Q: When you go up to the SC from a resolution of CA that is tainted with some irregularities, is it correct

to say that because of those irregularities, the CA committed abuse of discretion and therefore a Rule 65
petition, which is a special civil action for certiorari will lie?
A: No. There are three grounds to file a petition for certiorari under Rule 65 may be filed:
1. Grave abuse of discretion amounting to lack or excess of jurisdiction;
2. Lack of jurisdiction; and
3. Excess of jurisdiction
Rule 65, Sec. 1 requires grave abuse of discretion. A simple abuse of discretion will not be enough to be a ground
for Rule 65 to apply.

Q: Under a Rule 45 petition, may the petition from the CA to the SC raise questions of fact or questions of
law?
A: Under Rule 45, only questions of law may be raised. Appeal by certiorari to the SC cannot include questions
of fact.
Note: although there may be instances that the SC entertains questions of fact, the question categorically speaks
of Rule 45 and thus, the answer was confined on the specific provisions under the said Rule.

Q: [Intervention] The court in an action between the original parties (the plaintiff and the defendant)
already made a judgment against the defendant. There was no appeal, thus, it became final and executory.
Now, the plaintiff filed a motion for issuance of writ of execution. With that motion for execution, the court
has no alternative because it is a matter of right on the part of the prevailing party. So, a writ of execution
has been issued. The sheriff was implementing the writ of execution by levying the properties of the
defendant. Here comes C, claiming that all the properties that the defendant owns are actually his. He files
a motion for intervention before the court. At that point, if you are the judge, will you grant the motion for
intervention?
A: No because there is already final judgment. Intervention should be done as early as possible – meaning, at an
early stage of litigation – because as it progresses and reach a point where intervention cannot be allowed, it can
only unduly delay the case. In the case at bar, there is already a writ of execution and the execution is already in
process.

[Rule 36. Section 2] Entry of judgments and final orders. — If no appeal or motion for new trial or reconsideration
is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk
in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the
date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed
by the clerk, within a certificate that such judgment or final order has become final and executory.

Q: The plaintiff who prevails in the suit, files a motion for execution on the 9 th year after the entry of
judgment. Is that possible?
A: No. The enforcement of the judgment by way of motion for execution may be done within the period of 5
years.

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Q: How do you enforce a final judgement after the lapse of 5 years?
A: File an action for revival of judgment within 10 years after the 5 years had lapsed from the date of final
judgment.

Q: From a decision of NLRC, may the party against whom the commission rendered a judgment avail the
remedy under Rule 43 which is a petition for review to the CA?
A: No. Rule 43, Sec. 2 states that Rule 43 shall not apply to judgments or final orders issued under the Labor
Code of the Philippines. The proper remedy would be to file a petition for certiorari under Rule 65.
Read: St. Martin Funeral Case

Rule 38
Rule 37 Rule 47
Relief from Judgments,
Motion for New Trial Annulment of
Orders, or Other
or Reconsiderations Judgment
Proceedings
FAME
Common Ground (fraud, accident, mistake, excusable negligence)
Fraud

Q: Which Court (RTC, CA or SC) that has exclusive jurisdiction to entertain actions for annulment?
A: Court of Appeals.

[Rule 39. Section 13] Property exempt from execution. — Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt from execution:
(a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land
necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may
select necessarily used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment
obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred
thousand pesos;
(f) Provisions for individual or family use sufficient for four months;
(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a
fisherman and by the lawful use of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four
months preceding the levy as are necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;

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(l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity
from the Government;
(m) Properties specially exempted by law.
But no article or species of property mentioned in this section shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.

Q: Here comes a sheriff with a writ of execution, levying the property of the defendant debtor-mortgagor
that has already been foreclosed. The defendant says “No, you cannot execute this because this is my family
home.” However, the said family home, or the property levied upon, has been the subject of a mortgage
with a bank. A loan was obtained from the bank to build the house and that was used as a security mortgage
which was later on foreclosed by the bank. Is the defendant right in refusing the levy of the house and lot
that has been mortgaged to the bank?
A: No, the defendant is wrong. The last paragraph of Rule 39, Sec 13 states that “no article or species of property
mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon
a judgment of foreclosure of a mortgage thereon.”

Q: T/F. An action for forcible entry or unlawful detainer is exclusively cognizable by the RTC and subject
to the rules of summary procedures.
A: False. The jurisdiction over these cases lies within the MTC.

Q: T/F. The period of 15 days to appeal for judgment of the RTC to the CA may be extended by at least 15
days.
A: False. The period to appeal in ordinary appeals can never be extended.
Note: The extension of another 15 days will be under Rule 42 (Petition for Review from the Regional Trial Courts
to the Court of Appeals). But in ordinary appeals, it’s only 15 days. The reason is that, the judgment is already
final and executory after the lapse of 15 days. Moreover, in appeal by certiorari under Rule 45, the original 15
days may be extended by another 30 days.

Outline of the reglementary periods within which to file appeals and the extensions allowed
Governing
Period to Appeal Extension Allowed
Rule
Rule 40 and Notice of appeal within 15 days from notice Period to file notice of appeal is non-
Rule 41 of judgment or of the denial of the appellant’s extendible.
MR/MNT
Reason: It is very simple to prepare a notice
When a record on appeal is required – to appeal.
within 30 days from notice of judgment or of
Period to file a record on appeal may be
the denial of the appellant’s MR/MNT
extended provided the motion for extension
Habeas Corpus – notice of appeal is filed thereof is filed within the original 30 day
within 48 hours from notice of judgment or period.
denial of MR/MNT.

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 Reason: Preparation of the record on appeal
may take time for it may require compilation
of voluminous records.
Rule 42 Petition for review – within 15 days from May be extended for 15 days upon proper
notice of the decision sought to be reviewed or motion and the payment of the full amount of
of denial of petitioner’s MR/MNT. the docket and other lawful fees and deposit
for costs before the expiration of the original
15 day period. No further extension shall be
granted except for the most compelling
reasons and in no case to exceed 15 days.
Rule 45 Petition for review on certiorari – within 15 On motion duly filed and served, with full
days from notice of the award, judgment, final payment of the docket and other lawful fees
order or resolution, or from the date of its last and the deposit for costs before the expiration
publication or the denial of the petitioner’s of the original 15 day period, the SC may for
MR/MNT justifiable reasons grant an extension of thirty
(30) days only within which to file the petition.

Q: May the court, after the judgment has become final and executory, issue a writ of execution without any
motion from the prevailing party.

A: No. A motion is required before the court may issue a writ of execution.

Note: It is compellable by mandamus if the court does not issue a writ of execution after the prevailing party has
filed a motion for execution. This is because the issuance of a writ of execution is a matter of right of the prevailing
party.

Q: May a motion to dismiss filed by the defendant based on improper venue be favorably acted upon by
the court?

A: No. A motion to dismiss may be only acted upon by the Court within four grounds: (1) lack of jurisdiction
over the subject matter; (2) litis pendentia; (3) res judicata; and (4) prescription. Improper venue is not one of the
grounds.

[Rule 15, Section 13] Dismissal with prejudice. — Subject to the right of appeal, an order granting a motion to
dismiss or an affirmative defense that the cause of action is barred by a prior judgment or by the statute of
limitations; that the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or
otherwise extinguished; or that the claim on which the action is founded is unenforceable under the provisions of
the statute of frauds, shall bar the refiling of the same action or claim. (5, R16)

Q: If a motion to dismiss is filed or even an affirmative defense is raised on the ground that the complaint
states no cause of action, will the dismissal of the complaint be with prejudice?

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A: No. Dismissal based on lack of cause of action is not one of the grounds that causes a dismissal to be with
prejudice.

Q: T/F. When a party is served with a written request of admission, he is under no obligation to answer
such request by specifically denying the matters in the request under oath it being inconsequential.

A: False. If the party served with a written request for admission does not answer the request of admission, it will
result to implied admission of the facts of the subject matter of the request.

Note: Go back to request for admission (Rule 26) and the consequences discussed in Rule 29.

Q: Assuming that the property levied upon by the sheriff is sold on auction and the sheriff issues a
Certificate of Sale and the party who won the bid, may the defendant who used to own the property levied
upon which was eventually sold in that auction exercise an equity of redemption?

A: No. The debtor does not have an equity of redemption but a right of redemption.

Note: Equity of redemption is a judicial foreclosure while right of redemption is a right in ordinary sale.

DISTINCTIONS BETWEEN ORDINARY SALE AND SALE IN JUDICIAL FORECLOSURE OF

MORTGAGE

Ordinary Sale on Execution (Rule 39) Sale in Judicial Foreclosure of Mortgage (Rule 68)

As to confirmation of certificate of sale

Must be confirmed by the court in order to divest the

Need not be confirmed by the court. It is merely
rights in the property of the parties and to vest the
provisional.
rights in the purchaser.

As to existence of right of redemption

There is no right of redemption only equity of

Right of redemption exist when the subject matter of
redemption, except where the mortgagee is a bank or
execution is real property.
a banking institution.
As to how title is acquired

Title acquired after the expiration of the redemption Title acquired upon entry f the confirmation and
period when final deed of conveyance is executed. registration of the foreclosure sale.

Q: How long may a right of redemption be exercised?

A: 1 year.

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[Rule 29: Refusal to Comply with Modes of Discovery]

Section 2. Contempt of court. — If a party or other witness refuses to be sworn or refuses to answer any question
after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be
considered a contempt of that court.

Section 3. Other consequences. — If any party or an officer or managing agent of a party refuses to obey an order
made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to
produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to
permit entry upon land or other property or an order made under Rule 28 requiring him to submit to a physical or
mental examination, the court may make such orders in regard to the refusal as are just, and among others the
following:

(a) An order that the matters regarding which the questions were asked, or the character or description of the
thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other
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;
(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or
prohibiting him from introducing in evidence designated documents or things or items of testimony, or from
introducing evidence of physical or mental condition;
(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the
disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent
of a party for disobeying any of such orders except an order to submit to a physical or mental examination.
(3a)

Q: There is an action for annulment of marriage based on the alleged psychological incapacity of the
husband, the wife received from the court an order directing her to submit herself for mental and
psychological examination but the wife instead moved for a reconsideration of the order. The motion for
reconsideration is denied. If the wife, notwithstanding the denial, still refuses to undergo the examination.
Discuss the consequences.

A: The petition for action for annulment may be dismissed by the court by striking it out or the wife may be held
in contempt or both. (Review the consequences stated in Rule 29)

[Rule 33, Section 1] Demurrer to evidence. — After the plaintiff has completed the presentation of his or her
evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has
shown no right to relief. If his or her motion is denied, he or she shall have the right to present evidence. If the
motion is granted but on appeal the order of dismissal is reversed, he or she shall be deemed to have waived the
right to present evidence. (1a)

➢ The situation is very clear: after the presentation of evidence of the plaintiff and actually made an offer and if
the basis of the evidence, plaintiff is not entitled to any relief (meaning, plaintiff failed to prove his cause of
action), the remedy of the defendant is to file a demurrer to evidence.

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➢ Demurrer to evidence is in effect a motion to dismiss based on insufficiency of evidence of plaintiff’s
complaint.

➢ If demurrer to evidence is granted – what remedy is available for the plaintiff?

A: He may file for a motion for reconsideration
• If the motion for reconsideration is denied, he may appeal.

➢ If demurrer to evidence is denied – may the defendant appeal?

A: No. The remedy available to the defendant is to present his evidence, not to appeal.
• If the court decides against him and he appeals, whatever he raised in the demurrer may be the subject
of assignment of errors in his appeal.

➢ If demurrer is granted and on appeal, it is reversed (meaning, the CA found that the demurrer has no merit
and the plaintiff is entitled to the relief sought for), what are the consequences?
A: The defendant loses the right to present evidence. That is the risk involved in filing a demurrer to evidence.
However, if the defendant is sure, then demurrer to evidence is proper.

[Rule 9. Sec. 3(b)] Relief from order of default. — A party declared in default may at any time after notice thereof
and before judgment, file a motion under oath to set aside the order of default upon proper showing that his or
her failure to answer was due to fraud, accident, mistake or excusable negligence and that he or she has a
meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge
may impose in the interest of justice.

Q: What happens when a defendant is declared in default after the notice but before judgment? What is
his remedy?

A: File a motion to set aside the order of default.

Q: What is the basis to grant a motion to set aside the order of default?

A: FAME (fraud, accident, mistake and excusable neglect).

REMEDIES OF A PARTY WHO FAILS TO FILE AN ANSWER AND/OR IS DECLARED IN DEFAULT

• Before notice of order of default. File amotion to admit answer giving a justifiable cause for delay in the
filing answer. Where an answer has been filed belatedly but before the defendant is declared in default, the
court should admit the answer in order to resolve the case on the merits rather than on technicalities.

• After order of default but before judgment. File a motion under the oath to set aside the default order
upon proper showing that his failure o answer was due to fraud, accident, mistake or excusable negligence
and that he has a meritorious defense. (Rule 9, Sec. 3(b))

• After judgment but before it becomes final. File a m motion for new trial on the ground of FAME under
Rule 37. If the motion for new trial is denied, the defendant may appeal within 15 days from receipt of the
order denying the motion for new trial

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 • After judgment becomes final. File a petition for relief under Rule 38. If the defendant was improvidently
or wrongly declared in default he may move to set aside the judgment by way of a special civil action for
certiorari.

• After period to file a petition for relief has lapsed. File a petition for annulment of judgment based on
extrinsic fraud under Rule 47.
Source: Riguera, 2020

RTC has exclusive and appellate jurisdiction. See: RSE Notes pages 14 – 16

[Rule 41. Section 2] Modes of appeal. —

(a) Ordinary appeal. — The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the
exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the
judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and other cases of multiple or separate appeals where law on
these Rules so require. In such cases, the record on appeal shall be filed and served in like manner.

(b) Petition for review. — The appeal to the Court of Appeals in cases decided by the Regional Trial Court in
the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.

Q: What are the modes of appeal or review that may be availed of by a party against whom the judgment
has been rendered by the RTC?

A: It depends. If it exercises its original jurisdiction then it is ordinary appeal (Rule 41); if the RTC exercises its
appellate jurisdiction, it is a petition for review (Rule 42).

Rule 14: Summons

➢ Substituted service of summons (Sec 6)

• There must be a showing before a substituted service of summons may be resorted to that the defendant
cannot be served personally with summons after at least 3 attempts on 2 different dates. (3-2 Rule)

➢ Summons upon domestic private juridical entity or corporations (Sec. 12)

➢ List of officers of the domestic corporation to whom service of summons may be served upon.

• Counsel – understand who is a retained vs. an in-house counsel.

• In-house counsel = respectively, an employee of the corporation
• External / Retained counsel = independent counsel engaged by the corporation by way of a retainer
agreement.
• Q: Summons was served upon the external counsel, meaning, a retained counsel – who is not an
in-house counsel, is the summons validly served?

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 A: No. For a summons to be valid, it must be served to the in-house counsel and not the external /
retained counsel.

• Manager
• Q: Can there be a service of summons to the branch manager?
A: No. It should be to the general manager. (E.B. Villarosa & Partner Co., Ltd. v. Benito (1999))

• If service of summons cannot be made upon any of these officers, the next best bet is to look for the
secretary of these officers and serve the summons upon the him/her.
o If the secretary is not available, then service may be made upon the person who, in the office
of defendant corporation, customarily receives letters, communication, etc. upon the
corporation.

Revised Rules on Small Claims / Revised Rules on Summary Procedures

➢ Study the scope

➢ Usual question is about unlawful detainer or forcible entry
➢ The focus is on the prohibited pleadings and motions

[Rules on Small Claims]

Q: Is a third-party complaint allowed? Is a motion for new trial allowed? Is a motion for extension
of time to answer a complaint allowed?

A: No, in any of the three situations.

Q: What about permissive counterclaims? Are they allowed?

A: Yes.

[Rules on Summary Procedures]

Q: Motion for judgment in default in an unlawful detainer case. Rule on the motion.

A: The motion should be denied because a motion to declare the defendant in default is a prohibited
motion under rules in summary procedure.

Q: A judgment has been rendered in an unlawful detainer of forcible entry case; the defendant
therefore seeks advice from you. What should he do? May he file a motion for reconsideration and
post a supersedeas bond so he can stop the writ of execution because in unlawful detainer or
forcible entry case, judgment is immediately executory? How do you stop the execution? Can you
file under the Rules a motion for reconsideration and file a supersedeas bond?

A: No because a motion for reconsideration is a prohibited motion under the rules in summary
procedure.

Q: What should be filed then?

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 A: You file an appeal plus the posting of the supersedeas bond. That is how you can stop the
execution.

Injunction

➢ Understand the essence.

➢ When an action is filed and then seek relief to prevent the doing of acts or performance of acts which are
injurious to the petitioner / to the plaintiff
➢ Q: Conversely, if the acts are already done, can they still be enjoined?
A: No. it will be illogical to prevent something that is already done.
• Doctrine of Done Acts
• Injunction cannot lie there.
• The court should not issue a writ of preliminary injunction if the acts sought to be enjoined have
already been rendered.

Review:

Affirmative defenses

➢ Conducting a hearing
• The court may at its option set an option to set a hearing
• Is it compellable by a writ of mandamus for the court to hear an affirmative defense?
A: No. It is fully discretionary upon the court.
➢ Affirmative defenses that are also Grounds for motion to dismiss
➢ Kinds of Affirmative Defenses

There are instances where trial in the case is not necessary

➢ Judgment on the pleadings (Rule 34)

[Rule 34 Section 1] Where an answer fails to tender an issue, or otherwise admits the material allegations of
the adverse party's pleading, the court may; on motion of that party, direct judgment on such pleading.
However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material
facts alleged in the complaint shall always be proved.

➢ Summary judgment (Rule 35)

When there is no genuine issue as to any fact raised in the pleadings and what appears to be issues are actually
not genuine issues but are sham, false issues – then they may be uncovered by way of depositions, affidavits
or even admissions and a summary judgment may be rendered thereon. No trial is necessary except as to the
amount of damages.

➢ When the parties agree in writing of the facts, on the basis of which, the trial court may render a
judgment.

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➢ Dismissal due to fault of plaintiff (Rule 17, Sec 3)

This also supposedly puts an end to litigation without trial.

[Rule 17, Section 3] If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of
his or her evidence in chief on the complaint, or to prosecute his or her action for an unreasonable length of
time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion
of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute
his or her counterclaim in the same or in a separate action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise declared by the court. (3a)

• Actions / Complaint may be dismissed due to the fault of plaintiff:

(1) the plaintiff fails to appear on the date of the presentation of his or her evidence in chief on the
complaint
(2) the plaintiff fails to prosecute his or her action for an unreasonable length of time
(3) the plaintiff fails to comply with these Rules or any order of the court

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