate court is favorable to the party against whom provisional prejudice to the right of
remedy was effected: the recipient to obtain
Application must be filed with the appellate court before the judgment of the reimbursement in a
appellate court becomes executory. Appellate court may allow application to be heard separate action from
and decided by the trial court. the person legally
obliged to give support.
If bond or deposit given by the party availing of the provisional remedy be insufficient or fail
to satisfy the award: If the recipient fails to
Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. reimburse the amount,
9, Rule 59; Sec. 10, Rule 60) the person who
. provided the same may
Note: Any award of damages for the wrongful issuance of a provisional remedy should be seek reimbursement in a
recovered in the same case. The recovery of damages cannot be had in a separate action. separate action from
the person legally
obliged to give such
support (Sec. 7)
A: Provisional remedies are resorted to: XPN: in criminal actions, as long as the civil aspect
1. To preserve or protect their rights or is tried together with it, the RTC or MTC having
interests while the main action is jurisdiction may also issue the remedy of Support
pending; pendent Lite. (e.g. Art 345 (3) RPC, in crimes against
2. To secure the judgment; chastity, “in every case to support the offspring…”)
3. To preserve the status quo;
4. To preserve the subject matter of the Q: When are these provisional remedies available?
action.
A:
1. Attachment, injunction and support
Q: What are the Provisional Remedies under the pendent lite – may be applied for before
Rules of Court? final judgment
2. Replivin – may be applied before the
A: answer
1. Preliminary Attachment (Rule 57) 3. Receivership – may be applied for at any
2. Preliminary Injunction (Rule 58) stage of the action and even after final
3. Receivership (Rule 59) judgment.
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61) 3. PRELIMINARY ATTACHMENT
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VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
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VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
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VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What are the distinctions among a preliminary injunction, prohibition and status quo order?
A:
Injunction Prohibition Status Quo Order
Directed against a court, Directed against the adverse party and is issued
Directed against a party in an
tribunal or person exercising by the court motu propio(Regalado, Remedial
action
judicial powers Law Compendium, Vol. I, p. 721, 2005 ed.)
Cease and Desist Order intended to maintain
Issued on the ground that the the last, actual, peaceable and uncontested
Does not involve the jurisdiction court against whom the writ is state of things preceding the controversy
of the court sought acted without or in without requiring the doing or undoing of an
excess of jurisdiction act (Regalado, Remedial Law Compendium, Vol.
I, p. 722, 2005 ed.)
May be the main action (final Special Civil Action / Main
injunction) or provisional remedy action
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VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
d. WHEN MAY WRIT BE ISSUED Q: In what actions will a preliminary injunction not
lie?
Q: When may a writ for preliminary injunction be
issued? A:
1. Against Department of Public Works and
A: Highways to stop government
1. In petitions for relief from judgment infrastructure projects (Secs. 3 & 4,
entered through FAME; RA8975)
2. In petitions for certiorari, prohibition, and XPNs:
mandamus; a. Extreme urgency
3. In actions for annulment of judgments b. Matter involves a constitutional
obtained through fraud; issue
4. In actions for annulment of judgment c. Grave injustice and irreparable
which are not patent nullities ( want of injury will arise
jurisdiction, lack of due process of law) d. Supreme Court may issue the
(BancoEspanol v. Palanca, 37 Phil. 921); writ of preliminary injunction
5. To restrain continued breach of valid Note: Injunctive writs cannot be issued
negative obligation; against any person or entity involved in
6. To enjoin repeated trespass on land; the execution, implementation and
7. To restrain city from proceeding with operation of government
abatement of nuisance per accidens infrastructure projects (P.D. 1818).
before it has been judicially declared as 2. Act/s perpetrated outside the inferior
such; courts’ territorial jurisdiction
8. To restrain voting of disputed shares of 3. Against judgments of coordinate courts
stocks; and quasi judicial bodies of equal rank
9. To restrain sheriff from selling property 4. Issuance will effectively dispose of the
on execution not belonging to judgment main case without trial and/or due
debtor; process (Boncodin v. Nat’l Power
10. To restrain criminal prosecutions as an Corporation Employees Consolidated
exception, in the following cases: Union, G.R. No. 162716, September 27,
a. To afford adequate protection 2006)
to constitutional rights of 5. Labor disputes
accused; 6. In issuance of licenses, concessions as to
b. When there is a prejudicial disposition, exploitation, utilization,
question which is sub judice; exploration and/or development of
c. Prosecution under an invalid natural resources (Sec. 1, PD605)
law; 7. Implementation of Comprehensive
d. Double jeopardy is clearly Agrarian Reform Program, collection of
apparent; taxes, criminal prosecutions
e. Court wthout jurisdiction over 8. Mandatory foreclosure of a mortgage by
the offense; a government financial institution (Sec. 2,
f. Case of persecution rather than P.D. 385)
prosection; XPN: After hearing, it is established
g. Charges manifestly false and that 20% of outstanding arrearages is
motivated by lust for paid after the filing of the
vengeance; foreclosure proceedings
h. There is clearly no prima facie 9. Act/s sought to be enjoined already
case against accused and consummated
motion to quash on said ground XPN: Preliminary mandatory
is denied; and injunction may be availed of such
i. Preliminary injunction issued by that the dispossessor in forcible
SC to prevent threatened entry can be compelled to restore
unlawful arrest of petitioners. possession to the original possessor
and an electric company can be
compelled to provisionally reconnect
the service it had disconnected.
(Regalado, Remedial Law
Compendium, Vol. I, p. 718, 2005 ed.)
124
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
10. To transfer the property in litigation from 1. Insufficiency of application for injunction
the possession of one party to another or restraining order
where the legal title is in dispute and the 2. Issuance or continuance of injunction or
party having possession asserts restraining order causes irreparable injury
ownership thereto (Almeida v. CA and Sy, while applicant may be fully compensated
G.R. No. 159124, January 17, 2005) for damages by bond
XPN: 3. Extent of injunction or restraining order is
a. Forcible entry and unlawful too great
detainer cases – preliminary Effect: modification
mandatory injunction may be 4. Insufficiency or defective bond (Sec. 7,
issued (Sec. 15, Rule 70) Rule 58).
11. Generally, injunction will not be granted Note: Filing of verified motion and bond as well as
to take property out of the possession of hearing is required
one party and place it in another whose
title not clearly established; g. DURATION OF TRO
12. When action for damages would
adequately compensate injuries caused Q: What is the duration of a TRO?
(Golding v. Balatbat, 36 Phil.941);
13. To prevent directors from discharging A:
their offices and restoring former 1. 20 days from notice : if great or
directors; irreparable injury would result to the
14. To restrain criminal prosecution where applicant before the matter can be heard
the Ombudsman had authorized the on notice.
Special prosecutor to conduct a 2. 72 hours from issuance (issued ex parte) :
preliminary investigation or to file an if the matter is of extreme urgency and
injunction. the applicant will suffer grave injustice
and irreparable injury.
Note: Only the SC may issue injunction against the
government, officials or any person or entity whether Note: after conducting a summary hearing within the
public or private acting under the government 72 hours period until the application for Preliminary
direction, to restrain, prohibit, or compel acts pursuant injunction can be heard, an extension of the 72-hour
to the implementation and completion of TRo may be asked. The total period of effectivity of the
infrastructure projects. (Sec 3, RA 8975) TRO shall not exceed 20 days including the 72 hours.
While the efficacy of the TRO is ordinarily non-
e. GROUNDS FOR ISSUANCE extendible, and the trial courts have no discretion to
extend it considering the mandatory tenor of Rule 58,
Q: What are the grounds for the issuance of a there is no reason to prevent a court from extending
preliminary injunction? the 20-day period when it is the parties themselves
who ask for such extension or for the maintenance of
A: (Sec. 3, Rule 58) the status quo. (Federation of Land Reform Farmers of
1. Clear legal right of the applicant the Philippines v. CA, 246 SCRA 175 (1995)).
2. The commission, continuance or non-
Note: a TRO issued by the trial court or CA expires
performance of the act or acts
automatically upon the lapse of the 20 day period and
complained of will cause injustice to the 60 day period respectively. There is no need for any
applicant judicial declaration of dissolution (Paras v. Roura, 163
3. Person against whom injunction is sought SCRA 1 (1988))
is doing, threatening, attempting,
procuring or suffering to do some act or Q: What happens to the TRO if before the
acts in violation of applicant’s rights expiration of the 20-day period, the application for
tending to render the judgment preliminary injunction is denied?
ineffectual.
A: It will be automatically vacated. (Bacolod City
f. GROUNDS FOR OBJECTION, DISOLUTION OF Water District v. Labayan, G.R. No. 157494,
INJUNCTION OR RESTRAINING ORDER December 10, 2004)
125
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
126
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Note: A clerk of court cannot be appointed as a Q: What are the requisites in the application for
receiver (Abrigo v. Kayanan, G.R. No. L-28601, March receivership?
28, 1983)
A:
Q: Which court may appoint a receiver? 1. Party applying for receivership has an
existing interest in the property in
A: (Sec. 1, Rule 59) litigation
1. Court where action is pending 2. Verified application filed at any stage of
2. Court of Appeals or Supreme Court or a the proceedings even after final
member thereof judgment, prior to the satisfaction of
Note: During pendency of appeal, appellate court judgment (Sec. 1, Rule 59)
may allow receiver to be appointed by court of 3. Posting of bond (Sec. 2, Rule 59)
origin 4. Grounds stated in Sec. 1, Rule 59
5. Receiver must be sworn to perform his
Q: What is the effect of a contract executed by a duties faithfully
receiver without court approval?
c. REQUIREMENTS BEFORE ISSUANCE OF AN
A: Such contract will constitute his personal ORDER
undertakings and obligations (Pacific Merchandising
Corp. v. Consolacion Insurance & Surety Co., G.R. Q: What is the requirement before an order of
No. L-30204, October 29, 1976) appointment may be issued?
Note: Receivership cannot be effected on a property in
A: The applicant must file a bond executed in favor
custodialegis (LizarragaHnos. V. Abada, 40phil124).
of the party against whom the application is
But a receiver can be appointed where a property in
custody of an administrator or executor is in danger of
presented, in an amount fixed by court, to pay
imminent loss or injury. (Dolor v. Sindian, G.R. No. L- damages in case receivership is procured without
27631, April 30, 1971) sufficient cause. (Sec. 2, Rule 59)
a. CASES WHEN A RECEIVER MAY BE APPOINTED Note: The court may require an additional bond for
further security. (Sec. 2, Rule 59)
Q: In what cases may a receiver be appointed?
d. POWERS OF A RECEIVER
A: (Sec. 1, Rule 59)
1. Applicant has an interest in the property Q: What are the powers of a receiver?
or fund subject of the action is in danger
of being lost, removed, or materially A: (Sec. 6, Rule 59)
injured 1. Power to bring and defend actions in his
2. Mortgaged property is in danger of being own name
Note: No action may be filed by or against a
dissipated or materially injured and that
receiver without leave of court which
its value is probably insufficient to
appointed him
discharge the mortgage debt or
2. Take and keep possession of the property
3. Stipulation in the contract of mortgage
in controversy
4. To preserve the property after judgment
3. Receive rents
during the pendency of the appeal or to
4. Collect debts due to himself as receiver or
dispose it according to judgment
to the fund, property, estate, person or
5. To aid execution when execution has
corporation of which he is a receiver
been returned unsatisfied
5. Compound for and compromise debts
6. Judgment debtor refuses to apply his
collected
property in satisfaction of the judgment
6. Make Transfers
or to carry on the judgment
7. Pay outstanding debts
7. Appointment of receiver is most
8. Divide money and other property that
convenient and feasible means of
shall remain among the persons legally
preserving, administering or disposing of
entitled to receive the same
the property in litigation
9. Invest funds in his hands only by order of
the court upon written consent of all the
parties to action;
127
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
10. Other acts which the court may authorize in specie, the recovery of damages being only
incidental (Am. Jur. 6). Replevin may be a main
Note: Funds in the hands of a receiver may be invested action or a provisional remedy. As a principal action
only by court order and written consent of all parties its ultimate goal is to recover personal property
to an action. capable of manual delivery wrongfully detained by
a person. The main action for replevin is primarily
e. TWO KINDS OF BONDS possessory in nature and generally determines
nothing more than the right of possession.
Q: What is the 2-bond requirement in
receivership?
Note: A writ of replevin may be served anywhere in
the Philippines (Regalado, Remedial Law Compendium,
A: Vol. I, p. 749, 2005 ed.)
1. Bond posted by the applicant (Sec. 2, Rule
59) Q: Distinguish replevin from preliminary
2. Bond posted by receiver appointed (Sec. attachment.
4, Rule 59)
A:
f. TERMIINATION OF RECEIVERSHIP Replevin Preliminary Attachment
Recovery of possession of Available even if
Q: What are the grounds for the discharge of personal property is the recovery of personal
receiver? principal relief and property is only an
damages are incidental incidental relief
A: This is available before Available from
1. Posting of counterbond by adverse defendant files an answer commencement but
party (Sec. 3, Rule 59) before entry of
Note: Where counterbond is judgment
insufficient or defective, receiver may Available only where May be resorted to even
be re-appointed (Sec. 5, Rule 59) defendant is in actual or if personal property is in
2. Appointment of receiver was made constructive possession of the custody of a third
without sufficient cause (Sec. 3, Rule personal property involved person
59) Extends only to personal Extends to all kinds of
3. Insufficient or defective applicant’s property capable of property whether real,
bond (Sec. 5, Rule 59) manual delivery personal or incorporeal
4. Insufficient or defective receiver’s Used to recover personal Recover property being
bond (Sec. 5, Rule 59) property even if not being concealed, removed or
5. Receiver no longer necessary (Sec. 8, concealed, removed or disposed
Rule 59) disposed
Cannot be availed of when Can be resorted to even
property is in if property is in
Q: How is receivership terminated?
custodialegis(under custodialegis
attachment) or seized
A: (Sec. 8, Rule 59)
under search warrant
1. By court motupropio or on motion by
Property of GOCCs cannot Properties of GOCCs
either party be reached may be reached if
2. Based on the following grounds: utilized in its proprietary
a. Necessity for receiver no longer function.
exists Sheriff takes possession of Sheriff does not take
b. Receiver asserts ownership over the the property subject of the possession of the
property (Martinez v. Graño, G.R. replevin and hold the property attached
No. L-25437, August 14, 1926) same for a period of 5 except contructively
3. After due notice and hearing to all days after which said placing it under custodia
interested party property will be delivered legis.
to the party who obtained
6. REPLEVIN the writ.
Bond to be posted is Bond amount is fixed by
Q: What is replevin? double the value of the court and does not
property sought to be exceed the claim or
recovered value of the property to
A: Replevin is a proceeding by which the owner or be attached
one who has a general or special property in the
thing taken or detained seeks to recover possession
128
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Note: These remedies cannot be availed of in the same 1. Applicant is the owner of the property
case. claimed, particular description of such,
entitlement to possession
Q: To be able to secure financial accommodations 2. Property is wrongfully detained, alleging
from Makati Leasing, Wearever discounted and cause of detention according to
assigned several receivables under a Receivable applicant’s knowledge, information and
Purchase Agreement. To secure the collection of belief
the receivables assigned, private respondent 3. Property has not been taken for tax
executed a chattel mortgage over certain assessment or fine, or seized by writ of
machineries which were bolted to the ground. execution, preliminary attachment, in
Upon default Makati Leasing move for custodialegis, if so seized, that it is
extrajudicial foreclosure of the mortgage exempt or should be released from
properties and filed an action for replevin which custody
was granted by the court. Can the machineries 4. Actual market value of the property
bolted to the ground be a subject of replevin?
c. AFFIDAVIT AND BOND; REDELIVERY BOND
A: Machineries bolted to the ground are real
properties that may not be the subject to replevin Q: What are the contents of the affidavit?
(Makati Leasing and Finance Corporation v.
Wearever Textile Mills Inc. GR No L- 58469, May 16, A: Affidavit, alleging:
1983). 1. That the applicant is the owner of property
claimed, describing it or entitled to its possession;
a. WHEN MAY WRIT BE ISSUED 2. That the property is wrongfully detained by the
adverse party, alleging cause of its detention;
Q: When may a writ of replevin be issued? 3. That the property has not been distrained or
taken for tax assessment or fine or under writ of
A: This may only be obtained when the defendant execution/attachment or placed under
in the action has not yet filed his answer to the custodialegis or if seized, that it is exempt or should
complaint where it is necessary to: be released; and
1. Protect plaintiff’s right of possession to 4. The actual market value of the property.
property
2. Prevent defendant from destroying, Q: What is redelivery bond?
damaging or disposing of the property
Q: Can a writ of replevin be issued anywhere in the
Philippines? A: Bond, which must be double the value of
property, to answer for the return of property if
A: Under the Resolution of the Supreme Court adjudged and pay for such sum as he may recover
enbanc dated January 11, 1983, providing for the from the applicant (Sec. 2).
interim rules and guidelines relative to the
implementation of BP 129, a writ of replevin like Q: When is it required?
the one issued in the present case may be served
anywhere in the Philippines (Fernandez v. A: It is required that the redelivery bond be filed
International Corporate Bank now Union Bank of within the period of 5 days after the taking of the
the Philippines, GR No 131283, October 7, 1999). property. The rule is mandatory (Yang vs. Valdez,
177 SCRA 141).
b. REQUISITES
d. SHERIFF’S DUTY IN THE IMPLEMENTATION OF
Q: What are the requisites in applying for THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD
replevin? PARTY
129
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
3. If property is concealed, make a public rules that are applicable only to specific special civil
demand for the delivery of the property actions (sec. 3) The fact that an action is subject to
4. If property is not delivered, sheriff must special rules other than those applicable to ordinary
cause the building or enclosure to be civil actions is what makes a civil action special.
broken and take property and keep such
in his custody 2. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL
5. Deliver the property to the party entitled ACTIONS
to such upon receiving his fees.
Q: Distinguish ordinary civil action from special
Q: When may a property subject of replevin be civil action.
returned?
A:
A: Ordinary Civil Action Special Civil Action
1. Filing of a redelivery bond double the Must be based on a Cause of action not
value of the property cause of action – act necessarily needed
2. Plaintiff’s bond is insufficient or defective or omission in Examples:
violation of the rights 1. Declaratory relief –
and is not replaced with a proper bond
of another action is brought before
3. Property is not delivered to the plaintiff
there is any breach
for any reason
2. Interpleader – plaintiff
files a complaint even if
Q: What are the remedies of a third person whose he has not sustained
property is taken by virtue of a replevin? actual transgression of
his rights
A: Venue is determined Not necessarily true as in quo
1. Third party shall file and serve affidavit either by the warranto, the venue is where
upon sheriff and applicant stating his residences of the the Supreme Court or Court
entitlement to possession parties where the of Appeals if the petition is
2. Sheriff shall return the property to third action is personal or commenced in any of these
person unless applicant files a bond (same by the location of the courts without taking into
amount as the value of the property) property where the consideration the residences
approved by court to indemnify the third action is real of the parties
person May be filed in Some actions may be filed
3. Claim for damages upon said bond must Municipal Trial Court only in the Municipal Trial
be filed within 120days from date of filing or the Regional Trial Court, some cannot be
of the bond Court depending commenced therein
upon the
jurisdictional amount
Q: Is the Rule on Prior or Contemporaneous
or nature of the
Service of Summons observed in Replevin? action
May be commenced May be commenced by the
A: Yes. Although the writ of replevin may be issued only by the filing of filing of a complaint or
ex-parte, it cannot be implemented or enforced if complaint petition
not preceded or accompanied by a service of
summons. Q: What are the special civil actions under the
Rules of Court?
S. SPECIAL CIVIL ACTIONS
A:
1. NATURE OF SPECIAL CIVIL ACTIONS 1. Interpleader (Rule 62)
2. Declaratory relief and similar remedies
Q: What are Special Civil Actions? (Rule 63)
3. Review of judgments and final orders of
A: Since a civil action in general is one by which a the COMELEC and the Commission on
party sues another for the enforcement or Audit (Rule 64)
protection of a right, or the prevention or redress of 4. Certiorari, prohibition and mandamus
a wrong (Sec. 3 [a], Rule 1, Rules of Court), a special (Rule 65)
civil action is generally brought or filed for the same 5. Quo warranto(Rule 66)
purpose. 6. Expropriation (Rule 67)
7. Foreclosure of real estate mortgage(Rule
Note: although both types of actions are governed by 68)
the rules for ordinary civil actions, there are certain
130
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
131
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
132
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
A: Within a reasonable time after a dispute has Q: May an interpleader be availed of the resolve
arisen without waiting to be sued by claimants and breach of undertaking?
before such is barred from laches. (Feria, Civil
Procedure Annotated, Vol. II, p. 425, 2001 ed.) A: No. Such issue should be resolved in an ordinary
civil action for specific performance or other relief
Q: Which court has jurisdiction over an (Beltran v. PHHC, G.R. No. L-25138, August 28,
interpleader? 1969)
A: Inferior courts have jurisdiction so long as the 5. DECLARATORY RELIEF AND SIMILAR REMEDIES
amount involved is within their jurisdiction
Q: What is a declaratory relief?
Q: Should there be service of summons in
interpleader? A: A special civil action brought by a person
interested under a deed, will, contract or other
A: Summons and copies of the complaint and order written instrument, or whose rights are affected by
shall be served upon conflicting claimants. (Sec. 3, a statute, executive order or regulation, ordinance
Rule 62) or any other governmental regulation, before
breach or violation thereof, asking the court to
Note: Claimants shall have 15days to file an answer determine any question of construction or validity
and such answer must be served upon the plaintiff and arising, and for a declaration of his rights or duties
co-defendants. (Sec. 5, Rule 62). thereunder.
Q: What is the effect of failure of a claimant to file Q: What is the purpose of an action for declaratory
an Answer? relief?
Q: What are the other allowed pleadings in an a. WHO MAY FILE THE ACTION
interpleader?
Q: Who may file an action for declaratory relief?
A: (Sec. 5, Rule 62)
1. Counterclaim A: Any person:
133
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
1. Interested under a deed, will, A: Court may motupropio or upon motion refuse
contract or other written instrument based on the following grounds:
2. Whose rights are affected by a 1. A decision will not terminate the
statute, executive order or uncertainty or controversy which gave
regulation, ordinance or any other rise to the action
governmental regulation 2. Declaration or construction is not
necessary and proper under the
b. REQUISITES OF ACTION FOR DECLARATORY circumstances
RELIEF
Note: Discretion to refuse does not extend to actions
Q: What are the requisites of an action for for reformation of an instrument quiet title or remove
declaratory relief? clouds or to consolidated ownership in a pacto de retro
sale. (Regalado, Remedial Law Compendium, Vol. I, p.
A: 769, 2005 ed.)
1. Filing of Petition before there is a breach
or violation Q: Can the court exercise discretion in application
2. Subject matter is a deed, will, contract, for declaratory relief?
written instrument, statute, executive
order, regulation or ordinance A:
1. In declaratory relief, the court is given
Note: The enumeration of the subject the discretion to act or not to act on the
matter is exclusive, hence, an action not petition. It may therefore choose not to
based on any of the enumerated subject construe the instrument sought to be
matters cannot be the proper subject of construed or could refrain from
declaratory relief. (Riano, Civil Procedure: A declaring the rights of the petitioner
Restatement for the Bar, p. 613, 2009 ed.) under the deed or the law. A refusal of
3. There is justiciable controversy the court to declare rights or construe
4. Issue is ripe for judicial determination an instrument is actually the functional
(Republic v. Orbecido III, G.R. No. 154380, equivalent of the dismissal of the
October 5, 2005), i.e. litigation is petition.
imminent and inevitable (Tolentino v. 2. On the other hand, the court does not
Board of Accountancy, G.R. No. L-3062, have the discretion to refuse to act with
September 28, 1951) respect to actions described as similar
5. Adequate relief is not available through remedies. Thus, in an action for
other means or other forms of action or reformation of an instrument, to quiet
proceedings (Ollada v. Central Bank, G.R. or to consolidate ownership, the court
No. L-11357, May 31, 1962) cannot refuse to render a judgment (Sec.
6. The controversy is between persons 5, Rule 63).
whose interests are adverse;
d. CONVERSION TO ORDINARY ACTION
Q: To whom shall notices be given?
Q: When may an action for declaratory relief be
A: converted into an ordinary action?
1. Solicitor general if subject matter
involves: A: After filing of petition for declaratory relief but
a. Validity of statute, executive order, before the final termination of the case or rendition
regulation or governmental of judgment, a breach or violation of an instrument,
regulation statute, executive order, regulation or ordinance
b. Constitutionality of local government takes place. (Sec. 6, Rule 63)
ordinance
2. Prosecutor or attorney of the local Q: Distinguish Ordinary Civil Action from Special
government unit if subject matter Civil Action for Declaratory Relief.
involves validity of local government unit
A:
c. WHEN COURT MAY REFUSE TO MAKE JUDICIAL 1. Ordinary civil action – plaintiff alleges that his
DECLARATION right has been violated by the defendant; judgment
rendered is coercive in character; a writ of
Q: When may a court refuse to make a judicial execution may be executed against the defeated
declaration? party.
134
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: What are the instances wherein a declaratory Q: When may an instrument be reformed?
relief is unavailable?
A: The instrument may be reformed if it does not
A: express the true intention of the parties because of
1. To obtain judicial declaration of lack of skill of the person drafting the instrument
citizenship; (Art. 1363, CC). If the parties agree upon the
2. To establish illegitimate filiation and mortgage or pledge of property, but the instrument
determine hereditary rights; states that the property is sold absolutely or with a
3. The subject of the action is a court right of repurchase, reformation of the instrument
decision; is proper (Art. 1365, CC).
4. Actions to resolve political questions;
5. Those determinative of the issues rather Q: What is the remedy if the consent of a party to
than a construction of definite status, a contract has been procured by fraud, inequitable
rights and relations; conduct, or accident?
6. Terms of assailed ordinances are not
ambiguous or of doubtful meaning; A: Where the consent of a party to a contract has
7. In a petition to seek relief from a moot been procured by fraud, inequitable conduct or
and academic question; accident, and an instrument was executed by the
8. Where the contract or statute on which parties in accordance with the contract, what is
action is based has been breached; defective is the contract itself because of vitiation
9. When the petition is based on the of consent. The remedy is not to bring an action for
happening of a contingent event; reformation of the instrument but to file an action
10. When the petitioner is not the real party for annulment of the contract (Art. 1359, CC).
in interest; and
11. Where the administrative remedies have Note: Reformation of the instrument cannot be
not yet been exhausted. brought to reform any of the following:
1. Simple donation inter vivos wherein no condition
e. PROCEEDINGS CONSIDERED AS SIMILAR is imposed;
REMEDIES 2. Wills; or
3. When the agreement is void (Art. 1666, CC).
Q: What are the similar reliefs referred to under
Rule 63? (2) CONSOLIDATION OF OWNERSHIP
A:
Q: What is the purpose of an action brought to
1. Reformation of an instrument
consolidate ownership?
2. Quiet title to real property or to remove
clouds
3. Consolidation of ownership (Art. 1607, A: The action brought to consolidate ownership is
Civil Code) not for the purpose of consolidating the ownership
of the property in the person of the vendee or
(1) REFORMATION OF AN INSTRUMENT buyer but for the registration of the property. The
lapse of the redemption period without the seller a
Q: What is meant by reformation of instrument? retro exercising his right of redemption,
135
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
consolidates ownership or title upon the person of A: The plaintiff need not be in possession of the real
the vendee by operation of law. Art. 1607 requires property before he may bring the action as long as
the filing of the petition to consolidate ownership he can show that he has a legal or an equitable title
because the law precludes the registration of the to the property which is the subject matter of the
consolidated title without judicial order (Cruz vs. action (Art. 477, Civil Code).
Leis, 327 SCRA 570).
6. REVIEW OF JUDGMENT AND FINAL ORDERS OR
Note: The concept of consolidation of ownership RESOLUTIONS OF THE COMELEC AND COA
under Art. 1607, Civil Code, has its origin in the
substantive provisions of the law on sales. Under the Q: What is the constitutional basis for the
law, a contract of sale may be extinguished either by application of Rule 65 under Rule 64?
legal redemption (Art. 1619) or conventional
redemption (Art. 1601). Legal redemption (retracto
legal) is a statutory mandated redemption of a A: Sec. 7, Art. IX-A of the Constitution reads, “unless
property previously sold. For instance, a co-owner of a otherwise provided by the Constitution or by law,
property may exercise the right of redemption in case any decision, order or ruling of each commission
the shares of all the other co-owners or any of them may be brought to the Supreme Court on certiorari
are sold to a third person (Art. 1620). The owners of by the aggrieved party within 30 days from receipt
adjoining lands shall have the right of redemption of a copy thereof.” The provision was interpreted
when a piece of rural land with a size of one hectare or by the Supreme Court to refer to certiorari under
less is alienated (Art. 1621). Conventional redemption Rule 65 and not appeal by certiorari under Rule 45
(pacto de retro) sale is one that is not mandated by the (Aratuc vs. COMELEC, 88 SCRA 251; Dario vs. Mison,
statute but one which takes place because of the 176 SCRA 84). To implement the above
stipulation of the parties to the sale. The period of constitutional provision, the SC promulgated Rule
redemption may be fixed by the parties in which case 64.
the period cannot exceed ten (10) years from the date
of the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the Q: What is the mode of review for judgments and
date of the contract (Art. 1606). When the redemption final orders of the COMELEC and COA?
is not made within the period agreed upon, in case the
subject matter of the sale is a real property, Art. 1607 A: The petition may be brought by the aggrieved
provides that the consolidation of ownership in the party to the Supreme Court on Certiorari under
vendee shall not be recorded in the Registry of Rule 65, except otherwise provided.
Property without a judicial order, after the vendor has
been duly heard. Note: Rule 65 applies to the mode of review under
Rule 64.Said mode of review is based on Article IX-A of
(3) QUIETING OF TITLE TO REAL PROPERTY the 1987 Constitution providing that the proper mode
of review is certiorari under Rule 65 to be filed before
the Supreme Court.Under R.A. 7902 the Court of
Q: What is an action for quieting title to real Appeals has jurisdiction over all adjudications of the
property? Civil Service Commission.
A: This action is brought to remove a cloud on title Note: The order to comment under Sec. 6, Rule 64 in
to real property or any interest therein. The action case the Supreme Court finds the petition sufficient in
contemplates a situation where the instrument or a form and substance is equivalent to summons in
record is apparently valid or effective but is in truth ordinary civil action.
and in fact invalid, ineffective, voidable or
unenforceable, and may be prejudicial to said title Q: What is the period for filing certiorari as
to real property. This action is then brought to referred to in Rule 64?
remove a cloud on title to real property or any
interest therein. It may also be brought as a A: The petition for certiorari referred to in Rule 64
preventive remedy to prevent a cloud from being shall be filed within 30 days from notice of the
cast upon title to real property or any interest judgment, final order or resolution of the COMELEC
therein (Art. 476, Civil Code). and the COA sought to be reviewed (Sec. 3, Rule
64).
Q: Is it required that the plaintiff be in the Note: While Rule 64 makes reference to the certiorari
possession of the property before an action is under Rule 65, the period for the filing of the petition
brought? for certiorari assailing the judgment of the COMELEC
and COA is shorter than that provided under Rule 65
136
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: When may the court issue an order to aggrieved party may file aggrieved party will have
comment? the petition within the another 60 days within
remaining period, but which to file the petition
A: If the SC finds the petition sufficient, which shall not be less counted from the notice
respondents will be ordered to file a verified than 5 days. of denial.
comment within 10days from notice of such order.
(Sec. 6, Rule 64) b. DISTINCTION IN THE APPLICATION OF RULE 65
TO JUDGMENTS OF THE COMELEC AND COA AND
Q: What are basic requirements for the petition? THE APPLICATION OF RULE 65 TO OTHER
TRIBUNALS, PERSONS AND OFFICERS
A: The following basic requirements must be
complied with: Q: Distinguish the mode of review of judgment,
1. The petition shall be verified and filed in 18 final orders or resolutions of COMELEC and COA
copies; from other tribunals, persons and officers.
2. Accompanied by clearly legible duplicate original
or certified true copy of the judgment, final order or A:
resolution subject thereof, together with certified Review of judgment,
true copies of documents relevant and pertinent to final orders or
Rule 64 for COMELEC
the petition; resolutions of other
and COA
3. The aggrieved party is named as the petitioner tribunals, persons and
officer
and shall join as respondent the commission
Petition is based on Petition is based on
concerned and all the persons interested in
questions of law questions of law
sustaining the judgment, final order or resolution.
It is a mode of appeal
4. The petition shall state the facts with certainty,
but the petition used It is a mode of appeal
present clearly the issues involved, set forth the is Rule 65
grounds and brief arguments relied upon for Involves review of Involves the review of
review; judgments, final the judgment final
5. Petition shall state the specific material dates orders or resolutions orders or resolutions of
showing that it was filed within the period fixed by of COMELEC and COA the CA, Sandiganbayan,
the Rules. CTA, RTC or other courts
6. The petition shall be accompanied by proof of Filed within 30 days Filed within 15 days
service of a copy thereof on the commission from notice of from notice of
involved and on the adverse party, and of the judgment, final order judgment, final order or
timely payment of docket and other lawful fees or resolution sought resolution appealed
(Sec. 5, Rule 64) to be reviewed from
7. Certification against non forum shopping
8. Petition shall pray for a judgment annulling or Does not stay the
modifying the questioned judgment, final order or execution unless SC
resolution. shall direct otherwise Stays the judgment or
upon such terms as it order appealed from
Note: The failure of the petitioner to comply with any may deem just
of the foregoing requirements shall be sufficient
ground for the dismissal of the petition (Sec. 5, Rule The appellant and the
The COMELEC and
64). appellee are the original
COA shall be public
parties to the action,
respondents who are
and the lower court or
a. APPLICATION OF RULE 65 UNDER RULE 64 impleaded in the
quasi-judicial agency is
action
not impleaded
Q: Distinguish Rule 64 from Rule 65.
The filing of MNT or
A: MR, if allowed under
Rule 64 Rule 65 Motion for
the procedural rules of
Directed only to the Directed to any tribunal, reconsideration is not
the Commission, shall
judgments, final orders or board or officers required
interrupt period fixed
resolutions of the exercising judicial or
COMELEC and COA; quasi-judicial functions; The court is in the
Must be filed within 30 Must be filed within 60 The court is in the
exercise of its
days from notice of days from notice of exercise of its appellate
appellate jurisdiction
judgment or resolution judgment or resolution jurisdiction and power
and power of review
If MR is denied, the If MR is denied, the of review
137
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Petition for certiorari Petition for certiorari is b. Certified true copy of material
is to be filed before to be filed only with the records of the case
the SC Court of Appeals 4. Statement of material dates
5. Sworn certification against forum
Q: What are the requisites for a review under Rule shopping
64? 6. Proof of service
A:
1. Filing of verified petition within 30days Q: What are the grounds for the outright dismissal
from notice of the judgment, final orders of the petition?
or resolutions (Sec. 3, Rule 64)
Note: Interlocutory orders must be assailed A: (Sec. 6, Rule 64)
under Rule 65, not Rule 64 1. Petition is not sufficient in form and
2. Payment of docket and other lawful fees substance (Sec. 5, Rule 64)
(Sec. 4, Rule 64) 2. Petition was filed for purpose of delay
3. Issue is unsubstantial
Note: The filing of the petition for certiorari does not
stay the execution of the assailed judgment, final order Q: Are findings of fact reviewable under Rule 64
or resolution of the Commission unless SC directs using Rule 65?
otherwise by the issuance of a temporary restraining
order or preliminary injunction. (Sec. 8, Rule 64)
A: The petition under Rule 64 using Rule 65, cannot
question the findings of fact of the commission
Q: What are the contents of the petition?
involved where such findings are supported by
substantial evidence. Such findings when so
A: (Sec. 5, Rule 64)
supported by the requisite quantum of evidence
1. Verified petition filed in 18copies joining
are final and non- reviewable (Sec 5, Rule 64).
as respondents the Commission
concerned and person/s interested in
Q: What is the effect of filing of a motion for new
sustaining the judgment, final order or
trial or reconsideration if allowed under the
resolution a quo
procedural rules of the commission concerned?
2. Statement of facts, issues, grounds for
review, arguments and relief prayed for
A: It will interrupt the period for filing the petition
3. Attachment of:
and if motion is denied, the petition may be filed
a. Duplicate original or certified true
within the remaining period which shall not be less
copy of assailed judgment, final
than 5days. (Sec. 3, Rule 64)
order or resolution
GENERAL MATTERS
a. DEFINITIONS AND DICTINCTIONS
138
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: When does the court acquire jurisdiction over the law is, what the rights of the parties
the person of the respondent in original actions are, and undertakes to determine these
for certiorari, prohibition and mandamus? questions and adjudicate upon the rights
of the parties.
A: 2. Without jurisdiction – is where the
1. If the action is filed with the RTC – Follow respondent does not have the legal
the rules on ordinary civil actions. power to determine the case.
Jurisdiction is acquired by the service of 3. Excess of jurisdiction – is where the
summons to the respondent or by his respondent, being clothed with the power
voluntary appearance in court. to determine the case, oversteps his
2. If the action is filed with the CA or the SC – authority as determined by law.
The court acquires jurisdiction over the 4. Grave abuse of discretion – is where the
respondents with the service on them of respondent acts in a capricious,
its orders indicating its initial action on whimsical, arbitrary or despotic manner
the petition or by voluntary submission to in the exercise of his judgment as to be
such jurisdiction. said to be equivalent to lack of
jurisdiction. The abuse of discretion must
CERTIORARI be so patent and gross as to amount to an
evasion of positive duty or to a virtual
Q: What is certiorari? refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as
A: A writ issued by a superior court to an inferior where the power is exercised in an
court, board or officer exercising judicial or quasi- arbitrary and despotic manner by reason
judicial functions whereby the record of a particular of passion or personal hostility.
case is ordered to be elevated for review and 5. Plain, speedy and adequate remedy – is
correction in matters of law. one which promptly relieves the
petitioner from the injurious effects of
Note: An original action for certiorari, prohibition, and the judgment and the acts of the lower
mandamus is an independent action. As such, it does court or agency.
not interrupt the course of the principal.
Q: Which court has jurisdiction over petitions for
Note: A petition for certiorari must be based on certiorari?
jurisdictional grounds because as long as the
respondent acted with jurisdiction, any error A: The courts have concurrent jurisdiction,
committed by him or it in the exercise thereof will
however, petitions are subject to the rule on
amount to nothing more than an error of judgment
hierarchy of courts.
which may be reviewed or corrected by appeal
(Microsoft Corp. vs. Best Deal Computer Center Corp.,
GR 148029, Sept. 24, 2002; Estrera vs. CA, GR 154235,
Aug. 16, 2006). Q: Does the filing of a petition for certiorari
interrupt the running of the reglamentary period?
Q: Define the following.
A: No. The rule is the same for prohibition and
A: mandamus since the remedies under Rule 65 are
1. Judicial function – is where the tribunal or independent actions.
person has the power to determine what
139
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: Distinguish certiorari under Rule 65 and principal case. It is necessary therefore, to avail of
certiorari under Rule 45. either a temporary restraining order or a writ of
preliminary injunction to be issued by a higher
A: court against the public respondent so the latter
Rule 65 Rule 45 may, during the pendency of the petition, be
Findings of fact of Court GR: Findings of fact of CA enjoined from further proceeding with the case (sec
of Appeals are not are conclusive 7, Rule 65).
conclusive or binding
upon SC Q: Are the remedies of appeal and certiorari
Involves question of Involves question of law exclusive?
jurisdiction
Mode of appeal Mode of review A:
Directed against an Involves the review of the GR: Where the proper remedy is appeal, the
interlocutory order of a judgment final orders or action for certiorari will not be entertained.
court or where there is resolutions of the CA, Certiorari is not a remedy for errors of
no appeal or any other Sandiganbayan, CTA, RTC
judgment. Errors of judgment are correctible by
plain, speedy or adequate or other courts
appeal; errors of jurisdiction are reviewable by
remedy
certiorari.
Filed not later than 60 Filed within 15 days from
days from notice of notice of judgment, final
judgment, order or order or resolution XPN: A petition for certiorari may be allowed
resolution appealed from appealed from despite the availability of the remedy of appeal
Unless a writ of Stays the judgment or when:
preliminary injunction or order appealed from 1. Appeal does not constitute a speedy and
temporary restraining adequate remedy;
order is issued, it does 2. Orders were issued either in excess of or
not stay the challenged without jurisdiction;
proceeding 3. For certain special considerations as for
The judge, court, quasi- The appellant and the public policy or public welfare;
judicial agency, tribunal, appellee are the original 4. Order is a patent nullity;
corporation, board, parties to the action, and 5. Decision in the certiorari case will avoid
officer or person shall be the lower court or quasi- future litigation; or
public respondents who judicial agency is not 6. In criminal actions, the court rejects
are impleaded in the impleaded rebuttal evidence for the prosecution as,
action in case of acquittal, there could be no
Motion for Motion for remedy (Regalado, Remedial Law
reconsideration or for reconsideration is not
Compendium, Vol. I, p. 783, 2007 ed.).
new trial is required. required
Note: When the remedy by appeal had already been
If a motion for lost due to petitioner’s own neglect or error in the
reconsideration or new choice of remedies, certiorari cannot lie. The two
trial is filed, another 60 remedies are mutually exclusive (Meralco v. CA, G.R.
days shall be given to the No. 88396, July 4, 1990).
petitioner (A.M. No. 02-
03-SC) PROHIBITION
Court exercises original The court is in the
jurisdiction exercise of its appellate Q: What is prohibition?
jurisdiction and power of
review. A: A remedy to prevent inferior courts,
Filed with the RTC, CA, Filed with the SC corporations, boards or persons from usurping or
Sandiganbayan or
exercising a jurisdiction or power which they have
COMELEC
not been vested by law.
Q: Will the filing of a petition for certiorari Note: It is commenced by a verified petition
interrupt the course of the principal case? Or is an accompanied by a certified true copy of the judgment,
injunctive relief necessary? order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent
A: The filing of a petition for certiorari against the thereto, and a sworn certification of non-forum
lower court or tribunal or any other public shopping (Sec. 2, Rule 65).
respondent does not interrupt the course of the
140
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
141
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Note: Certiorari is not the remedy for a loss appeal. Q: When is prohibition issued?
142
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
143
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
appeal (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305).
A:
Prohibition Mandamus Injunction
Prohibition is an extraordinary writ Mandamus is an extraordinary writ Main action for injunction seeks to
commanding a tribunal, corporation, commanding a tribunal, corporation, enjoin the defendant from the
board or person, whether exercising board or person, to do an act required to commission or continuance of a
judicial, quasi-judicial or ministerial be done: specific act, or to compel a particular
functions, to desist from further (a) When he unlawfully neglects the act in violation of the rights of the
proceedings when said proceedings are performance of an act which the law applicant. Preliminary injunction is a
without or in excess of its jurisdiction, or specifically enjoins as a duty, and there is provisional remedy to preserve the
with abuse of its discretion, there being no other plain, speedy and adequate status quo and prevent future wrongs
no appeal or any other plain, speedy and remedy in the ordinary course of law; or in order to preserve and protect
adequate remedy in the ordinary course (b) When one unlawfully excludes certain interests or rights during the
of law (Sec. 2, Rule 65). another from the use and enjoyment of pendency of an action.
a right or office to which the other is
entitled (Sec. 3, Rule 65).
Special civil action Special civil action Ordinary civil action
To prevent an encroachment, excess, To compel the performance of a For the defendant either to refrain
usurpation or assumption of jurisdiction; ministerial and legal duty; from an act or to perform not
necessarily a legal and ministerial
duty;
May be directed against entities May be directed against judicial and non- Directed against a party
exercising judicial or quasi-judicial, or judicial entities
ministerial functions
Extends to discretionary functions Extends only to ministerial functions Does not necessarily extend to
ministerial, discretionary or legal
functions;
Always the main action Always the main action May be the main action or just a
provisional remedy
May be brought in the Supreme Court, May be brought in the Supreme Court, May be brought in the Regional Trial
Court of Appeals, Sandiganbayan, or in Court of Appeals, Sandiganbayan, or in Court which has jurisdiction over the
the Regional Trial Court which has the Regional Trial Court which has territorial area where respondent
jurisdiction over the territorial area jurisdiction over the territorial area resides.
where respondent resides. where respondent resides.
f. EXCEPTIONS TO FILING OF MOTION FOR passed upon by the lower court, or are
RECONSIDERATION BEFORE FILING PETITION the same as those raised and passed upon
in the lower court;
Q: Is it an absolute rule that before recourse to 3. Urgent necessity for the resolution of the
certiorari is taken a motion for reconsideration question, and any further delay would
must be filed? prejudice the interests of the Government
or of the petitioner, or the subject matter
A: of the action is perishable;
GR: Petition for certiorari will not be 4. Under the circumstances, a motion for
entertained unless the public respondent has reconsideration would be useless;
been given first the opportunity through a 5. Petitioner was deprived of due process
motion for reconsideration to correct the error and there is extreme urgency for relief;
being imputed to him. 6. In a criminal case, relief from an order of
arrest is urgent and the granting of such
XPNs: A prior motion for reconsideration is not relief by the trial court is improbable;
necessary to entertain a petition for certiorari 7. Proceedings in the lower court are a
where: nullity for lack of due process;
1. Order is a patent nullity, as where the 8. Proceedings were ex parte or in which the
court a quo has no jurisdiction; petitioner had no opportunity to object;
2. Questions raised in the certiorari and
proceedings have been duly raised and
144
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
9. Issue raised is one purely of law or where without merit, prosecuted manifestly for delay, or
public interest is involved. raises questions which are too unsubstantial to
require consideration?
g. RELIEFS PETITIONER IS ENTITLED TO
A: The court may dismiss the petition. In such
Q: What are the reliefs a petitioner is entitled to event, the court may award in favor of the
with this action? respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting
A: counsel to administrative sanctions under Rules 139
The primary relief will be the annulment or and 139-B.
modification of the judgment, order, or resolution
or proceeding subject of the petition. It may also The Court may impose motu proprio, based on res
include such other Incidental reliefs as law and ipsa loquitur, other disciplinary sanctions or
justice may require (sec 1, Rule 65) The court may measures on erring lawyers for patently dilatory
also award damages in its judgment and the and unmeritorious petitions for certiorari (Sec. 8, as
execution of the award for damages or costs shall amended by A.M. No. 07-7-12-SC).
follow the procedure in sec 1 of rule 39 (sec 9, rule
65). 8. QUO WARRANTO
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Manila. Is the contention of Cars Co. correct? Q: What are the requisites of a valid
Why? expropriation?
A: if judgment be rendered in favor of the person b. TWO STAGES IN EVERY ACTION FOR
averred in the complaint to be entitled to the public EXPROPRIATION
office, he may, after taking the oath of office and
Q: What are the two (2) stages in expropriation
executing any official bond required by law:
proceedings?
1. take upon himself the execution of the
office;
A:
2. may immediately thereafter demand all
1. Determination of the authority of the
the books and papers in the respondent’s
plaintiff to exercise the power of eminent
custody or control appertaining to the
domain and the propriety of the exercise
office to which the judgment relates; and
in the context of the facts involved.
3. may bring an action against the
2. Determination of just compensation.
respondent to recover damages sustained
by such persons by reason of usurpation.
Q: City of Iloilo (petitioner) represented by Mayor
Treñas filed a complaint for eminent domain
Note: when there is a judgment in a quo warranto
against Javellana seeking to expropriate two
action finding usurpation to be existent, respondent
must be ousted and altogether excluded therefrom, parcels of land. Mayor Treñas filed a motion for
and that the petitioner or relator, as the case may be, issuance of writ of possession alleging that it had
recover his cost. Such further judgment may be deposited 10% of the amount of compensation of
rendered determining the respective rights in the which the court issued. A writ of possession was
public office, position, or franchise of all the parties to subsequently issued, and petitioner was able to
the action, as justice requires. take physical possession of the properties. After
which, the expropriation proceedings remained
9. EXPROPRIATION dormant. 16 years later, Javellana filed an ex parte
motion/manifestation, where he alleged that
Q: What is expropriation? when he sought to withdraw the money, he
discovered that no deposit was made. Thus,
A: The procedure for enforcing the right of eminent Javellana filed a complaint for recovery of
domain.
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
possession, fixing and recovery of rental and owner upon the filing of the complaint to be
damages. The City of Iloilo argues that Javellana entitled to a writ of possession. As a relevant
could no longer bring an action for recovery since standard for initial compensation, the market value
the subject property was already taken for public for the property as stated in the tax declaration or
use. The trial court in its orders and amended the current relevant zonal valuation of the Bureau
orders maintained that the assailed orders issued of internal Revenue (BIR), whichever is higher and
by it were interlocutory in character and as such the value of the improvements and/or structures
are always subject to modification and revision by using the replacement cost method.
the court anytime. Is the order of expropriation
final? Note: RA 8974 applies in instances when the national
government expropriates property for national
A: Expropriation proceedings have two stages. The government infrastructure projects. Thus, if
first phase ends with an order of dismissal, or a expropriation is engaged by the national government
determination that the property is to be acquired for purposes other that national infrastructure
for a public purpose. The second phase consists of projects, the assessed value standard and the deposit
the determination of just compensation. Both mode prescribed in Rule 67 continues to apply.
orders, being final, are appealable.
The intent of RA 8974 to supersede the system of
deposit under Rule 67 with the scheme of immediate
An order of condemnation or dismissal is final,
payment in cases involving national government
resolving the question of whether or not the infrastructure projects is indeed very clear (MCWD v. J.
plaintiff has properly and legally exercised its power King and Sons, GR 175983, April 16, 2009)
of eminent domain. Once the first order becomes
final and no appeal thereto is taken, the authority d. NEW SYSTEM OF IMMEDIATE PAYMENT OF
to expropriate and its public use can no longer be INITIAL JUST COMPENSATION
questioned. Thus, it has become final, and the
petitioner’s right to expropriate the property for a Q: What is the new system of immediate payment
public use is no longer subject to review. (City of of initial just compensation?
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
168967, Feb. 12, 2010).
A: For the acquisition of right-of-way, site or
location for any national government infrastructure
Q: May Congress enact a law providing that a
project through expropriation, upon the filing of the
5,000 square meter lot, a part of the UST
filing of the complaint, and after due notice to the
compound in Sampaloc, Manila, be expropriated
defendant, the implementing agency shall
for the construction of a park in honor of former
immediately pay the owner of the property the
City Mayor ArsenioLacson? As compensation to
amount equivalent to the sum of (1) 100 percent of
UST, the City of Manila shall deliver its 5-hectare
the value of the property based on the current
lot in Sta. Rosa, Laguna originally intended as a
relevant zonal valuation of the BIR; and (2) the
residential subdivision for the Manila City Hall
value of the improvements and/or structures as
employees. Explain.
determined under Sec. 7 of RA 8974 (Sec. 4, RA
A: Yes, Congress may enact a law to expropriate 8974).
property but it cannot limit just compensation. The
determination of just compensation is a judicial e. DEFENSES AND OBJECTIONS
function and Congress may not supplant or prevent
the exercise of judicial discretion to determine just Q: What must be filed when defendant has an
compensation. Under Sec. 5, Rule 67 of the Rules of objection?
Court, the ascertainment of just compensation
requires the evaluation of 3 commissioners. (2006 A: If a defendant has any objection to the filing of
Bar Question) or the allegations in the complaint, or any objection
or defense to the taking of his property, he shall
c. WHEN PLAINTIFF CAN IMMEDIATELY ENTER serve his answer within the time stated in the
INTO POSSESSION OF THE REAL PROPERTY summons. The answer shall specifically designate or
identify the property in which he claims to have an
Q: What is the new system of immediate payment interest, state the nature and extent of the interest
of initial compensation? claimed, and adduce all his objections and defenses
to the taking of his property. No counterclaim,
A: RA 8974 provides a modification of sec 2, Rule 67 cross-claim or third-party complaint shall be alleged
where the Government is required to make or allowed in the answer or any subsequent
immediate and direct payment to the property pleading.
Note: if there are no objections, he must file and serve overruled or when no party appears to object to or
a notice of appearance and manifestation to that to defend against the expropriation (Sec 4, Rule 67).
effect. And thereafter, shall be entitled to notice of all
proceedings. Note: after the rendition of the order of expropriation,
the plaintiff shall not be permitted to dismiss or
Q: What is the duty of the court if the defendant discontinue the proceeding except upon such terms as
waives his defenses or objections? the court deems just and equitable (Sec 4, Rule 67)
149
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
not be effectual until the court shall have accepted a. JUDGMENT ON FORECLOSURE FOR PAYMENT
their report and rendered judgment in accordance OR SALE
with their recommendations. Except as otherwise
expressly ordered by the court, such report shall be Q: What is judgment on foreclosure?
filed within sixty (60) days from the date the
commissioners were notified of their appointment, A: It is the judgment of the court ordering the
which time may be extended in the discretion of debtor to pay within a period not less than 90 days
the court. Upon the filing of such report, the clerk nor more than 120 days from the entry of judgment
of the court shall serve copies thereof on all after ascertaining the amount due to the plaintiff
interested parties, with notice that they are allowed (Sec. 2, Rule 68).
ten (10) days within which to file objections to the
findings of the report, if they so desire (Sec. 7, Rule Q: What is foreclosure sale?
67).
A: When the defendant fails to pay the amount of
i. RIGHTS OF PLAINTIFF UPON JUDGMENT AND the judgment within the period specified therein,
PAYMENT the court, upon motion, shall order the property to
be sold in the manner and under the provisions of
Q: What are the rights of the plaintiff after Rule 39 and other regulations governing sales of
payment? real estate under executions (Sec.3, Rule 68).
A: After payment of just compensation, as Q: When is the sale of mortgaged property proper
determined in the judgment, the plaintiff shall have and how must it be brought about?
the right to enter upon the property expropriated
and to appropriate the same for the public use or A: if the mortgagor fails to pay the sum due within
purpose defined in the judgment or to retain the period (90-120 days) stated by the court in its
possession already previously made in accordance judgment, it would be good practice for the
with Sec 2, Rule 67. mortgagee to file a motion for the sale of the
mortgaged property because under the Rules, the
j. EFFECT OF RECORDING OF JUDGMENT court shall order the sale of the property only
“upon motion of the mortgagee” (sec 3, rule 68)
Q: What is the effect of the recording of the
judgment? Note: it has been held that the motion for the sale of
the mortgaged property is non-litigable and may be
A: When real estate is expropriated, a certified copy made ex parte. After the foreclosure sale has been
of such judgment shall be recorded in the registry effected, the mortgagee should file a motion for the
of deeds of he place in which the property is confirmation of the sale which requires notice and
hearing.
situated, and its effect shall be to vest in the
plaintiff the title to the real estate so described for
b. SALE OF MORTGAGED PROPERTY
such public use or purpose (Sec 13, Rule 69).
Q: What is the effect of confirmation of the sale?
10. FORECLOSURE OF REAL ESTATE MORTGAGE
A: It shall divest the rights in the property of all the
Q: What is foreclosure of Real Estate Mortgage
parties to the action and shall vest their rights in
(REM)?
the purchaser, subject to such rights of redemption
as may be allowed by law (Sec 3, Rule 68)
A: It is the remedy used for the satisfaction of any
monetary obligation, which a person owes to
Note: it is said that title vests in the purchaser upon a
another, by proceeding against the property used valid confirmation of the sale and retroacts to the date
to secure said obligation. of sale.
Note: It is commenced by a complaint setting forth the c. DISPOSITION OF PROCEEDS OF SALE
date and due execution of the mortgage; the names
and residences of the mortgagor and the mortgagee; a Q: How is the disposition of the proceeds of the
description of the mortgaged property; date of the
sale done?
note or other documentary evidence of the obligation
secured by the mortgage, the amount claimed to be
A: The proceeds of the sale of the mortgaged
unpaid thereon; and the names and residences of all
property shall, after deducting the costs of the sale,
persons having or claiming an interest in the property
subordinate in right to that of the holder of the be paid to the person foreclosing the mortgage, and
mortgage (Sec. 1). when there shall be any balance or residue after
151
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
paying off the mortgage debt due, the same shall On January 10, 2003, GAP filed an ex-parte motion
be paid to junior encumbrances in the order of their with the court for the issuance of a writ of
priority. If there be any further balance after paying possession to oust Gretchen from the land. It also
them or if there be no junior encumbrances, the filed a deficiency claim for P800,000 against Arlene
same shall be paid to the mortgagor or any person and Gretchen. The deficiency claim was opposed
entitled thereto (Sec. 4) by Arlene and Gretchen.
Q: What claims shall be satisfied from the 1. Resolve the motion for the issuance of a
proceeds of the public sale of the mortgaged writ of possession.
property (in order)? 2. Resolve the deficiency claim of the bank.
A: A:
1. Costs incurred in the sale of property; 1. In judicial foreclosure by banks such as GAP,
2. Claim of the person foreclosing the the mortgagor or debtor whose real
property; property has been sold on foreclosure has
3. Claims of junior encumbrancers in the the right to redeem the property within 1
order of their priority; year after the sale (or registration of the
4. Residue goes to the mortgagor or his sale). However, under Sec. 47 of the General
authorized agent, or any other person Banking Law of 2000, the purchaser at the
entitled to it. auction sale has the right to obtain a writ of
possession after the finality of the order
d. DEFICIENCY JUDGMENT confirming sale. The motion for writ of
possession, however, cannot be filed ex
Q: What is deficiency judgment? parte. There must be a notice of hearing.
2. The deficiency claim of the bank may be
A: It is the judgment rendered by the court holding enforced against the mortgage debtor
the defendant liable for any unpaid balance due to Arlene, but it cannot be enforced against
the mortgagee if the proceeds from the foreclosure Gretchen, the owner of the mortgaged
sale do not satisfy the entire debt. property, who did not assume personal
liability of the loan. (2003 Bar Question)
Q: What are the instances when the court cannot
render deficiency judgment? (1) INSTANCES WHEN COURT CANNOT RENDER
DEFICIENCY JUDGMENT
A: where the debtor-mortgagor is a non-resident
and who at the time of the filing of the action for
Q: What are the instances when the courts cannot
foreclosure and during the pendency of the
render deficiency judgment?
proceedings was outside the Philippines, then it is
not procedurally feasible. It is by nature in A: When the:
personam and jurisdiction over the person is
mandatory. 1. Case is covered by the Recto Law (Art.
1484, NCC);
Q: Arlene borrowed P1 million from GAP Bank 2. Mortgagor is a non-resident and is not
(GAP) secured by the titled land of her friend found in the Philippines, unless there is
Gretchen who, however, did not assume personal attachment;
liability for the loan. Arlene defaulted and GAP 3. Mortgagor dies, the mortgagee may file
filed an action for judicial foreclosure of the real his claim with the probate court under
estate mortgage impleading Arlene and Gretchen Sec. 7, Rule 86; and
as defendants. The court rendered judgment 4. Mortgagee is a third person but not
directing Arlene to pay the outstanding account of solidarily liable with the debtor.
P1.5 million (principal plus interest) to GAP. No
appeal was taken by Arlene. Arlene failed to pay e. JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL
the judgment debt within the period specified in FORECLOSURE
the decision. At the foreclosure sale, the land was
sold to GAP for P1.2 million. The sale was Q: Distinguish judicial foreclosure from
confirmed by the court, and the confirmation of extrajudicial foreclosure.
the sale was registered with the Registy of Deeds
on January 5, 2002. A:
Judicial Foreclosure Extrajudicial Foreclosure
Governed by Rule 68 Governed by Act 3135
There is only an equity of appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R.
Right of redemption
redemption except when No. 73341, Aug. 21, 1987)
exists
the mortgagee is a bank
Requires court No court intervention 11. PARTITION
intervention necessary
Mortgagee is given a Q: What is partition?
special power of attorney
Mortgagee need not be
in the mortgage contract A: It is a process of dividing and assigning property
given a special power of
to foreclose the
attorney. owned in common among the various co-owners
mortgaged property in
thereof in proportion to their respective interests in
case of default.
said property.It presupposes the existence of a co-
Note: A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in which
ownership over a property between two or more
case, he will be deemed to have waived his right to persons. The rule allowing partition originates from
proceed against the property in a foreclosure a well-known principle embodied in the Civil Code,
proceeding. (Movido v. RFC, G.R. No. L-11990, May 29, that no co-owner shall be obliged to remain the co-
1959) ownership. Because of this rule, he may demand at
any time the partition of the property owned in
f. EQUITY OF REDEMPTION VERSUS RIGHT OF common (Art. 494).
REDEMPTION
Note: It is commenced by a complaint. (Sec.1, Rule 69)
Q: Distinguish equity of redemption from right of
redemption. Q: What are the requisites of a valid partition?
A: A:
Equity of Redemption Right of Redemption 1. Right to compel the partition;
Right of the debtor, his 2. Complaint must state the nature and
Right of the defendant
successor in interest or any extent of plaintiff's title and a description
mortgagor to
judicial creditor or judgment of the real estate of which partition is
extinguish the
creditor of said debtor or demanded; and
mortgage and retain
any person having a lien on 3. All other persons interested in the
ownership of the
the property subsequent to
property by paying the property must be joined as defendants
the mortgage or deed of
debt within 90-120 (Sec. 1, Rule 69)
trust under which the
days after the entry of
property is sold to redeem
judgment or even after a. WHO MAY FILE A COMPLAINT; WHO SHOULD BE
the property within 1 year
the foreclosure sale MADE DEFENDANT
from the registration of the
but prior to
Sheriff’s certificate of
confirmation Q: Who may file and who should be made
foreclosure sale
Governed by Secs. 29-31, defendants?
Governed by Rule 68
Rule 39
A: The action shall be brought by the person who
Note: There is no right of redemption in judicial has a right to compel the partition of real estate
foreclosure sale after the confirmation of sale except (Sec. 1, Rule 69) or of an estate composed of
those granted by banks or banking institutions in favor personal property, or both real and personal
of non-judicial persons as provided by the General property (Sec. 13, Rule 69). The plaintiff is a person
Banking Act (Government Insurance System v. CFI of who is supposed to be a co-owner of the property
Iloilo, G.R. No. 45322, July 5, 1989). or estate sought to be partitioned. The defendants
are all the co-owners.
In extrajudicial foreclosure, the mortgagor has the
right to redeem the property within one year from the Q: What is the effect of non-inclusion of a co-
registration of the deed of sale. However, Sec. 47 of owner in an action for partition?
the General Banking Act provides that in case of
extrajudicial foreclosure, juridical persons shall have A:
the right to redeem the property until, but not after, 1. Before judgment – not a ground for a
the registration of the certificate of foreclosure sale motion to dismiss. The remedy is to file a
which in no case shall be more than 3 months after
motion to include the party.
foreclosure, whichever is earlier.
2. After judgment – makes the judgment
therein void because co-owners are
The pendency of the action stops the running of the
right of redemption. Said right continues after indispensable parties.
perfection of an appeal until the decision of the
153
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Note: Creditors or assignees of co-owners may 2. Judgment as to the fruits and income of
intervene and object to a partition affected without the property
their concurrence. But they cannot impugn a partition 3. Judgment of partition (Riano, Civil
already executed unless there has been fraud or in Procedure: A Restatement for the Bar, p.
case it was made notwithstanding a formal opposition 596, 2009 ed.)
presented to prevent it. (Sec. 12, Rule 69)
d. ORDER OF PARTITION AND PARTITION BY
b. MATTERS TO ALLEGE IN THE COMPLAINT FOR
AGREEMENT
PARTITION
Q: What is an order of partition?
Q: What are the matters to be alleged in the
complaint for partition?
A: The order of partition is one that directs the
parties or co-owners to partition the property
A: The plaintiff shall state in his complaint, the
nature and extent of his title, an adequate Q: When does the court issue the order of
description of the real estate of which partition is partition?
demanded, and shall join as defendants all other
persons interested in the property (Sec. 1, Rule 69). A: During the trial, the court shall determine
He must also include a demand for the accounting whether or not the plaintiff is truly a co-owner of
of the rents, profits and other income from the the property, that there is indeed a co-ownership
property which he may be entitled to. These cannot among the parties, and that a partition is not legally
be demanded in another action because they are proscribed thus may be allowed. If the court so
parts of the cause of action for partition. They will finds that the facts are such that a partition would
be barred if not set up in the same action pursuant be in order, and that the plaintiff has a right to
to the rule against splitting a single cause of action. demand partition, the court will issue an order of
partition.
c. TWO (2) STAGES IN EVERY ACTION FOR
PARTITION Note: The court shall order the partition of the
property among all the parties in interest, if after trial
Q: What are the two aspects of partition it finds that the plaintiff has the right to partition (Sec.
proceedings? 2, Rule 69). It was held that this order of partition
including an order directing an accounting is final and
A: not interlocutory and hence, appealable; thus,
1. Existence of co-ownership; and revoking previous contrary rulings on the matter. A
2. Accounting or how to actually partition final order decreeing partition and accounting may be
the property. appealed by any party aggrieved thereby.
Note: During the trial, the court shall determine Q: When is partition by agreement proper?
whether or not the plaintiff is truly a co-owner and
there is co-ownership and that partition is not legally
proscribed, the court will issue an order of partition. It
A: The parties may make the partition among
directs the parties to partition the property by proper themselves by proper instruments of conveyance, if
instruments of conveyance, if they agree among they agree among themselves. If they do agree, the
themselves. court shall then confirm the partition so agreed
upon by all of the parties, and such partition,
If they do agree, the court shall then confirm the together with the order of the court confirming the
partition so agreed and such is to be recorded in the same, shall be recorded in the registry of deeds of
registry of deeds of the place in which the property is the place in which the property is situated (Sec. 2,
situated (Sec 2, Rule 69). There always exist the Rule 69).
possibility that the parties are unable to agree on the
partition. Thus, the next stage is the appointment of
e. PARTITION BY COMMISSIONERS; APPOINTMENT
commissioners.
OF COMMISSIONERS, COMMISSIONER’S REPORT;
Q: What are the stages in an action for partition COURT ACTION UPON COMMISSIONER’S REPORT
which could be the subject of appeal?
Q: Can the appointment of commissioners be
A: dispensed with in an action for partition?
the parties. They have the power to effect the A; The provisions of this Rule shall apply to
partition but not to inquire into question of partitions of estates composed of personal
ownership or possession property, or of both real and personal property, in
so far as the same may be applicable (Sec. 13, Rule
Note: if parties cannot agree, the court shall appoint 69).
not more than 3 commissioners of competent and
disinterested persons to make partition. They shall h. PRESCRIPTION OF ACTION
make full and accurate report to the court of all their
proceedings as to the partition. Upon the filing of such Q: What is the rule on prescription in an action of
report, copies of which shall be served to the clerk of
partition?
court upon all interested parties with notice that they
are allowed 10 days within which to file objections to
A: Prescription of action does not run in favor of a
the findings of the report, if they so desire.
co-owner or co-heir against his co-owner or co-
The court may upon hearing accept the report and heirs as long as there is a recognition of the co-
render judgment in accordance with the same, may ownership expressly or impliedly (Art. 494). Also,
recommit to the commissioners for further the action for partition cannot be barred by
proceedings, or reject the report and render judgment prescription
that shall effectuate a fair and just partition.
12. FORCIBLE ENTRY AND UNLAWFUL DETAINER
f. JUDGMENT AND ITS EFFECTS
a. DEFINITIONS AND DISTINCTION
Q: What should the judgment contain and its
effects? Q: What is forcible entry?
A: The judgment shall state definitely, by metes and A: It is entry effected by force, intimidation, threat,
bounds and adequate description, the particular strategy, or stealth; the action is to recover
portion of the real estate assigned to each party, possession founded upon illegal possession from
the effect of the judgment shall be to vest in each the beginning.
party to the action in severalty the portion of the
real estate assigned to him. A certified copy of the Note: It is commenced by a verified complaint. (Sec. 1)
judgment shall in either case be recorded in the
registry of deeds of the place in which the real Q: What are the requisites of a valid forcible
estate is situated, and the expenses of such entry?
recording shall be taxed as part of the costs of the
action (Sec. 11, Rule 69). A:
a. If the whole property is assigned to one of the 1. A person is deprived of possession of any
parties upon his paying to the others the sum or land or building by force, intimidation,
sums ordered by the court, the judgment shall state threat, strategy, or stealth; and
the fact of such payment and of the assignment of 2. Action is brought within 1 year from the
the real estate to the party making the payment, unlawful deprivation. (Sec. 1)
and the effect of the judgment shall be to vest in
the party making the payment the whole of the real Q: What are the questions to be resolved in an
estate free from any interest on the part of the action for forcible entry?
other parties to the action.
A:
b. If the property is sold and the sale confirmed by
1. Who has actual possession over the real
the court, the judgment shall state the name of the
property;
purchaser or purchasers and a definite description
2. Was the possessor ousted therefrom
of the parcels of real estate sold to each purchaser,
within one year from the filing of the
and the effect of the judgment shall be to vest the
complaint by force, intimidation, strategy,
real estate in the purchaser or purchasers making
threat or stealth; and
the payment or payments, free from the claims of
3. Does the plaintiff ask for the restoration
any of the parties to the action.
of his possession (Dizon v. Concina, G.R.
No. 23756, Dec. 27, 1969)
g. PARTITION OF PERSONAL PROPERTY
Q: What is unlawful detainer?
Q: What is the rule on partition of personal
property?
A: It is unlawful detention by a person who has
acquired possession rightfully, but who detains the
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
property after the right to keep possession has force, intimidation, the possession of the
ended. strategy, threat property under his
or stealth. contract with the plaintiff.
Demand is jurisdictional if
Note: It is commenced by a verified complaint. (Sec. 1) No previous demand for the ground is non-
the defendant to vacate payment of rentals or
Q: What are the requisites of a valid unlawful the premises is necessary. failure to comply with the
detainer? lease contract.
The plaintiff must prove
A: that he was in prior
The plaintiff need not
1. Possession of any land or building is physical possession of the
have been in prior physical
unlawfully withheld from a lessor, vendor, premises until he was
possession.
vendee, or other person after the deprived thereof by the
expiration or termination of the right to defendant.
hold possession by virtue of any contract The 1 year period is
Period is counted from the
generally counted from
express or implied; date of last demand or last
the date of actual entry on
2. Action is brought within 1 year after such letter of demand.
the land.
unlawful deprivation or withholding of
possession; and
b. DISTINGUISHED FROM ACCION PUBLICIANA
3. Demand to pay or comply with the
AND ACCION REINVINDICATORIA
conditions of the lease and to vacate is
made upon the lessee. (Sec. 1)
Q: What are the possessory actions on real
property?
Q: Is formal contract a prerequisite in unlawful
detainer? A:
Accion Accion Accion
A: The existence of a formal contract is not Interdictal Publiciana Reinvindicatoria
necessary in unlawful detainer. Even if there is no Summary
formal contract between the parties, there can still A plenary action
action for the An action for the
be an unlawful detainer because implied contracts for the recovery
recovery of recovery of
are covered by ejectment proceedings. Possession of the real right
physical ownership,
by tolerance creates an implied promise to vacate of possession
possession which
when the
the premises upon the demand of the owner (Peran where the necessarily
dispossession
v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983). disposses-sion includes the
has lasted for
has not lasted recovery of
more than 1
Q: Does the amount of rents and damages prayed for more than possession.
year.
for in an action for forcible entry and unlawful 1 year.
detainer affect the jurisdiction of the courts? RTC has
All cases of RTC has
jurisdiction if
forcible entry jurisdiction if the
A: No. The amount of rents and damages claimed the value of the
and unlawful value of the
does not affect jurisdiction of the MTCs because the property
detainer property
same are only incidental or accessory to the main exceeds
irrespective of exceeds P20,000
action (Lao SengHian v. Lopez, G.R. No. L-1950, May P20,000 or
the amount of or P50,000 in
16, 1949). P50,000 in
damages or Metro Manila.
Metro Manila.
unpaid rentals
Note: If only rents or damages are claimed in an sought to be MTC has
ordinary action, the action is personal and the amount MTC has
recovered jurisdiction if the
claimed determines whether it falls within the jurisdiction if
should be value of the
jurisdiction of the RTC or the MTC. the value of the
brought to the property does
property does
MTC. not exceed the
Q: Distinguish forcible entry from unlawful not exceed the
above amounts.
detainer. above amounts.
Q: What rule should govern the proceedings of A: The only pleadings allowed to be filed are the
accion interdictal? complaint, compulsory counterclaim and cross-
claim pleaded in the answer, and the answers
A: thereto. All pleadings shall be verified (Sec. 4, Rule
GR: Ejectment cases are summary proceedings 70).
intended to provide an expeditious means of
protecting actual possession or right to f. ACTION ON THE COMPLAINT
possession of property.
Q: What action will the court make upon receipt of
XPN: When the decision of the MTC is appealed
to the RTC, the applicable rules are those of the the complaint?
latter court (Refugia v. CA, G.R. No. 118284, July
5, 1996). A: The court may, from an examination of the
allegations in the complaint and such evidence as
c. JURISDICTION IN ACCION PUBLICIANA AND may be attached thereto, dismiss the case outright
ACCION REINVINDICATORIA on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for
Q: In which court accion publiciana and accion dismissal is found, it shall forthwith issue summons
reinvindicatoria filed? (Sec. 5, Rule 70).
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
may not appeal therefrom, but may avail himself of lower court, the penalty is a fine not
the remedies of certiorari or prohibition. The exceeding 200 pesos or
execution of the judgment shall be suspended imprisonment not exceeding one (1)
pending resolution of such petition, provided such day, or both (Sec. 1)’;
person files a bond fixed by the court which c. If the contempt consists in the
rendered the judgment and conditioned that he will refusal or omission to do an act
abide by and perform the judgment should the which is yet within the power of the
petition be decided against him (Tiongco v. Judge respondent to perform, he may be
Salao, A.M. No. RTJ-06-2009, July 27, 2006). imprisoned by order of the court
concerned until he performs it.
b. PURPOSE AND NATURE OF EACH 2. A person adjudged in direct contempt may not
appeal therefrom. His remedy is a petition for
certiorari or prohibition directed against the
Q: What is the purpose of the power to contempt?
court which adjudged him in direct contempt
(Sec. 2). Pending the resolution of the petition
A: The reason for the power to punish for contempt for certiorari or prohibition, the execution of
is that respect of the courts guarantees the stability the judgment for direct contempt shall be
of their institution. Without such guarantee, said suspended. The suspension however shall take
institution would be resting on shaky foundation place only if the person adjudged in contempt
(Cornejovs.Tan, 85 Phil. 772). files a bond fixed by the court which rendered
the judgment. This bond is conditioned upon
Q: What is the nature of contempt power? his performance of the judgment should the
petition be decided against him.
A: The power to punish for contempt is inherent in
all courts; its existence is essential to the d. REMEDY AGAINST INDIRECT CONTEMPT;
preservation of order in judicial proceedings and to PENALTY
the enforcement of judgments, orders and
mandates of the courts, and, consequently, to the
Q: What is theremedy against indirect contempt
due administration of justice.
and its penalty?
Q: What are the dual aspects on the power to
punish contempt? A:
1. The punishment for indirect contempt depends
A: upon the level of the court against which the act
1. Primarily, the proper punishment of the was committed;
guilty party for his disrespect to the (a) Where the act was committed
courts; and against an RTC or a court of equivalent or
2. Secondarily, his compulsory performance higher rank, he may be punished by a fine
of some act or duty required of him by the not exceeding 30,000 pesos or
court and which he refuses to perform. imprisonment not exceeding 6 months, or
both;
c. REMEDY AGAINST DIRECT CONTEMPT; PENALTY (b) Where the act was committed
against a lower court, he may be
punished by a fine not exceeding 5,000
Q: What is theremedy against direct contempt and
pesos or imprisonment not exceeding one
its penalty?
month, or both. Aside from the applicable
penalties, if the contempt consists in the
A: violation of a writ of injunction, TRO or
1. The penalty for direct contempt depends upon status quo order, he may also be ordered
the court which the act was committed; to make complete restitution to the party
a. If the act constituting direct injured by such violation of the property
contempt was committed against an involved or such amount as may be
RTC or a court of equivalent or alleged and proved (Sec. 7);
higher rank, the penalty is a fine not (c) Where the act was committed
exceeding 2,000 pesos or against a person or entity exercising
imprisonment not exceeding 10 quasi-judicial functions, the penalty
days, or both; imposed shall depend upon the provisions
b. If the act constituting direct of the law which authorizes a penalty for
contempt was committed against a
contempt against such persons or pursuant to law, Rule 71 shall apply suppletorily (Sec
entities. 12, Rule 71)
(2) The person adjudged in indirect contempt
may appeal from the judgment or final order of the Quasi-judicial bodies that have the power to cite
court in the same manner as in criminal cases. The persons for indirect contempt pursuant to Rule 71 of
appeal will not however have the effect of the Rules of Court can only do so by initiating them in
the proper RTC. It is not within their jurisdiction and
suspending the judgment if the person adjudged in
competence to decide the indirect contempt cases.
contempt does not file a bond in an amount fixed
by the court from which the appeal is taken. This
Q: May a non-party be held for contempt?
bond is conditioned upon his performance of the
judgment or final order if the appeal is decided A: No, unless he is guilty of conspiracy with any one
against (Sec. 11). of the parties in violating the court’s orders
(DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30,
e. HOW CONTEMPT PROCEEDINGS ARE 1982).
COMMENCED
Q: Ray, through Atty. Velasco, filed a complaint for
Q: How may an action for indirect contempt be quieting of title against Chiz. Chiz, however,
commenced? interposed the defense that the documents relied
upon by Ray and Atty. Velasco were forged and
A: falsified. Finding that the said documents were
indeed forged and falsified, Judge Victoria cited
1. By order or other formal charge by the Ray and Atty. Velasco for direct contempt and
court requiring the respondent to show ordered them to serve 10 days of detention at the
cause why he should not be punished for Municipal Jail. Ray and Atty. Velasco filed a
contempt (motuproprio); or motion for bail and a motion to lift the order of
2. By a verified petition with supporting arrest. But they were denied outright by Judge
particulars and certified true copies of the Victoria. Is Judge Victoria correct?
necessary documents and papers
(independent action) (Sec. 4). A: No. Direct contempt is a contumacious act done
facie curiae and may be punished summarily
Note: The first procedure applies only when the without hearing. Indirect or constructive contempt,
indirect contempt is committed against a court or in turn, is one perpetrated outside of the sitting of
judge possessed and clothed with contempt powers. the court.
The second mode applies if the contemptuous act was Here the use of falsified and forged documents is a
committed not against a court or a judicial officer with contumacious act. However, it constitutes indirect
authority to punish contemptuous acts. (Nazareno v. contempt not direct contempt. The imputed use of
Barnes, G.R. No. L-59072, Apr. 25, 1984) a falsified document, more so where the falsity of
the document is not apparent on its face, merely
The court does not declare the respondent in default constitutes indirect contempt, and as such is
since the proceeding partakes the nature of a criminal subject to such defenses as the accused may raise
prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct.
in the proper proceedings. Thus, following Sec. 3,
28, 1982).
Rule 71, acontemner may be punished only after a
charge in writing has been filed, and an opportunity
Q: What are the procedural requisites before the
has been given to the accused to be heard by
accused may be punished for indirect contempt?
himself and counsel.
A:
Moreover, settled is the rule that a contempt
1. A charge in writing to be filed;
proceeding is not a civil action, but a separate
2. An opportunity for the person charged to
proceeding of a criminal nature in which the court
appear and explain his conduct; and
exercises limited jurisdiction. Thus, the modes of
3. To be heard by himself or counsel.
procedure and the rules of evidence in contempt
(Regalado v. Go, G.R. No. 167988, Feb. 6,
proceedings are assimilated as far as practicable to
2007)
those adapted to criminal prosecutions. Thus, the
NOTE: The rules on contempt under Rule 71 apply to judge erred in declaring summarily that Ray and
contempt committed against persons or entities Judge Velasco are guilty of direct contempt and
exercising quasi-judicial functions or in case there are ordering their incarceration. He should have
rules for contempt adopted for such bodies or entities conducted a hearing with notice to Ray and Judge
161
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Velasco (Judge Espaool v. Formoso, G.R. No. g. WHEN IMPRISONMENT SHALL BE IMPOSED
150949, June 21, 2007).
Q: When shall imprisonment be imposed?
f. ACTS DEEMED PUNISHABLE AS INDIRECT
CONTEMPT A: When the contempt consists in the refusal or
omission to do an act which is yet in the power of
Q: What are the acts which are deemed the respondent to perform, he may be imprisoned
punishable as indirect contempt? by order of the court concerned until he performs
it. Indefinite incarceration may be resorted to
A:After a charge in writing has been filed, and an where the attendant circumstances are such that
opportunity given to the respondent to comment the non-compliance with the court order is an utter
thereon within such period as may be fixed by the disregard of the authority of the court which has
court and to be heard by himself or counsel, a then no other recourse but to use its coercive
person guilty of any of the following acts may be power. When a person or party is legally and validly
punished for indirect contempt: required by a court to appear before it for a certain
purpose, and when that requirement is disobeyed,
the only remedy left for the court is to use force to
1. Misbehavior an officer of a court in the
bring the person or party before it.
performance of his official duties or in his
official transactions;
2. Disobedience of or resistance to a lawful Note: The punishment is imposed for the benefit of a
writ, process, order, or judgment of a complainant or a party to a suit who has been injured
aside from the need to compel performance of the
court, including the act of a person who,
orders or decrees of the court, which the contemnor
after being dispossessed or ejected from
refuses to obey although able to do so. In effect, it is
any real property by the judgment or within the power of the person adjudged guilty of
process of any court of competent contempt to set himself free.
jurisdiction, enters or attempts or induces
another to enter into or upon such real
property, for the purpose of executing h. CONTEMPT AGAINST QUASI-JUDICIAL BODIES
acts of ownership or possession, or in any
manner disturbs the possession given to Q: What is the rule on contempt against quasi-
the person adjudged to be entitled judicial bodies?
thereto;
3. Any abuse of or any unlawful interference A: The rules on contempt apply to contempt
with the processes or proceedings of a committed against persons or entities exercising
court not constituting direct contempt quasi-judicial functions or in case there are rules for
under section 1 of this Rule; contempt adopted for such bodies or entities
4. Any improper conduct tending, directly or pursuant to law, Rule 71 shall apply suppletorily.
indirectly, to impede, obstruct, or Quasi-judicial bodies that have the power to cite
degrade the administration of justice; persons for indirect contempt can only do so by
5. Assuming to be an attorney or an officer initiating them in the proper RTC. It is not within
of a court, and acting as such without their jurisdiction and competence to decide the
authority; indirect contempt cases. The RTC of the place
6. Failure to obey a subpoena duly served; where contempt has been committed shall have
7. The rescue, or attempted rescue, of a jurisdiction over the charges for indirect contempt
person or property in the custody of an that may be filed (Sec. 12).
officer by virtue of an order or process of
a court held by him (Sec. 3).