University of San Agustin

College of Law
Preliminary Examination
In Remedial Law Review 1
October 13, 2020

Q1.What are the significance of distinctions between actions in rem, in

personam and quasi in rem? (5pts)
The significant distinctions between action in re, action in personam and
action quasi in rem are as follows:

1. As to jurisdiction over the person: in action in rem, it is not a pre-

requisite to confer jurisdiction on the court provide it has acquired
jurisdiction over the res; in action in personam, it is necessary in or
der for the court to validly try and decide the case; while in action
quasi in rem, it not required to confer jurisdiction on the court
provided that it has acquired jurisdiction over the res;
2. As to acquisition of jurisdiction: in action in rem, it acquired upon
seizure and actual custody of court of the subject property; in action
in personam, I is acquired upon service of summons or voluntary
appearance in court; and in action quasi in rem, it is acquired upon
seizure an actual custody of the court of the subject property; and
3. As to binding effect of the decision: in action in rem, decision is
binding against the whole world; in action in personam, it is binding
only upon parties properly impleaded; and in action quasi in rem, it is
binding upon the parties who joined into the action or proceeding.
Q2. Elise obtained a loan of P3 Million from Merchant Bank. Aside from
executing a promissory note in favor of Merchant Bank, she executed a
deed of real estate mortgage over her house and lot as security for her
obligation. The loan fell due but remained unpaid; hence, Merchant Bank
filed an action against Elise to foreclose the real estate mortgage. A month
after, and while the foreclosure suit was pending, Merchant Bank also filed
an action to recover the principal sum of P3 Million against Elise based on
the same promissory note previously executed by the latter.
             In opposing the motion of Elise to dismiss the second action on the
ground of splitting of a single cause of action, Merchant Bank argued that
the ground relied upon by Elise was devoid of any legal basis considering
that the two actions were based on separate contracts, namely, the
contract of loan evidenced by the promissory note, and the deed of real
estate mortgage.
             Is there a splitting of a single cause of action? Explain your answer.
(5pts)

Yes, there is a splitting of a single cause of action.

The contract between the parties is the contract of loan. Deed of Real
Estate Mortgage and Promissory Notes are mere evidence in support of
the existence of the loan. The only cause of action of the Bank against the
Elise is the latter’s failure to pay the mortgage debt. Hence, the bank
cannot split the single cause of action by an action to foreclose the
mortgage and another action to enforce the obligation in the promissory
note.
 
Q3. Ms. A filed a complaint for damages against Ms. B, alleging that Ms. B
negligently caused the demolition of her house's concrete fence, the top
half of which fell on the front portion of Ms. A's car and permanently
damaged its engine. In her answer, Ms. B denied any personal liability for
the damage caused to Ms. A's car, averring that she merely acquiesced to
the advice of her contractor, XYZ Construction Co., to have the concrete
fence demolished. Thus, damages, if any, should be collected from it.

Thereafter, Ms. A filed a motion for judgment on the pleadings,

alleging that Ms. B's statement in her answer is actually a negative
pregnant. Ms. B opposed the motion, reiterating her defense in her answer
which purportedly rendered judgment on the pleadings improper. Ms. B
also moved for the dismissal of the case on the ground of non-joinder of
XYZ Construction Co., which she alleged is an indispensable party to the
case.

(a) Is Ms. A's motion for judgment on the pleadings proper? Explain.
(2pts)

No, A’s Motion for judgment on the pleadings is proper. The defense
of B’s is not a negative pregnant but an affirmative defense.
Affirmative defense is an allegation of a new matter which, while
hypothetically admitting the allegations in the complaint, would
nevertheless prevent or bar recovery from the defendant.

Here, While B hypothetically admitting the demolition of the concrete

fence of A, B raise the mere acquiesced to the advice of contractor to
the demolition as an excuse to negate liability.

Hence, the defense of B being an affirmative defense, A cannot move

for the judgment on the pleadings as B raises an issue in his defense.

(b) Is XYZ Construction Co. an indispensable or a necessary party?

Explain. (2pts)

XYZ Construction Co. is a necessary party. A necessary party is not

indispensable but ought to be joined as party if complete relief is to
 be accorded or for a complete determination or settlement of the
claim subject of the action.

Here, the case may still proceed despite the nonjoinder of XYZ
Construction Co. However, the latter must be joined as a necessary
party in order to have a complete relief, determination or settlement of
the claims between A and B.

(c) Assuming that XYZ Construction Co. is an indispensable party, is

its non-joinder a ground for the dismissal of the case? Explain.
(1pt)

No. Under the rules of Court, non-joinder of an indispensable party is

not a ground for the dismissal of the case. However, this can be set
up as an affirmative defense in the answer of the defendant.

Q4. Angelina sued Armando before the Regional Trial Court (RTC) of
Manila to recover ownership and possession of two parcels of land; one
situated in Pampanga, and the other in Bulacan. May the action prosper?
(5pts)
No, the action will not prosper.
In an action involving title to or possession of real properties, venue lies on
the Court wherein one of the properties is situated.
Here, the real properties are located in Pampanga and the other in
Bulacan. Neither of the properties is situated n Manila. Hence, the civil
action filed in the Regional Trial Court of Manila may not prosper.
Q5. Tailors Toto, Nelson and Yenyen filed a special civil action for certiorari
under Rule 65 from an adverse decision of the National Labor Relations
Commission (NLRC) on the complaint for illegal dismissal against Empire
Textile Corporation. They were terminated on the ground that they failed to
meet the prescribed production quota at least four (4) times. The NLRC
decision was assailed in a special civil action under Rule 65 before the
Court of Appeals (CA). In the verification and certification against forum
shopping, only Toto signed the verification and certification, while Atty.
Arman signed for Nelson. Empire filed a motion to dismiss on the ground of
defective verification and certification. Decide with reasons. (5pts)
The verification and certification is not defective.
Under the rules, verification is deemed substantially complied with when
one who has ample knowledge to swear to the truth of the allegations in the
complaint or petition signs the verification, and when matters alleged in the
petition have been made in good faith or are true and correct.
Here, the signature of the Atty. Arman amounts certification that the petition
has been made in good faith or are true and correct.
Q6. On the basis of an alleged promissory note executed by Harold in favor
of Ramon, the latter filed a complaint for P950,000.00 against the former in
the RTC of Davao City. In an unverified answer, Harold specifically denied
the genuineness of the promissory note.
 
            During the trial, Harold sought to offer the testimonies of the
following: (1) the testimony of an NBI handwriting expert to prove the
forgery of his signature; and (2) the testimony of a credible witness to prove
that if ever Harold had executed the note in favor of Ramon, the same was
not supported by a consideration.
 
            May Ramon validly object to the proposed testimonies? Give a brief
explanation of your answer. (5pts)

Yes. Ramon may validly object to the proposed testimonies.

Under the new rules in civil procedure, testimonies of witnesses must be

specifically included in the pleadings, otherwise, such testimonies may not
be admitted.

Q7. “F” sues his brother, “G” to recover ownership of a parcel of land but
the latter, within the period for pleading, moves to dismiss based on two
grounds, to wit: first, the suit being between members of the same family,
the complaint fails to aver that earnest efforts towards a compromise have
been made, and second, the action is barred by extinctive prescription.
Pending resolution of the motion to dismiss, “F” serves notice to take
“G’s” deposition, which, the latter opposes, claiming that at this stage of the
proceedings no deposition can be obtained without leave of court.
Meanwhile, obviously to meet “G,”s objections in the motion to
dismiss still unresolved, “F” files an amended complaint seeking this time
the partition of the land between him and his brother and alleging that
earnest efforts at amicable settlement have been exerted and have failed.
If you were the trial judge, would you admit “F”s amended complaint
and deny “G”s motion to dismiss despite the latter’s contention that the
amendment would result in a radical change of the cause of action or
theory of the case? Reason. (5pts)
I will admit the amended complaint and deny the motion to dismiss.
The amendment as regards to allegation that earnest efforts at amicable
settlement have been exerted but failed will definitely not change the cause
of action or theory of the case. Such allegation is a mere procedural
requirement that is no longer a ground for the dismissal of the case.
Q8. Teddy filed against Buboy an action for rescission of a contract for the
sale of a commercial lot. After having been told by the wife of Buboy that
her husband was out of town and would not be back until after a couple of
days, the sheriff requested the wife to just receive the summons in behalf of
her husband. The wife acceded to the request, received the summons and
a copy of the complaint, and signed for the same.
 
(a) Was there a valid service of summons upon Buboy? Explain
your answer briefly. (2pts)

No, the service of summons upon the wife of the defendant is not
valid.

To be valid, substituted service as a mere derogation to the

personal service of summons must comply with the requirements of
the rules.
One of the requirements is that the sheriff or court officer serving
the summons must have exerted efforts to serve personally upon
the defendants. In a case decided by the Supreme Court, service in
three (3) attempts in two (2) separate days may suffice as efforts
exerted to serve the summons personally.

In this case, the summons was served by substituted service

without showing that efforts to serve the same was exerted by the
sheriff. He even served the same on his first attempt. Hence, there
was no valid service of summons upon the defendant through his
wife.
 
(b) If Buboy files a motion to dismiss the complaint based on the
twin grounds of lack of jurisdiction over his person and
prescription of the cause of action, may he be deemed to have
voluntarily submitted himself to the jurisdiction of the court?
Explain your answer briefly. (3pts)

Yes, defendant Buboy may be considered to have voluntarily

submitted to the jurisdiction of the Court.

There is voluntary submission to the court’s jurisdiction when a

defendant in his pleading asked the Court for an affirmative
relief.

In this case, defendant Buboy asked for the dismissal not merely
on the ground of lack of jurisdiction but also on the ground of
prescription, an affirmative defense asking for relief. Hence, he
may be considered to have voluntarily submitted to the court’s
jurisdiction.
Q9.   Agatha filed a complaint against Yana in the RTC in Makati City to
collect P350,000.00, an amount representing the unpaid balance on the
price of the car Yana had bought from Agatha. Realizing a jurisdictional
error in filing the complaint in the RTC, Agatha filed a notice of dismissal
before she was served with the answer of Yana. The RTC issued an order
confirming the dismissal.
             Three months later, Agatha filed another complaint against Yana
based on the same cause of action this time in the MeTC of Makati City.
However, for reasons personal to her, Agatha decided to have the
complaint dismissed without prejudice by filing a notice of dismissal prior to
the service of the answer of Yana. Hence, the case was dismissed by the
MeTC.
             A month later, Agatha refiled the complaint against Yana in the
same MeTC.
             May Yana successfully invoke the Two-Dismissal Rule to bar
Agatha’s third complaint? Explain your answer. (5pts)

Two-Dismissal Rule may not be invoked to bar a third complaint.

The said rule requires jurisdiction of a competent court that dismissed the
cases. In the given case, one of the courts that dismissed the case cannot
be considered as competent considering that is has no jurisdiction over the
same.

Q10. In an admiralty case filed by A against Y Shipping Lines (whose

principal offices are in Manila) in the Regional Trial Court, Davao City, the
court issued a subpoena duces tecum directing Y, the president of the
shipping company, to appear and testify at the trial and to bring with him
several documents.
(a)On what valid ground can Y refuse to comply with the subpoena
duces tecum? (2pts)

Y can refuse to comply subpoena duces tecum. Subpoena has no

coercive power to compel a witness to testify against his will.

(b)How can A take the testimony of Y and present the document as

Exhibits other than through the subpoena from the Regional Trial
court? (3pts)

Aside from personal appearance in court to testify, a witness may

give testimony through deposition provided that the same is
obtained within the ambits of the law and the rules.
Q11. What are the limitations on the Remedy of Production and Inspection
of Documents and Things? (10pts)
The limitations are:
1. There must be a motion;
2. The motion must be served upon all parties;
3. The documents are not privileged;
4. The documents must be material to the case; and
5. The documents must be in possession of the other party.

Q12. [a] Briefly explain the procedure on "Interrogatories to Parties" under

Rule 25 and state the effect of failure to serve written interrogatories. (5pts)

The party upon whom the interrogatories have been served shall file and

serve a copy of the answers on the party submitting
the interrogatories within fifteen (15) days after service thereof, unless the
court for good cause shown, extends or shortens the time.

[b] Briefly explain the procedure on "Admission by Adverse Party" under

Rule 26 and the effect of failure to file and serve the request. (5pts)

The sworn statement must be filed and served within a period designated
in the request, which shall not be less than 15 days after service thereof, or
within such further time as the court may allow on motion. 

 Q13. Dick Dixson had sons with different women - (i) Dexter with longtime
partner Delia and (ii) Dongdong and Dingdong with his housemaid Divina.
When Dick fell ill in 2014, he entrusted all his property titles and shares of
stock in various companies to Delia who, in turn, handed them to Dexter for
safekeeping. After the death of Dick, Dexter induced Dongdong and
Dingdong to sign an agreement and waiver of their right to Dick's estate in
consideration of PhP 45 million. As Dexter reneged on his promise to pay,
Dongdong and Dingdong filed a complaint with the RTC of Manila for
annulment of the agreement and waiver. The summons and complaint
were received by Dalia, the housemaid of Dexter, on the day it was first
served. Dexter filed a motion to dismiss on the ground of lack of jurisdiction
over his person. RTC Manila granted the motion to dismiss.

Dongdong and Dingdong thereafter filed a new complaint against Dexter

for annulment of the agreement and waiver. Before Dexter could file his
answer, Dongdong and Dingdong filed a motion to withdraw their complaint
praying that it be dismissed without prejudice. An Order was issued
granting the motion to withdraw without prejudice on the basis that the
summons had not yet been served on Dexter. Dexter filed a motion for
reconsideration of the order of dismissal. He argued that the dismissal
should have been with prejudice under the "two-dismissal rule" of Rule 17,
Section 1 of the Rules of Court, in view of the previous dismissal of the first
case.

Will the two-dismissal rule apply making the second dismissal with
prejudice? (10pts)

Yes, the two-dismissal rule will apply.

The two-dismissal rule applies when the plaintiff has

twice dismissed actions, based on or including the same claim and in a
court of competent jurisdiction. The second notice of dismissal will bar the
refiling of the action because it will operate as an adjudication of the claim
upon the merits.

In this case, all the elements are present, hence, the rule may apply
making the second dismissal with prejudice.

Q14. “A” the surviving husband of “B” executed in favour of “C” a deed
entitled “Contract of Sale a Retro” over a certain parcel of land registered
under the Torrens System in which the owner is described as “A,” married
to “B.” Subsequently, “A” sued “C” for reformation of the contract, alleging
thast what was agreed upon was really a mortgage and not a sale a retro.
“A’s” complaint was dismissed for failure to prosecute and the dismissal
became final.

A year later, the children of “A” and “B” sued “C” for the annulment of
the contract of sale a retro, alleging that the subject piece of land was
acquired by their parents during the marriage, hence, their father had no
right to include in the sale the children’s interest in the property as heirs of
their mother, such children not having consented to the sale.

“C” moved to dismiss the complaint on the ground of bar by a former

judgment.

Resolve the motion to dismiss. (10pts)

The motion to Dismiss must be granted.

Under the rules, a complaint may be dismissed on the ground of res

judicata or prior judgment.

Q15. Juan sued Roberto for specific performance. Roberto knew that Juan
was going to file the case so he went out of town and temporarily stayed in
another city to avoid service of summons. Juan engaged the services of
Sheriff Matinik to serve the summons but when the latter went to the
residence of Roberto, he was told by the caretaker thereof that his
employer no longer resides at the house. The caretaker is a high school
graduate and is the godson of Roberto. Believing the caretaker's story to be
true, Sheriff Matinik left a copy of the summons and complaint with the
caretaker. Was there a valid substituted service of summons? Discuss the
requirements for a valid service of summons. (10pts)

Yes, the service of summons is valid.

In substituted service of summons, what is merely required is that a person

is of sufficient age and discretion. Being a high school graduate will not
negative the fact that the person residing therein is of discretion. Hence,
service of summons upon high school graduate caretaker is valid.

FRANCISCO, CYRIL CLEOPE