University

of Santo Tomas
Faculty of Civil Law

REMEDIAL LAW


Questions Asked More Than Once
QuAMTO 2021





QuAMTO is a compilation of past bar questions with answers as suggested by the UPLC and other distinct
luminaries in the academe, and updated by the UST Academics Committee to fit for the 2021 Bar Exams.

Bar questions are arranged per topic in accordance with the bar syllabus released by the Supreme Court and
were selected based on their occurrence on past bar examinations from 1987 to 2019.



ACADEMICS COMMITTEE

MARIA FRANCES FAYE R. GUTIERREZ SECRETARY GENERAL

JOHN EDWARD F. FRONDA
ANGEL ISAH M. ROMERO
KIRBY ANNE C. RENIA EXECUTIVE COMMITTEE
KAREN ABBIE C. ASPIRAS
JOSE CHRISTIAN ANTHONY I. PINZON
NATHAN RAPHAEL D.L. AGUSTIN

MARIA FRANCES FAYE R. GUTIERREZ LAYOUT AND DESIGN

QuAMTO COMMITTEE MEMBERS

JOHN KRISTOFFER P. PEREDA
JAN MATTHEW V. TEVES




ATTY. KENNETH JAMES CARLO C. HIZON
ATTY. KING JAMES CARLO C. HIZON
ADVISERS

OUR DEEPEST APPRECIATION TO OUR

MENTORS AND INSPIRATION


JUSTICE ROBERTO A. ABAD ATTY. GREGORIO GERRY F. FERNANDEZ

JUSTICE MARIA CRISTINA J. CORNEJO (+) ATTY. BENIGNO G.PAR, JR.

JUSTICE MAGDANGAL DE LEON ATTY. CHRISTIAN G. VILLASIS

JUSTICE MYRA V. FERNANDEZ DEAN MA. SOLEDAD MAWIS

JUSTICE OSCAR C. HERRERA, JR. DEAN JOSE I. DELA RAMA, JR.

JUSTICE AMY L. JAVIER JUSTICE MARIA FILOMENA SINGH

JUSTICE ZENAIDA G. LAGUILLES JUDGE GENER M. GITO

JUSTICE GABRIEL T. ROBENIOL DEAN FERDINAND A. TAN

JUDGE PHILIP A. AGUINALDO ATTY. IAN JERNY E. DE LEON

JUDGE CESAR D. SANTAMARIA, SR. JUSTICE CARLITO B. CALPATURA

JUSTICE RONALD B. MORENO JUDGE LEILANI MARIE DACANAY-
GRIMARES
JUDGE MYRA B. QUIAMBAO
JUDGE KATLYN ANNE C. AGUILAR-BILGERA
DEAN LOPE E. FEBLE
DEAN REY OLIVER S. ALEJANDRINO
DEAN CARLOS M. ORTEGA
JUDGE JOSE LORENZO R. DELA ROSA
DEAN WILLARD B. RIANO

For being our guideposts in understanding
the intricate sphere of Remedial Law.
-Academics Committee 2021





 QuAMTO (1987-2019)
REMEDIAL LAW QuAMTO special and important reasons therefor. (Montes v.
Court of Appeals, G.R. No. 143797, 4 May 2006)

GENERAL PRINCIPLES (b) What is the Harmless Error Rule in relation
to appeals?


A: The harmless error rule in relation to appeals
CONCEPT OF REMEDIAL LAW
provides that the appellate court should not reverse

a judgment as a result of any error or defect which
Q: How shall the Rules of Court be construed? does not affect the substantial rights of the parties.
(1998 Bar) (Sec. 6, Rule 51; Bersamin, Appeal & Review in the

Philippines 362)
A: The Rules of Court should be liberally

constructed in order to promote their objective of
(c) When does a public prosecutor conduct an
securing a just, speedy and inexpensive disposition
inquest instead of a preliminary
of every action and proceeding. (Sec. 6, Rule 1)
investigation?


Q: What is the concept of Remedial Law? A: Under the Rules of Criminal Procedure, the public
Distinguish between substantive law and
prosecutor conducts an inquest instead of a
remedial law. (2006 Bar)
preliminary investigation when a person is lawfully

arrested without a warrant involving an offense
A: Remedial law is a branch of public law which
which requires a preliminary investigation (Sec. 6,
prescribes the procedural rules to be observed in
Rule 112).
litigations, whether civil, criminal, or

administrative, and in special proceedings, as well
Doctrine of non-interference or Doctrine of
as the remedies or reliefs available in each case.
judicial stability


Substantive law is that part of the law which creates,
Q: In rendering a decision, should a court take
defines and regulates rights and obligations, the
into consideration the possible effect of its
violation of which gives rise to a cause of action. On verdict upon the political stability and economic
the other hand, remedial law prescribes the method welfare of the nation? (2003 Bar)
of enforcing rights or obtaining redress for their

invasion. (cf. Bustos v. Lucero, 81 Phil. 540, 650
A: No, because a court is required to take into
[1948])
consideration only the legal issues and the evidence

admitted in the case. The political stability and
Q: How are remedial laws implemented in our
economic welfare of the nation are extraneous to
system of government? (2006 Bar)
the case. They can have persuasive influence, but

they are not the main factors that should be
A: Remedial Laws are implemented in our system of
considered in deciding a case. A decision should be
government through the judicial system, including
based on the law, rules of procedure, justice and
the prosecutorial service, our courts, and quasi-
equity. However, in exceptional cases the court may
judicial agencies.
consider the political stability and economic welfare
of the nation when these are capable of being taken
Q: Give brief answers to the following: (2017 into judicial notice of and are relevant to the case.
Bar)


JURISDICTION
(a) What is the doctrine of hierarchy of courts?


Supreme Court
A: The doctrine of hierarchy of courts provides that

where there is a concurrence of jurisdiction by Q: Distinguish Questions of Law from Questions
courts over an action or proceeding, there is an
of Fact. (2004 Bar)
ordained sequence of recourse to such courts

beginning from the lowest to the highest. A direct
A: A question of law exists when the doubt or
invocation of the Supreme Court’s original
difference arises as to what the law is on a certain
jurisdiction should be allowed only when there are
set of facts, while a question of fact is when the

1
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
doubt or difference arises as to the truth or a. In annulment of judgment under Secs. 5 and 6,
falsehood of the alleged facts. (Ramos v. Pepsi-Cola Rule 47. Should the Court of Appeals find prima
Bottling Co. of the Phil., G.R. No. L-22533, February 9, facie merit in the petition, the same shall be
1967) given due course and summons shall be served
on the respondent, after which trial will follow,
Q: Goodfeather Corporation, through its where the procedure in ordinary civil cases
President, Al Pakino, filed with the Regional shall be observed;
Trial Court (RTC) a complaint for specific b. When a motion for new trial is granted by the
performance against Robert White. Instead of Court of Appeals, the procedure in the new trial
filing an answer to the complaint, Robert White shall be the same as that granted by a Regional
filed a motion to dismiss the complaint on the Trial Court (Sec. 4, Rule 53);
ground of lack of the appropriate board c. A petition for habeas corpus shall be set for
resolution from the Board of Directors of Good hearing (Sec. 12, Rule 102);
feather Corporation to show the authority of Al d. In a petition for the writs of amparo and habeas
Pakino to represent the corporation and file the data, a hearing can be conducted;
complaint in its behalf. The RTC granted the e. Under Section 12, Rule 124 of the Rules of
motion to dismiss and, accordingly it ordered Criminal Procedure, the Court of Appeals has
the dismissal of the complaint. Al Pakino filed a the power to try cases and conduct hearings,
motion for reconsideration which the RTC receive evidence and perform any and all acts
denied. As nothing more could be done by Al necessary to resolve factual issues cases which
Pakino before the RTC, he filed an appeal before fall within its original and appellate
the Court of Appeals (CA). Robert White moved jurisdiction;
for dismissal of the appeal in the ground that the f. The Court of Appeals can grant a new trial based
same involved purely a question of law and on the ground of newly discovered evidence
should have been filed with the Supreme Court (Sec. 14, Rule 124);
(SC). However, Al Pakino claimed that the g. The Court of Appeals, under Section 6, Rule 46,
appeal involved mixed questions of fact and law whenever necessary to resolve factual issues,
because there must be a factual determination may conduct hearing thereon or delegate the
if, indeed, Al Pakino was duly authorized by reception of the evidence of such issues to any
Goodfeather Corporation to file the complaint. of its members or to an appropriate agency or
Whose position is correct? Explain. (2014 Bar) office.

A: Al Pakino is correct in claiming that the appeal Q: Does the Court of Appeals have jurisdiction to
involved mixed questions of fact and law. There is a review the Decisions in criminal and
question of law when the doubt or difference arises administrative cases of the Ombudsman? (2006
as to what the law is on a certain state of facts. On Bar)
the other hand, there is a question of fact when the
doubt or difference arises as to the truth or A: Yes, but only in administrative cases. In
falsehood of the alleged facts. (Mirant Philippines administrative and disciplinary cases, appeals from
Corporation v. Sario, G.R. No. 197598, November 21, the Ombudsman must be taken to the Court of
2012) Since the complaint was dismissed due to the Appeals under Rule 43. Conversely, the Supreme
alleged lack of appropriate board resolution from Court has exclusive appellate jurisdiction over
the Board of Directors of Goodfeather Corporation, decisions of the Ombudsman in criminal cases.
the appeal will necessarily involve a factual (Lanting v. Ombudsman, G.R. No. 141426, May 6,
determination of the authority to file the Complaint 2005; Fabian v. Desierto, G.R. No. 129742, September
for the said Corporation. Hence, the appeal before 16, 1998; Sec. 14, RA 6770)
the Court of Appeals is correct.
Court of Tax Appeals
Court of Appeals
Q: Mark filed with the Bureau of Internal
Q: Give at least three instances where the Court Revenue a complaint for refund of taxes paid,
of Appeals may act as a trial court. (2008 Bar) but it was not acted upon. So, he filed a similar
complaint with the Court of Tax Appeals raffled
A: to one of its Divisions. Mark’s complaint was
dismissed. Thus, he filed with the Court of

2

 QuAMTO (1987-2019)
Appeals a petition for certiorari under Rule 65. indicted together with the public officer. Indeed, it
Does the Court of Appeals have jurisdiction over is not necessary to join all alleged co-conspirators in
Mark’s petition? (2006 Bar) an indictment for conspiracy. (People v. Go, G.R. No.
168539, March 25, 2014)
A: No. The procedure is governed by Sec. 11 of R.A.
9282, which provides that decisions of a division of Regional Trial Courts
the Court of Tax Appeals must be appealed to the
Court of Tax Appeals en banc. Further, the CTA now Q: Santa filed against Era in the RTC of Quezon
has the same rank as the Court of Appeals and is no City an action for specific performance praying
longer considered as a quasi-judicial agency. It is for the delivery of a parcel of land subject of
likewise provided in the said law that the decisions their contract of sale. Unknown to the parties,
of the CTA en banc are congnizable by the Supreme the case was inadvertently raffled to an RTC
Court under Rule 45 of the 1997 Rules of Civil designated as a special commercial court. Later,
Procedure. the RTC rendered judgment adverse to Era, who,
upon realizing that the trial court was not a
Sandiganbayan regular RTC, approaches you and wants you to
file a petition to have the judgment annulled for
Q: The Ombudsman, after conducting the lack of jurisdiction. What advice would you give
requisite preliminary investigation, found to Era? Explain your answer. (2017 Bar)
probable cause to charge Gov. Matigas in
conspiracy with Carpintero, a private A: The advice I would give to Era is that the petition
individual, for violating Section 3(e) of Republic for annulment of judgment on lack of jurisdiction
Act (RA) No. 3019 (Anti-Graft and Corrupt will not prosper. It has been held that a special
Practices Act, as amended). Before the commercial court is still a court of general
information could be filed with the jurisdiction and can hear and try a non-commercial
Sandiganbayan, Gov. Matigas was killed in an case. (Concorde Condominium Inc. v. Baculio, Gr.
ambush. This, notwithstanding, an information 203678, February 17, 2016)
was filed against Gov. Matigas and Carpintero.
Hence, the special commercial court has jurisdiction
At the Sandiganbayan, Carpintero, through to try and decide the action for specific performance
counsel, filed a Motion to Quash the information, and to render a judgment therein.
on the ground of lack of jurisdiction of the
Sandiganbayan, arguing that with the death of Q: Hades, an American citizen, through a dating
Gov. Matigas, there is no public officer charged website, got acquainted with Persephone, a
in the information. Filipina. Hades came to the Philippines and
proceeded to Baguio City where Persephone
Is the Motion to Quash legally tenable? (2014 resides. Hades and Persephone contracted
Bar) marriage, solemnized by the Metropolitan Trial
Court judge of Makati City. After the wedding,
A: No. While it is true that by reason of the death of Hades flew back to California, United States of
Gov. Matigas, there is no longer any public officer America, to wind up his business affairs. On his
with whom he can be charge for violation of R.A. return to the Philippines, Hades discovered that
3019, it does not mean, however, that the allegation Persephone had an illicit affair with Phanes.
of conspiracy between them can no longer be Immediately, Hades returned to the United
proved or that their alleged conspiracy is already States and was able to obtain a valid divorce
expunged. The only thing extinguished by the death decree from the Superior Court of the County of
of Gov. Matigas is his criminal liability. His death did San Mateo, California, a court of competent
not extinguish the crime nor did it remove the basis jurisdiction against Persephone. Hades desires
of the charge of conspiracy between him and to marry Hestia, also a Filipina, whom he met at
Carpintero. The requirement before a private Baccus Grill in Pasay City. (2015 Bar)
person may be indicted for violation of Section 3(g)
of R.A. 3019, among others, is that such private a. As Hades' lawyer, what petition should you
person must be alleged to have acted in conspiracy file in order that your client can avoid
with a public officer. The law, however, does not prosecution for bigamy if he desires to marry
require that such person must, in all instances, be Hestia?

3
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
A: As Hade’s lawyer, I would file a petition for Romeo. The Family Court issued a 30-day TPO
cancellation of entry of marriage under Rule 108 against Romeo. A day before the expiration of
with prayer for recognition of foreign divorce the TPO, Juliet filed a motion for extension.
judgment. In a case involving similar facts, the Romeo in his opposition raised, among others,
Supreme Court held that a foreign divorce decree the constitutionality of R.A. No. 9262 (The VAWC
must first be recognized before it can be given effect. Law) arguing that the law authorizing the
The Supreme Court stated that the recognition may issuance of a TPO violates the equal protection
be prayed for in the petition for cancellation of the and due process clauses of the 1987
marriage entry under Rule 108. (Corpuz v. Sto. Constitution. The Family Court judge, in
Tomas, G.R. No. 186571, August 11, 2010) granting the motion for extension of the TPO,
declined to rule on the constitutionality of R.A.
b. In what court should you file the petition? No. 9262. The Family Court judge reasoned that
Family Courts are without jurisdiction to pass
A: I would file the petition in the Regional Trial upon constitutional issues, being a special court
Court of Makati City, where the corresponding civil of limited jurisdiction and R.A. No. 8369, the law
registry is located. (Sec 1, Rule 108) creating the Family Courts, does not provide for
such jurisdiction. Is the Family Court judge
c. What is the essential requisite that you must correct when he declined to resolve the
comply with for the purpose of establishing constitutionality of R.A. No. 9262? (2015 Bar)
jurisdictional facts before the court can hear
the petition? A: No, the Family Court Judge is not correct when it
declined to resolve the constitutionality of R.A. No.
A: For the Rule 108 petition, the jurisdictional facts 9262.
are the following:
In Garcia v. Drilon, the Supreme Court held that the
a. Joinder of the local civil registrar and all Family Courts have authority and jurisdiction to
persons who have or claim any interest which resolve the constitutionality of a statute. In spite of
would be affected by petition. its designation as a family court, the RTC remains to
b. Notice of the order of hearing to the persons possess the authority as a court of general original
named in the petition. jurisdiction to pass upon all kinds of cases whether
c. Publication of the order of hearing in a civil, criminal, special proceedings, land
newspaper of general circulation in the registration, guardianship, naturalization,
province. admiralty or insolvency. This authority is embraced
in the general definition of judicial power to
Family courts determine the valid and binding laws in conformity
with the fundamental law. (G.R. No. 179267, June 25,
Q: How should the records of child and family 2013)
cases in the Family Courts or RTC designated by
the Supreme Court to handle Family Court cases Metropolitan Trial Courts / Municipal Trial
be treated and dealt with? Under what Courts
conditions may the identity of parties in child
and family cases be divulged? (2001 Bar) Q: Estrella was the registered owner of a huge
parcel of land located in a remote part of their
A: The records of child and family cases in the barrio in Benguet. However, when she visited
Family Courts or Regional Trial Courts designated the property after she took a long vacation
by the Supreme Court to handle Family Court cases abroad, she was surprised to see that her
shall be dealt with utmost confidentiality and shall childhood friend, John, had established a
not be divulged unless necessary and with authority vacation house on her property. Both Estrella
of the judge. (Sec. 12, Family Courts Act of 1997) and John were residents of the same barangay.

Q: Juliet invoking the provisions of the Rule on To recover possession, Estrella filed a complaint
Violence Against Women and their Children for ejectment with the Municipal Trial Court
filed with the RTC designated as a Family Court (MTC), alleging that she is the true owner of the
a petition for issuance of a Temporary land as evidenced by her certificate of title and
Protection Order (TPO) against her husband, tax declaration which showed the assessed

4

 QuAMTO (1987-2019)
value of the property as P21,000.00. On the irrespective of the amounts involved. (Sec. 22, B.P.
other hand, John refuted Estrella’s claim of 129)
ownership and submitted in evidence a Deed of
Absolute Sale between him and Estrella. After Quasi-judicial Courts
the filing of John’s answer, the MTC observed
that the real issue was one of ownership and not Q: What court has jurisdiction over an action for
of possession. Hence, the MTC dismissed the specific performance filed by a subdivision
complaint for lack of jurisdiction. homeowner against a subdivision developer?
Explain. (2002 Bar)
On appeal by Estrella to the Regional Trial Court
(RTC), a full-blown trial was conducted as if the A: An action for specific performance by a
case was originally filed with it. The RTC subdivision homeowner against a subdivision
reasoned that based on the assessed value of the developer is within the jurisdiction of the Housing
property, it was the court of proper jurisdiction. and Land Use Regulatory Board (HLURB). Sec. 1 of
Eventually, the RTC rendered a judgment P.D. 1344 provides that the HLURB has jurisdiction
declaring John as the owner of the land and, over cases involving specific performance of
hence, entitled to the possession thereof. contractual and statutory obligations filed by
buyers of subdivision lots and condominium units
(a) Was the MTC correct in dismissing the against the owner, developer, dealer, broker or
complaint for lack of jurisdiction? Why or salesman. (Manila Bankers Life Insurance Corp. v.
why not? Eddy Ng Kok Wei, G.R. No. 139791, December 12,
2003; Kakilala v. Faraon, G.R. No. 143233, October 18,
A: No. It is well settled that jurisdiction is 2004; Sec. 1, PD 1344)
determined by the allegations contained in the
complaint. The contention of defendant in his TOTALITY RULE
Motion to Dismiss has nothing to do in the
determination of jurisdiction. Q: Lender extended to Borrower a P100,000.00
loan covered by a promissory note. Later,
Relative thereto, the MTCs has exclusive original Borrower obtained another P100,000.00 loan
jurisdiction over cases of forcible entry and again covered by a promissory note. Still later,
unlawful detainer. (Section 33, B.P. 129) Hence, the Borrower obtained a P300,000.00 loan secured
MTC is not correct in dismissing the complaint for by a real estate mortgage on his land valued at
lack of jurisdiction. At any rate, the rules allow P500,000.00. Borrower defaulted on his
provisional determination of ownership in payments when the loans matured. Despite
ejectment cases when the defendant raises the demand to pay the P500,000.00 loan, Borrower
defense of ownership in his pleadings and the refused to pay. Lender, applying the totality
question of possession cannot be resolved without rule, filed against Borrower with the Regional
deciding the issue of ownership. (Sec. 16, Rule 70) Trial Court (RTC) of Manila, a collection suit for
Accordingly, the inferior courts have jurisdiction to P500,000.00. Did Lender correctly apply the
resolve questions of ownership whenever it is totality rule and the rule on joinder of causes of
necessary to decide the question of possession in an action? (2015 Bar)
ejectment case. (Serreno v. Spouses Gutierrez, G.R.
No. 162366, November 10, 2006) A: Yes. The Lender correctly applied the totality rule
and the rule on joinder of causes of action because
(b) Was the RTC correct in ruling that based on where the claims in all the causes of action are
the assessed value of the property, the case principally for recovery of sum of money, the
was within its original jurisdiction and, aggregate amount of the claim shall be the test of
hence, it may conduct a full-blown trial of jurisdiction. (Section 5[d], Rule 2)
the appealed case as if it was originally filed
with it? Why or why not? (2014 Bar) Here, the total amount of the claim is P500,000.00.
Hence, the Regional Trial Court (RTC) of Manila has
A: No. It is settled that forcible entry and unlawful jurisdiction over the suit. At any rate, it is
detainer cases are within the exclusive original immaterial that one of the loans is secured by a real
jurisdiction of the MTC. Moreover, all cases decided estate mortgage because the Lender opted to file a
by the MTC are generally appealable to the RTC

5
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
collection of sum of money instead of foreclosure of property. Galaxy filed a Motion to Dismiss on the
the said mortgage. ground of improper venue alleging that the
complaint should be filed with the RTC of Makati
NOTE: R.A. No. 11576 was enacted in 2021 since the complaint involves the ownership and
increasing the jurisdiction of the RTCs in all actions possession of Eduardo’s lot. Resolve the motion
and maritime jurisdiction where the demand or with reasons (2016 Bar).
claims exceeds P2,000,000.
A: The motion to dismiss should be granted. An
Q: At the trial, Borrower's lawyer, while cross- action for nullification of the mortgage documents
examining Lender, successfully elicited an and foreclosure of the mortgaged property is a real
admission from the latter that the two action that affects the title to the property; thus,
promissory notes have been paid. Thereafter, venue of the real action is before the court having
Borrower's lawyer filed a motion to dismiss the jurisdiction over the territory in which the property
case on the ground that as proven only lies. (Chua v. Total Office Products and Services, G.R.
P300,000.00 was the amount due to Lender and 152808, September 30, 2005)
which claim is within the exclusive original
jurisdiction of the Metropolitan Trial Court. He Being a real action, it shall be commenced and tried
further argued that lack of jurisdiction over the in the proper court which has jurisdiction over the
subject matter can be raised at any stage of the area where the real property involved, or a portion
proceedings. Should the court dismiss the case? thereof, is situated. (Sec. 1, Rule 4) Consequently, the
(2015 Bar) complaint should be filed in the RTC of Makati
where the mortgaged property is situated.
A: No. The court should not dismiss the case. What
determines the jurisdiction of the court is the nature ALTERNATIVE ANSWER:
of the action pleaded as appearing from the
allegations in the complaint. The averments therein The motion to dismiss should be denied. An action
and the character of the relief sought are the ones to for the annulment of a real estate mortgage is a
be consulted. (Navida v. Hon. Teodoro A. Dizon, Jr., personal action, which may be commenced and
G.R. No. 125078, May 30, 2011) tried where the defendant or any of the defendants
resides or may be found, or where the plaintiff or
Accordingly, even if the defendant is able to prove in any of the plaintiffs resides or may be found, at the
the course of the trial that a lesser amount is due, election of plaintiff (Section 2, Rule 4, Rules of Court;
the court does not lose jurisdiction and a dismissal Chua v. Total Office Products & Services, Sept. 30,
of the case is not in order. (Paadlan v. Dinglasan, G.R. 2005; Orbeta v. Orbeta, G.R. No. 166837, Nov. 27,
No. 180321, March 20, 2013) 2006). Since the plaintiff resides in Manila, the
complaint was properly filed in RTC of Manila.

CIVIL PROCEDURE CAUSE OF ACTION

Q: Distinguish Cause of Action from Action.
PERSONAL ACTIONS AND REAL ACTIONS (1997, 1999 Bar)

Q: What do you mean by a) real actions; and b) A: An action is one by which a party sues another for
personal actions? (2006 Bar) the enforcement or protection of a right, or the
prevention or redress of a wrong (Sec. 3[a], Rule 2).
A: Real actions are actions affecting title to or A cause of action is the act or omission by which a
possession of real property or an interest therein. party violates a right of another (Sec. 2, Rule 2).
All other actions are personal actions. (Sec. 1, Rule 4) Every action must be based on a cause of action.
(Sec. 1, Rule 2)
Q: Eduardo, a resident of the City of Manila, filed
before the Regional Trial Court (RTC) of Manila Q: A bought a Volvo Sedan from ABC Cars for P
a complaint for the annulment of a Deed of Real 5.0M. ABC Cars, before delivering to A, had the
Estate Mortgage he signed in favor of Galaxy car rust proofed and tinted by XYZ Detailing.
Bank (Galaxy), and the consequent foreclosure When delivered to A, the car’s upholstery was
and auction sale on his mortgaged Makati found to be damaged. ABC Cars and XYZ

6

 QuAMTO (1987-2019)
Detailing both deny any liability. Who can A sue Corporation to compel them to interplead. He
and on what cause(s) of action? Explain. (2012 alleged therein that the three corporations
Bar) claimed title and right of possession over the
goods deposited in his warehouse and that he
A: A can file an action for specific performance and was uncertain which of them was entitled to the
damages against ABC Cars since the damage to the goods. After due proceedings, judgment was
Volvo sedan’s upholstery was caused before rendered by the court declaring that X
delivery of the same to A, and therefore prior to the Corporation was entitled to the goods. The
transfer of ownership to the latter (Article 1477, decision became final and executory. Raphael
NCC). Under Article 1170 of the Civil Code, those filed a complaint against X Corporation for the
who contravene the tenor of the obligation are liable payment of P100,000.00 for storage charges and
for damages. Hence, an action for specific other advances for the goods. X Corporation
performance against ABC Corporation to deliver the filed a motion to dismiss the complaint on the
agreed Volvo Sedan in the contract free form any ground of res judicata. X Corporation alleged the
damage or defects, with corresponding damages Raphael should have incorporated in his
will lie against ABC Cars. complaint for interpleader his claim for storage
fees and advances that for his failure he was
Splitting a single cause of action and its effects barred from interposing his claim. Raphael
replied that he could not have claimed storage
Q: What is the rule against splitting a cause of fees and other advances in his complaint for
action and its effect on the respective rights of interpleader because he was not yet certain as
the parties for failure to comply with the same? to who was liable therefor. Resolve the motion
(1999 Bar) with reasons. (2005 Bar)

A: The rule against splitting a cause of action and its A: The motion to dismiss should be granted.
effect are that if two or more suits are instituted on Raphael should have incorporated in his complaint
the basis of the same cause of action, the filing of one for interpleader his claim for storage fees and
or a judgment upon the merits in any one is advances, the amounts of which were obviously
available as a ground for the dismissal of the others. determinable at the time of the filing of the
(Sec. 4, Rule 2) complaint. They are part of Raphael’s cause of action
which he may not split. Hence, when the
Q: A purchased a lot from B for P1,500,000.00. warehouseman asks the court to ascertain who
He gave a down payment of P500,000.00, signed among the defendants are entitled to the goods, he
a promissory note payable thirty days after date, also has the right to ask who should pay for the
and as a security for the settlement of the storage fees and other related expenses. The filing
obligation, mortgaged the same lot to B. When of the interpleader is available as a ground for
the note fell due and A failed to pay, B dismissal for the second case. (Sec. 4, Rule 2). It is
commenced suit to recover from A the balance akin to a compulsory counterclaim which, if not set
of P1,000,000.00. After securing a favorable up, shall be barred. (Sec. 2, Rule 9; Arreza v. Diaz, G.R.
judgment on his claim, B brought another action No. 133113, August 30, 2001)
against A before the same court to foreclose the
mortgage. A now files a motion to dismiss the Q: Rolando filed a petition for declaration of the
second action on the ground of bar by prior nullity of his marriage to Carmela because of
judgment. Rule on the Motion. (1999 Bar) alleged psychological incapacity of the latter.
After trial, the court rendered judgment
A: The motion to dismiss should be granted. When dismissing the petition on the ground that
B commenced suit to collect on the promissory note, Rolando failed to prove the psychological
he waived his right to foreclose the mortgage. B split incapacity of his wife. The judgment having
his cause of action. Under Sec. 4, Rule 2, when a become final, Rolando filed another petition,
cause of action is split, the filing of one or a judgment this time on the ground that his marriage to
upon the merits in any one is available as a ground Carmela had been celebrated without a license.
for the dismissal of the others. Is the second action barred by the judgment in
the first? Why? (2002 Bar)
Q: Raphael, a warehouseman, filed a complaint
against V Corporation, X Corporation and Y

7
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
A: No. The second action is not barred by the Instead of filing an answer, Mr. D moved to
judgment in the first because they have different dismiss the complaint on the ground of lack of
causes of action. The first is for annulment of cause of action. In opposition, Mr. C argued that
marriage on the ground of psychological incapacity lack of cause of action is not a ground for a
under Article 36 of the Family Code, while the motion to dismiss as the ground provided under
second is for the declaration of nullity of the Section 1(g), Rule 16 of the Rules of Court is
marriage in view of the absence of a basic failure to state a cause of action.
requirement, which is a marriage license (Arts. 9 &
35[3], FC). They are different causes of action Distinguish the concepts of lack of cause of
because the evidence required to prove them are action and failure to state a cause of action.
not the same. (Pagsisihan v. CA, G.R. No. L-34885, Based on this distinction, is Mr. C's opposition
January 28, 1980) tenable? Explain. (2019 Bar)

Q: Elise obtained a loan of P3 Million from A: The two (2) grounds are distinguished as follows:
Merchant Bank. Aside from executing a
promissory note in favor of Merchant Bank, she i. Failure to state a cause of action refers to the
executed a deed of real estate mortgage over her insufficiency of the allegations in the
house and lot as security for her obligation. The pleading.
loan fell due but remained unpaid; hence,
Merchant Bank filed an action against Elise to While lack of cause of action is the
foreclose the real estate mortgage. A month insufficiency of the factual basis for the
after, and while the foreclosure suit was action.
pending, Merchant Bank also filed an action to
recover the principal sum of P3 Million against ii. Dismissal for failure to state a cause of action
Elise based on the same promissory note may be raised as affirmative defense in the
previously executed by the latter. In opposing defendant’s answer.
the motion of Elise to dismiss the second action
on the ground of splitting of a single cause of While dismissal for lack of cause of action
action, Merchant Bank argued that the ground may be raised at any time after the questions
relied upon by Elise was devoid of any legal of fact have been resolved on the basis of
basis considering that the two actions were stipulations, admissions or evidence
based on separate contracts, namely, the presented by the plaintiff through a demurrer
contract of loan evidenced by the promissory to evidence under Rule 33.
note, and the deed of real estate mortgage. Is
there a splitting of a single cause of action? Based on the above distinctions, Mr. C’s opposition
Explain your answer. (2017 Bar) was tenable.

A: Yes, there is a splitting of a single cause of action. Joinder and misjoinder of causes of action
Under the Section 4, Rule 2, there is a splitting of a
single cause of action if two or more suits are Q: What is the rule on joinder of causes of action?
instituted on the basis of the same cause of action. (1999 Bar)
Here, both suits - the foreclosure and the collection
suit - arose from the same cause of action, that is, the A: The rule on joinder of causes of action is that a
non-payment by Elise of her P3 million loan from party may in one pleading assert, in the alternative
Merchant Bank. The fact that the two actions were or otherwise, as many causes of action as he may
based on separate contracts is irrelevant, what have against an opposing party, provided that the
matters is that both actions arose from the same rule on joinder of parties is complied with; the
cause of action. joinder shall not include special civil actions or
actions governed by special rules, but may include
Q: Mr. C sued Mr. D for reconveyance of property causes of action pertaining to different venues or
and damages, claiming that Mr. D, through fraud jurisdictions provided one cause of action falls
and forgery, was able to obtain the title to Lot within the jurisdiction of a Regional Trial Court and
No. 1234, which was previously registered in Mr. venue lies therein; and the aggregate amount
C's name. The complaint was filed before the claimed shall be the test of jurisdiction where the
Regional Trial Court.

8

 QuAMTO (1987-2019)
claims in all the causes of action are principally for fees. State with reasons whether it was proper
the recovery of money. (Sec. 5, Rule 2) for Ricky to join his causes of action in his
complaint for partition against Perry and
Q: Give the effects of the following: Marvin in the RTC of Pasay City. (2005 Bar)

a. Splitting a single cause of action; and A: It was not proper for Ricky to join his causes of
action against Perry in his complaint for partition
A: The effect of splitting a single cause of action is against Perry and Marvin. The causes of action may
found in the rule as follows: If two or more suits are be between the same parties, Ricky and Perry, with
instituted on the basis of the same cause of action, respect to the loan but not with respect to the
the filing of one or a judgment on the merits in any partition which includes Marvin. Moreover, the
one is available as a ground for the dismissal of the supposed joinder includes a special civil action,
others. (Sec. 4, Rule 2) thus, not allowed under Sec. 5(b), Rule 2.

b. Non-joinder of a necessary party. (1998 PARTIES TO A CIVIL ACTION
Bar)
Real parties-in-interest; Indispensable parties;
A: The effect of the non-joinder of a necessary party Representatives as parties; Necessary parties;
may be stated as follows: The court may order the Indigent parties; Alternative defendants
inclusion of an omitted necessary party if
jurisdiction over his person may be obtained. The Q: In 1996, Congress passed Republic Act No.
failure to comply with the order for his inclusion 8189, otherwise known as the Voter’s
without justifiable cause is a waiver of the claim Registration Act of 1996, providing for the
against such party. The court may proceed with the computerization of elections. Pursuant thereto,
action but the judgment rendered shall be without the COMELEC approved the Voter’s Registration
prejudice to the rights of such necessary party. (Sec. and Identification System (VRIS) Project. It
9, Rule 3) issued invitations to pre-qualify and bid for the
project. After the public bidding, Fotokina was
Q: A secured two loans from B. One for declared the winning bidder with a bid of P6
P500,000.00 and the other for P1,000,000, billion and was issued a Notice of Award. But
payable on different dates. Both have fallen due. COMELEC Chairman Gener Go objected to the
Is B obliged to file only one complaint against A award on the ground that that under the
for the recovery of both loans? Explain. (1999 Appropriations Act, the budget for the
Bar) COMELEC’s modernization is only P1 billion. He
announced to the public that the VRIS project
A: No. Joinder is only permissive since the loans are has been set aside. Two Commissioners sided
separate loans which may be governed by the with Chairman Go, but the majority voted to
different terms and conditions. The two loans give uphold the contract. Meanwhile, Fotokina filed
rise to two separate causes of action and may be the with the RTC a petition for mandamus to compel
basis of two separate complaints. the COMELEC to implement the contract. The
Office of the Solicitor General (OSG),
Q: Perry is a resident of Manila, while Ricky and representing Chairman Go, opposed the petition
Marvin are residents of Batangas City. They are on the ground that mandamus does not lie to
the co-owners of a parcel of residential land enforce contractual obligations. During the
located in Pasay City with an assessed value of proceedings, the majority Commissioners filed a
P100,000.00. Perry borrowed P100,00.00 from manifestation that Chairman Go was not
Ricky which promised to pay on or before authorized by the COMELEC En Banc to oppose
December 1, 2004. However, Perry failed to pay the petition. May the OSG represent Chairman
his loan. Perry also rejected Ricky and Marvin’s Go before the RTC notwithstanding that his
proposal to partition the property. Ricky filed a position is contrary to that of the majority?
complaint against Perry and Marvin in the RTC (2002 Bar)
of Pasay City for the partition of the property. He
also incorporated in his complaint his action A: Yes, the OSG may represent the COMELEC
against Perry for the collection of the latter’s Chairman before the RTC notwithstanding that his
P100,000.00 loan, plus interests and attorney’s position is contrary to that of the majority of the

9
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
Commission members in the COMELEC. Being an case. Hence, she is bound by the judgment as against
independent office, the hands of the OSG are not Roscoe although she is not party to the case (Sec. 19,
shackled to the cause of its client agency. In the Rule 3; Cabresos v. Tero, G.R. No. L-46843, October 18,
discharge of its task, the primordial concern of the 1988). A judgment is conclusive between the parties
OSG is to see to it that the best interest of the and their successors-in-interest by title subsequent
government is upheld. This is regardless of the fact to the case. (Sec. 47, Rule 39)
that what it perceived as the "best interest of the
government" runs counter to its client agency’s Q: Strauss filed a complaint against Wagner for
position. (COMELEC v. Quijano-Padilla, G. R. No. cancellation of title. Wagner moved to dismiss
151992, September 18, 2002) the complaint because Grieg, to whom he
mortgaged the property as duly annotated in the
Q: Half-brothers Roscoe and Salvio inherited TCT, was not impleaded as defendant.
from their father a vast tract of unregistered
land. Roscoe succeeded in gaining possession of a. Should the complaint be dismissed?
the parcel of land in its entirety and transferring
the tax declaration thereon in his name. Roscoe A: No. The complaint should not be dismissed
sold the northern half to Bono, Salvio's cousin. because the mere non-joinder of an indispensable
Upon learning of the sale, Salvio asked Roscoe to party is not a ground for the dismissal of the action
convey the southern half to him. Roscoe refused (Sec. 11, Rule 3; Republic v. Hon. Mangotara, G.R. No.
as he even sold one-third of the southern half 170375, July 7, 2010).
along the West to Carlo. Thereupon, Salvio filed
an action for the reconveyance of the southern b. If the case should proceed to trial without
half against Roscoe only. Carlo was not Grieg being impleaded as a party to the case,
impleaded. After filing his answer, Roscoe sold what is his remedy to protect his interest?
the middle third of the southern half to Nina. (2015 Bar)
Salvio did not amend the complaint to implead
Nina. After trial, the court rendered judgment A: If the case should proceed to trial without Grieg
ordering Roscoe to reconvey the entire southern being impleaded as a party, he may intervene in the
half to Salvio. The judgment became final and action (Sec. 1, Rule 19). He may also file a petition for
executory. A writ of execution having been annulment of judgment under Rule 4, should a
issued, the Sheriff required Roscoe, Carlo and judgment be already rendered.
Nina to vacate the southern half and yield
possession thereof to Salvio as the prevailing In Metrobank v. Hon. Floro Alejo, (G.R. No. 141970,
party. Carlo and Nina refused, contending that September 10, 2001) the Supreme Court held that in
they are not bound by the judgment as they are a suit to nullify an existing Torrens Certificate of
not parties to the case. Is the contention Title (TCT) in which a real estate mortgage is
tenable? Explain fully. (2008 Bar) annotated, the mortgagee is an indispensable party.
In such suit, a decision cancelling the TCT and the
A: Yes. In case of transfer of interest pending mortgage annotation is subject to a petition for
litigation, the action may be continued by or against annulment of judgment, because the non-joinder of
the original party unless the court, upon motion, a mortgagee deprived the court of jurisdiction to
directs a person to be substituted in the action or pass upon the controversy.
joined with the original party (Sec. 19, Rule 3). The
owners of property over which reconveyance is Q: Spouses Marlon and Edith have three (3)
asserted are indispensable parties and must be children ages 15, 12 and 7, who are studying at
joined in the action. Accordingly, the contention of public schools. They have a combined gross
Carlo who is such party to the action filed by Salvio, monthly income of P30,000.00 and they stay in
is tenable. He is not bound by the judgment because an apartment in Manila with a monthly rent of
he became a co-owner of the land before the case P5,000.00. The monthly minimum wage per
was filed and yet he has not been included as a party employee in Metro Manila does not exceed
thereto (Matuguina Integrated Wood Products, Inc. P13,000.00. They do not own any real property.
v. Court of Appeals, G.R. No. 98310, October 24, 1996; The spouses want to collect a loan of P25,000.00
Ma. Valentia Santana-Cruz v. Court of Appeals, G.R. from Jojo but do not have the money to pay the
No. 120176, July 20, 2001). Nina, however is a filing fees.
successor-in-interest of Roscoe and privy to the

10


 QuAMTO (1987-2019)
a. Would the spouses qualify as indigent half of which fell on the front portion of Ms. A's
litigants under Section 19, Rule 141 on Legal car and permanently damaged its engine. In her
Fees? (2016 Bar) answer, Ms. B denied any personal liability for
the damage caused to Ms. A's car, averring that
A: No, the spouses would not qualify as indigent she merely acquiesced to the advice of her
litigants under Section 19, Rule 141 since their contractor, XYZ Construction Co., to have the
combined gross monthly income of P30,000.00 concrete fence demolished. Thus, damages, if
exceeds P26,000, the amount double the monthly any, should be collected from it.
minimum wage.
Thereafter, Ms. A filed a motion for judgment on
b. If the spouses do not qualify under Rule 141, the pleadings, alleging that Ms. B's statement in
what other remedy can they avail of under her answer is actually a negative pregnant. Ms. B
the rules to exempt them from paying the opposed the motion, reiterating her defense in
filing fees? (2016 bar) her answer which purportedly rendered
judgment on the pleadings improper. Ms. B also
A: The other remedy the spouses can avail of under moved for the dismissal of the case on the
the rules to exempt them from paying the filing fees ground of non-joinder of XYZ Construction Co.,
is to apply for exemption pursuant to the “indigency which she alleged is an indispensable party to
test” under Section 21, Rule 3 of the Rules of Court the case.
if they can prove that they have no money or
property sufficient and available for food, shelter Assuming that XYZ Construction Co. is an
and basic necessities for themselves and their indispensable party, is its non-joinder a ground
family. (Sps. Algura v. City of Naga, 30 October 2006) for the dismissal of the case? Explain. (2019 Bar)

Misjoinder and non-joinder of parties A: No. The non-joinder of XYZ Construction Co. as an
indispensable party is not a ground for the dismissal
Q: Hanna, a resident of Manila, filed a complaint of the case. The remedy is to implead the party
for the partition of a large tract of land located claimed to be indispensable, considering that the
in Oriental Mindoro. She impleaded her two parties may be added by order of the court, on
brothers John and Adrian as defendants but did motion of the party or on its own initiative at any
not implead Leica and Agatha, her two sisters stage of the action. In Plasabas v. CA (G.R. No.
who were permanent residents of Australia. 166519, March. 31, 2009), it was held that the non-
Arguing that there could be no final joinder of indispensable parties is not a ground for
determination of the case without impleading the dismissal of an action.
all indispensable parties, John and Adrian
moved to dismiss the complaint. Class suit

Does the trial court have a reason to deny the Q: Distinguish a derivative suit from a class suit.
motion? Explain your answer. (2017 Bar) (2005 Bar)

A: Yes. The trial court has reason to deny the A: A derivative suit is a suit in equity that is filed by
motion. Section 11, Rule 3 Rules of Court states that a minority shareholder in behalf of a corporation to
neither misjoinder nor non-joinder of parties is a redress wrongs committed against it, for which the
ground for the dismissal of an action. The petitioner directors refuse to sue, the real party in interest
can still amend his initiatory pleading in order to being the corporation itself (Lim v. Lim-Yu, G.R. No.
implead Leica and Agatha, for under the same rule, 138343, February 19, 2001). A class suit is filed in
such amendment to implead an indispensable party behalf of many persons so numerous that it is
may be made on motion of any party or on the trial impracticable to join all as parties. (Sec. 12, Rule 3)
court’s own initiative at any stage of the action and
on such terms as are just. (Ablaza v. Republic; G.R. Effect of death of party-litigant
No. 158298, August 11, 2010)
Q: What is the effect of the death of a party upon
Q: Ms. A filed a complaint for damages against a pending action? (1999 Bar)
Ms. B, alleging that Ms. B negligently caused the
demolition of her house's concrete fence, the top

11
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
A: When the claim in a pending action is purely against the executor or administrator or successor
personal, the death of either of the parties in interest of the deceased in accordance with Sec.
extinguishes the claim and the action is dismissed. 7(b), Rule 39.
When the claim is not purely personal and is not
thereby extinguished, the party should be Q: A filed a complaint for the recovery of
substituted by his heirs or his executor or ownership of land against B who was
administrator (Sec. 16, Rule 3). If the action is for represented by her counsel X. In the course of
recovery of money arising from contract, express or the trial, B dies. However, X failed to notify the
implied, and the defendant dies before entry of final court of B’s death. The court proceeded to hear
judgment in the court in which the action was the case and rendered judgment against B. After
pending at the time of such death, it shall not be the judgment became final, a writ of execution
dismissed but shall instead be allowed to continue was issued against C, who being B’s sole heir,
until entry of final judgment. A favorable judgment acquired the property. If you were the counsel of
obtained by the plaintiff shall be enforced in the C, what course of action would you take? (1998
manner provided in the rules for prosecuting claims Bar)
against the estate of a deceased person. (Sec. 20,
Rule 3) A: As counsel of C, I would move to set aside the writ
of execution and the judgment for lack of
Q: PJ engaged the services of Atty. ST to jurisdiction and lack of due process in the same
represent him in a civil case filed by OP against court because the judgment is void. If X had notified
him which was docketed as Civil Case No. 123. A the court of B’s death, the court would have ordered
retainership agreement was executed between the substitution of the deceased by C, the sole heir
PJ and Atty. ST whereby PJ promised to pay Atty. of B (Sec. 16, Rule 3). The court acquired no
ST a retainer sum of P24,000.00 a year and to jurisdiction over C upon whom trial and the
transfer the ownership of a parcel of land to judgment are not binding (Ferreria v. Ibarra Vda. De
Atty. ST after presentation of PJ’s evidence. PJ Gonzales, G.R. No. L-11567, July 17, 1958; Vda. De la
did not comply with his undertaking. Atty. ST Cruz v. Court of Appeals, G.R. No. L-41107, February
filed a case against PJ which was docketed as 28, 1979; Lawas v. Court of Appeals, G.R. No. L-45809
Civil Case No. 456. During the trial of Civil Case December 12, 1986). I could also file an action to
No. 456, PJ died. annul the judgment for lack of jurisdiction because
C, as the successor of B, was deprived of due process
(a) Is the death of PJ a valid ground to dismiss and should have been heard before judgment. (Rule
the money claim of Atty. ST in Civil Case No. 47)
456? Explain.
Q: Prince Chong entered into a lease contract
A: No. Under Sec. 20, Rule 3, when the action is for with King Kong over a commercial building
recovery of money arising from contract, express or where the former conducted his hardware
implied, and the defendant dies before entry of final business. The lease contract stipulated, among
judgment in the court in which the action is pending others, a monthly rental of P50,000.00 for a four
at the time of such death, it shall not be dismissed (4) – year period commencing on January 1,
but shall instead be allowed to continue until entry 2010. On January 1, 2013, Prince Chong died.
of final judgment. A favorable judgment obtained by Kin II Chong was appointed administrator of the
the plaintiff shall be enforced in the manner estate of Prince Chong, but the former failed to
especially provided in the Rules for prosecuting pay the rentals for the months of January to June
claims against the estate of the deceased person. 2013 despite King Kong’s written demands.
Thus, on July 1, 2013, King Kong filed with the
(b) Will your answer be the same with respect Regional Trial Court (RTC) an action for
to the real property being claimed by Atty. rescission of contract with damages and
ST in Civil Case No. 456? Explain. (1999, payment of accrued rentals as of June 30, 2013.
2000, 2009 Bar)
a. Can Kin II Chong move to dismiss the
A: Yes. An action to recover real property in any complaint on the ground that the RTC is
event survives the death of the defendant (Sec. 1, without jurisdiction since the amount
Rule 87). However, a favorable judgment may be claimed is only P300,000.00?
enforced in accordance with Sec. 7(b), Rule 39

12


 QuAMTO (1987-2019)
A: No. Kin II Chong cannot move to dismiss the a contingent claim in the probate proceedings
Complaint. An action for rescission of contract with pursuant to Rule 86 of the Rules of Court.
damages and payment of accrued rentals is
considered incapable of pecuniary estimation and VENUE
therefore cognizable by the Regional Trial Court.
(Ceferina De Ungria v. Court of Appeals, G.R. No. Q: Distinguish Jurisdiction from Venue. (2006
165777, July 25, 2011) Bar)

b. If the rentals accrued during the lifetime of A: Jurisdiction is the power of the Court to decide a
Prince Chong, and King Kong also filed the case on the merits, while venue refers to the place
complaint for sum of money during that where the suit may be filed. In criminal actions,
time, will the action be dismissible upon however, venue is jurisdictional. Jurisdiction may
Prince Chong’s death during the pendency of not be conferred upon a court by consent through
the case? (2014 Bar) waiver, but venue may be waived except in criminal
cases.
A: No. The action will not be dismissible upon Prince
Chong’s death during the pendency of the case. Q: Angela, a resident of Quezon City, sued
When the action is for recovery of money arising Antonio, a resident of Makati City before the RTC
from contract, and defendant dies before entry of of Quezon City for the reconveyance of two
final judgment in the court in which the action was parcels of land situated in Tarlac and Nueva
pending at the time of such death, it shall not be Ecija, respectively. May her action prosper?
dismissed but shall instead be allowed to continue Assuming that the action was for foreclosure on
until entry of final judgment. A favorable judgment the mortgage of the same parcels of land, what is
obtained by the plaintiff shall be enforced under the proper venue for the action? (2008 Bar)
Rule 86 (Sec. 20, Rule 3). Relative thereto, since the
complaint for sum of money filed by King Kong A: Yes. The action may prosper because improper
survives the death of Prince Chong, the case shall venue can be waived; and there appears to be no
not be dismissed and the Court shall merely order objection from the defendant. An action for
the substitution of the deceased defendant. (Sarsaba reconveyance of parcels of land partakes of an
v. Vda. De Te, G.R. No. 175910, July 30, 2009) action to recover title to or possession of such land;
hence a real action which should be filed in the place
Q: Chika sued Gringo, a Venezuelan, for a sum of where the parcels of land are situated in Tarlac and
money. The Metropolitan Trial Court of Manila Nueva Ecija.
(MeTC) rendered a decision ordering Gringo to
pay Chika P50,000.00 plus legal interest. During If the action was for foreclosure of mortgage, the
its pendency of the appeal before the RTC, action may be filed either in Tarlac or Nueva Ecija
Gringo died of acute hemorrhagic pancreatitis. where any of the parcels of land is situated. Only one
Atty. Perfecto, counsel of Gringo, filed a action for foreclosure need be filed as only one
manifestation attaching the death certificate of contract had been instituted. (BPI. v. Green, G.R. No.
Gringo and informing the RTC that he cannot 35125, December 12, 1932)
substitute the heirs since Gringo did not disclose
any information on his family. As counsel for Q: A law was passed declaring Mt. Karbungko as
Chika, what remedy can you recommend to your a protected area since it was a major watershed.
client so the case can move forward and she can The protected area covered a portion located in
eventually recover her money? Explain. (2016 Municipality A of the Province I and a portion
Bar) located in the City of Z of Province II. Maingat is
the leader of Samahan ng Tagapag-ingat ng
A: The remedy I can recommend to my client Chika Karbungko (STK), a people's organization. He
is to file a petition for settlement of the estate of learned that a portion of the mountain located in
Gringo and for the appointment of an administrator. the City of Z of Province II was extremely
Chika as a creditor is an interested person who can damaged when it was bulldozed and leveled to
file the petition for settlement of Gringo’s estate. the ground, and several trees and plants were
Once the administrator is appointed, I will move cut down and burned by workers of World
that the administrator be substituted as the Pleasure Resorts, Inc. (WPRI) for the
defendant. I will also file my claim against Gringo as construction of a hotel and golf course. Upon

13
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
inquiry with the project site engineer if they had Q: XV Water Builders, a construction company
a permit for the project, Maingat was shown a based in Makati City, entered into a construction
copy of the Environmental Compliance agreement with Super Powers, Inc., an energy
Certificate (ECC) issued by the DENR-EMB, company based in Manila, for the construction of
Regional Director (RD- DENR-EMB). a mini hydro electric plant. Water Builders
Immediately, Maingat and STK filed a petition failed to complete the project within the
for the issuance of a writ of continuing stipulated duration. Super Powers cancelled the
mandamus against RD-DENR-EMB and WPRI contract. Water Builders filed a request for
with the RTC of Province I, a designated arbitration with the Construction Industry
environmental court, as the RD-DENR-EMB Arbitration Commission (CIAC). After due
negligently issued the ECC to WPRI. proceedings, CIAC rendered judgment in favor
of Super Powers, Inc. ordering Water Builders to
On scrutiny of the petition, the court determined pay the former P 10 million, the full amount of
that the area where the alleged actionable the down payment paid, and P2 million by way
neglect or omission subject of the petition took of liquidated damages. Dissatisfied with the
place in the City of Z of Province II, and therefore CIAC's judgment, Water Builders, pursuant to
cognizable by the RTC of Province II. Thus, the the Special Rules of Court on Alternative Dispute
court dismissed outright the petition for lack of Resolution (ADR Rules) filed with the RTC of
jurisdiction. Pasay City a petition to vacate the arbitral
award. Super Powers, Inc., in its opposition,
(a) Was the court correct in motu proprio moved to dismiss the petition, invoking the ADR
dismissing the petition? Rules, on the ground of improper venue as
neither of the parties were doing business in
A: No. The court was not correct in motu propio Pasay City. Should Water Builders' petition be
dismissing the petition. While it appears that the dismissed? (2015 Bar)
alleged actionable neglect or omission took place in
the City of Z of Province II and, therefore cognizable A: Yes. Water Builders’ petition should be
by the RTC of Province II, nonetheless, venue is not dismissed. Under Rule 11.3 of the Special ADR
jurisdictional, and it can be waived in a special civil Rules, the petition for vacation of a domestic arbitral
action for continuing mandamus. (Dolot v. Hon. Paje, award may be filed with the Regional Trial Court
G.R. No. 199199, August 27, 2013) having jurisdiction over the place in which one of
the parties is doing business, where any of the
Besides, under Section 1, Rule 9 of the Rules of parties reside or where arbitration proceedings
Court, defenses and objections not pleaded in the were conducted. Here neither of the parties were
answer or in the motion to dismiss are deemed doing business in Pasay City nor was there a
waived. Hence, the court cannot motu propio showing that arbitration proceedings were
dismiss the case on the ground of improper venue. conducted in Pasay City.

(b) Assuming that the court did not dismiss the Effects of Stipulations on Venue
petition, the RD-DENR-EMB in his Comment
moved to dismiss the petition on the ground Q: X, a resident of Angeles City, borrowed
that petitioners failed to appeal the issuance P300,000.00 from A, a resident of Pasay City. In
of the ECC and to exhaust administrative the loan agreement, the parties stipulate that
remedies provided in the DENR Rules and “the parties agree to sue and be sued in the City
Regulations. Should the court dismiss the of Manila.”
petition? (2015 Bar)
a. In case of non-payment of the loan, can A file
A: Yes, the court should dismiss the petition his complaint to collect the loan from X in
because the proper procedure to question defect in Angeles City?
an ECC is to follow the DENR administrative appeal
process in accordance with the doctrine of A: Yes, because the stipulation in the loan
exhaustion of administrative remedies. (Dolot v. agreement that “the parties agree to sue and be sued
Hon. Paje, G.R. No. 199199, August 27, 2013; Paje v. in the City of Manila” does not make Manila the
Casiño, G.R. No. 207257, February 3, 2015) “exclusive venue thereof” (Sec. 4, Rule 4). Hence, A

14


 QuAMTO (1987-2019)
can file his complaint in Angels City where he exclusive venue stipulation contained therein and
resides. (Sec. 2, Rule 4) should be filed in accordance with the general rules
on venue. The Supreme Court ruled that it would be
b. Suppose the parties did not stipulate in the inherently inconsistent for a complaint of this
loan agreement as to the venue, where can A nature to recognize the exclusive venue stipulation
file his complaint against X? when it, in fact, precisely assails the validity of the
instrument in which such stipulation is contained.
A: If the parties did not stipulate on the venue, A can
file his complaint either in Angeles City where he In this case, Evan’s complaint directly assails the
resides or in Pasay City where X resides. (Sec. 2, Rule validity of the promissory note and deed of
4) mortgage, which contains said venue stipulation;
hence, said venue stipulation is not binding on him.
c. Suppose the parties stipulated in their loan Evan correctly filed his complaint with the Manila
agreement that “venue for all suits arising RTC pursuant to Rule of the Rules of Court.
from this contract shall be the courts in
Quezon City,” can A file his complaint against PLEADINGS
X in Pasay City? (1997 Bar)
Q: What is counterclaim? Distinguish a
A: No. If the parties stipulated that the venue “shall counterclaim from a crossclaim. (1999 Bar)
be in the courts in Quezon City,” A cannot file his
complaint in Pasay City because the use of the word A: A counterclaim is distinguished from a cross-
“shall” makes Quezon City the exclusive venue claim in that a cross-claim is any claim by one party
thereof. (Hoechst Philippines v. Torres, G.R. No. L- against a co-party arising out of the transaction or
44351 May 18, 1978) occurrence that is the subject matter either of the
original action or of a counterclaim therein. A
Q: After working for 25 years in the Middle East, counterclaim is against an opposing party while a
Evan returned to the Philippines to retire in cross-claim is against a co-party. (Sec. 8, Rule 6)
Manila, the place of his birth and childhood. Ten
years before his retirement, he bought for cash Q: Antique dealer Mercedes borrowed
in his name a house and lot in Malate, Manila. Six P1,000,000 from antique collector Benjamin.
months after his return, he learned that his Mercedes issued a postdated check in the same
house and lot were the subject of foreclosure amount to Benjamin to cover the debt. On the
proceedings commenced by ABC Bank on the due date of the check, Benjamin deposited it but
basis of a promissory note and a deed of real it was dishonored. As despite demands,
estate mortgage he had allegedly executed in Mercedes failed to make good the check,
favor of ABC Bank five years earlier. Knowing Benjamin filed in January 2009 a complaint for
that he was not in the country at the time the collection of sum of money before the RTC of
promissory note and deed of mortgage were Davao. Mercedes filed in February 2009 her
supposedly executed, Evan forthwith initiated a Answer with Counterclaim, alleging that before
complaint in the RTC of Manila praying that the the filing of the case, she and Benjamin had
subject documents be declared null and void. entered into a dacion en pago agreement in
ABC Bank filed a motion to dismiss Evan's which her vintage P1,000,000 Rolex watch
complaint on the ground of improper venue on which was taken by Benjamin for sale on
the basis of a stipulation in both documents commission was applied to settle her
designating Quezon City as the exclusive venue indebtedness; and that she incurred expenses in
in the event of litigation between the parties defending what she termed a "frivolous
arising out of the loan and mortgage. Should the lawsuit." She accordingly prayed for P50,000
motion to dismiss of ABC Bank be granted? damages.
Explain your answer. (2017 Bar)
a. Benjamin soon after moved for the dismissal
A: No. ABC Bank’s motion to dismiss should be of the case. The trial court accordingly
denied. In Briones v. Court of Appeals (G.R. No. dismissed the complaint. And it also
204444, January 14, 2015), the Supreme Court ruled dismissed the Counterclaim. Mercedes
that a complaint directly assailing the validity of the moved for a reconsideration of the dismissal
written instrument itself should not be bound by the

15
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
of the Counterclaim. Pass upon Mercedes’ promptly filed his answer, and included a
motion. counterclaim for P250,000.00 arising from the
allegedly baseless and malicious claims of
A: Mercedes’ Motion for Reconsideration is Abraham that compelled him to litigate and to
impressed with merit: the trial court should not engage the services of counsel, and thus caused
have dismissed her counter-claim despite the him to suffer mental anguish. Noting that the
dismissal of the Complaint. Since it was the plaintiff amount of the counterclaim was below the
(Benjamin) who moved for the dismissal of his exclusive original jurisdiction of the RTC,
Complaint, and at a time when the defendant Abraham filed a motion to dismiss vis-a-vis the
(Mercedes) had already filed her Answer thereto counterclaim on that ground. Should the
and with counterclaim, the dismissal of the counterclaim of Salvador be dismissed? Explain
Complaint should not carry with it the dismissal of your answer. (2017 Bar)
the counterclaim without the conformity of the
defendant-counterclaimant. Under Rule 15, Section A: No, the counterclaim of Salvador should not be
2, if a counterclaim has been pleaded by a defendant dismissed on the ground of lack of jurisdiction. In an
prior to the service upon him of the plaintiff’s original action before the RTC, the RTC has
motion for dismissal, the dismissal shall be limited jurisdiction over a compulsory counterclaim
to the complaint. The dismissal shall be without regardless of its amount (Sec. 7, Rule 6). Here
prejudice to the right of the defendant to prosecute Salvador’s counterclaim for damages arising from
his counterclaim. the alleged malicious and baseless claims of
Abraham is a compulsory counterclaim as it arises
b. Suppose there was no Counterclaim and from Abraham’s complaint. Hence the RTC has
Benjamin’s complaint was not dismissed, jurisdiction over Salvador’s counterclaim even if it
and judgment was rendered against did not exceed the jurisdictional amount of
Mercedes for P1,000,000. The judgment P400,000.
became final and executory and a writ of
execution was correspondingly issued. NOTE: R.A. No. 11576 was enacted in 2021
Since Mercedes did not have cash to settle increasing the jurisdiction of the RTCs in all actions
the judgment debt, she offered her Toyota and maritime jurisdiction where the demand or
Camry model 2008 valued at P1.2 million. claims exceeds P2,000,000.
The Sheriff, however, on request of
Benjamin, seized Mercedes’ 17th century Q: PX filed a suit for damages against DY. In his
ivory image of the La Sagrada Familia answer, DY incorporated a counterclaim for
estimated to be worth over P1,000,000. Was damages against PX and AC, counsel for plaintiff
the Sheriff’s action in order? (2010 Bar) in said suit, alleging in said counterclaim, inter
alia, that AC, as such counsel, maliciously
A: No, the Sheriff’s action was not in order. He induced PX to bring the suit against DY despite
should not have listened to Benjamin, the judgment AC’s knowledge of its utter lack of factual and
obligee/creditor, in levying on the properties of legal basis. In due time, AC filed a motion to
Mercedes, the judgment obligor/debtor. The option dismiss the counterclaim as against him on the
to immediately choose which property or part ground that he is not a proper party to the case,
thereof may be levied upon, sufficient to satisfy the he being merely plaintiff’s counsel. Is the
judgment, is vested by law (Rule 39, Sec. 9[b]) upon counterclaim of DY compulsory or not? Should
the judgment obligor, Mercedes, not upon the AC’s motion to dismiss the counterclaim be
judgment obligee, Benjamin, in this case. Only if the granted or not? Reason. (2004 Bar)
judgment obligor does not exercise the option is the
Sheriff authorized to levy on personal properties if A: Yes. The counterclaim of DY is compulsory
any, and then on the real properties if the personal because it is one which arises out of or is connected
properties are insufficient to answer for the with the subject matter of the opposing party’s
judgment. claim and does not require for its adjudication the
presence of third parties of whom the court cannot
Q: Abraham filed a complaint for damages in the acquire jurisdiction (Sec. 7, Rule 6). The motion to
amount of P750,000.00 against Salvador in the dismiss of plaintiff’s counsel should not be granted
RTC in Quezon City for the latter's alleged because bringing in plaintiff’s counsel as a
breach of their contract of services. Salvador defendant in the counterclaim is authorized by the

16


 QuAMTO (1987-2019)
Rules. Where it is required for the grant of complete controverted (Sec. 10, Rule 6). However, since the
relief in the determination of the counterclaim, the contract of lease attached to the answer is the basis
court shall order the defendant’s counsel to be of the defense, by not filing a reply denying under
brought in since jurisdiction over him can be oath the genuineness and due execution of said
obtained (Sec. 12, Rule 6; Aurelio v. Court of Appeals, contract, the plaintiff is deemed to have admitted
G.R. No. 90742, May 6, 1991). Here, the counterclaim the genuineness and due execution thereof. (Secs. 7
was against both the plaintiff and his lawyer who and 8, Rule 8; Toribio v. Bidin,G.R. No. L-57821
allegedly maliciously induced the plaintiff to file the January 17, 1985)
suit.
Q: Mr. H filed a complaint against Mr. I to recover
Q: B and C borrowed P400,000.00 from A. The the amount of ₱500,000.00 based on their
promissory note was executed by B and C in a contract of services. In his answer, Mr. I
joint and several capacity. B, who received the admitted that he has yet to pay Mr. H for his
money from A, gave C P200,000.00. C, in turn, services based on their contract but
loaned P100,000.00 out of the P200,000.00 he nevertheless, interposed a counterclaim
received to D. alleging that Mr. H still owed him rental
arrearages for the lease of his apartment also
a. In an action filed by A against B and C with amounting to ₱500,000.00.
the RTC of Quezon City, can B file a cross-
claim against C for the amount of It has come to Mr. H's attention that Mr. I did not
P200,000.00? pay any filing fees when he filed his answer. As
such, Mr. H moved to dismiss the counterclaim.
A: Yes. B can file a cross-claim against C for the In response to Mr. H's motion, Mr. I averred that
amount of P200,000.00 given to C. A cross-claim is a the non-payment of filing fees was purely based
claim filed by one party against a co-party arising on inadvertence and that the said filing fees had
out of the transaction or occurrence that is the already been paid as of date, as evinced by the
subject matter of the original action or a official receipt issued by the clerk of court
counterclaim therein and may include a claim that therefor.
the party against whom it is asserted is or may be
liable to the cross- claimant for all or part of a claim a. What is the nature of Mr. l's counterclaim? Is
asserted against the cross-claimant (Sec. 8, Rule 6). the payment of filing fees required for such
counterclaim to prosper? Explain.
b. Can C file a third-party complaint against D
for the amount of P100,000.00? (1997 Bar) A: Mr. I’s counterclaim is permissive. It is
permissive because the rental arrearages for the
A: No. C cannot file a third-party complaint against lease of his apartment amounting to P500,000 does
D because the loan of P100,000 has no connection not arise out of or is not necessarily connected with
with the opponent’s claim. C could have loaned the the subject matter of the opposing party’s claim
money out of other funds in his possession. which is the recovery in the amount of P500,000
based on their contract of service. Thus, permissive
Q: X files a complaint in the RTC for the recovery counterclaim of Mr. I is essentially an independent
of a sum of money with damages against Y. Y files claim that may be filed separately in another case.
his answer denying liability under the contract (Sy-Vargas v. Estate of Ogsos, Sr., G.R. No. 221062,
of sale and praying for the dismissal of the October 5, 2016)
complaint on the ground of lack of cause of
action because the contract of sale was b. Should Mr. I's counterclaim be dismissed?
superseded by a contract of lease executed and Explain. (2019 Bar)
signed by X and Y two weeks after the contract
of sale was executed. The contract of lease was A: No. While the rule in permissive counterclaims is
attached to the answer. X does not file a reply. that for the trial court to acquire jurisdiction, the
What is the effect of non- filing of a reply? counterclaimant is bound to pay the prescribed
Explain. (2000 Bar) docket fees. In this case, Mr. I had already paid the
docket fees as there was already an official receipt.
A: A reply is generally optional. If it is not filed, the The counterclaim should not be dismissed for non-
new matters alleged in the answer are deemed payment of docket fees. Instead, the docket fees

17
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
required shall constitute judgment lien on the non-forum shopping. To avoid further delays in
monetary awards in respondent’s favor. In the filing of the complaint, Atty. XY signed the
Intercontinental Broadcasting Corporation v. certification and immediately filed the
Legasto (G.R. No. 169108, April 18, 2006) citing Sec. complaint in court. Is XY justified in signing the
2, Rule 141 of the Rules of Court, the Court held that certification? Why? (2000 Bar)
in instances where a litigant’s non-payment of
docket fees was made in good faith and without any A: No, counsel cannot sign the anti-forum shopping
intention of defrauding the government, the clerk of certification because it must be executed by the
court of the court a quo should be ordered to assess “plaintiff or principal party” himself (Sec. 5, Rule 7),
the amount of deficient docket fees due from such since the rule requires personal knowledge by the
litigant, which will constitute a judgment lien on the party executing the certification, unless counsel
amount awarded on him, and enforce such lien. gives a good reason why he is not able to secure his
client’s signatures and shows that his clients will be
Verification and Certification Against Forum deprived of substantial justice (Ortiz v. Court of
Shopping Appeals,G.R. No. 127393, December 4, 1998) or
unless he is authorized to sign it by his clients
Q: What is Forum Shopping? (2006 Bar) through a special power of attorney.

A: Forum-shopping is the act of filing multiple suits Q: Mr. Humpty filed with the Regional Trial
involving the same parties for the same cause of Court (RTC) a complaint against Ms. Dumpty for
action, either simultaneously or successively, for the damages. The RTC, after due proceedings,
purpose of obtaining a favorable judgment. rendered a decision granting the complaint and
(Executive Secretary v. Gordon, G.R. No. 134171, ordering Ms. Dumpty to pay damages to Mr.
November 18, 1998) Humpty. Ms. Dumpty timely filed an appeal
before the Court of Appeals (CA), questioning
Q: Honey filed with the Regional Trial Court the RTC decision. Meanwhile, the RTC granted
Taal, Batangas, a complaint for specific Mr. Humpty’s motion for execution pending
performance against Bernie. For lack of appeal. Upon receipt of the RTC’s order granting
certification against forum shopping, the judge execution pending appeal, Ms. Dumpty filed
dismissed the complaint. Honey’s lawyer filed a with the CA another case, this time a special civil
motion for reconsideration, attaching thereto action for certiorari assailing said RTC order. Is
an amended complaint with the certification there a violation of the rule against forum
against forum shopping. If you were the judge, shopping considering that two (2) actions
how will you resolve the motion? (2006 Bar) emanating from the same case with the RTC
were filed by Ms. Dumpty with the CA? Explain.
A: If I were the judge, the motion should be denied (2014 Bar)
after hearing because, as expressly provided in the
Rules, failure to comply with the requirement of A: There is no violation of the rule against forum
forum shopping is not curable by mere amendment shopping. In Philippines Nails and Wires Corporation
of the complaint or other initiatory pleading, but v. Malayan Insurance Company, Inc. (G.R. No. 143933,
shall be cause for dismissal of the case, without February 14, 2003), the Supreme Court held that one
prejudice, unless otherwise provided (Sec. 5, Rule 7). party may validly question a decision in a regular
However, the trial court in the exercise of its sound appeal and at the same time assail the execution
discretion, may choose to be liberal and consider pending appeal via certiorari without violating the
the amendment as substantial compliance. (Great rule against forum shopping. This is because the
Southern Maritime Services Corp. v. Acuna, G.R. No. merits of the case will not be addressed in the
140189, February 28, 2005; Chan v. RTC of Petition dealing with the execution and vice versa.
Zamboanga del Norte, G.R. 149253, April 15, 2004; Uy Since Ms. Dumpty merely filed a special civil action
v. Land Bank, G.R. 136100, July 24, 2000) for certiorari, the same will not constitute a
violation of the rules on forum shopping because the
Q: As counsel for A, B, C and D, Atty. XY prepared resolution or a favorable judgment thereon will not
a complaint for recovery of possession of a amount to res judicata in the subsequent
parcel of land against Z. Before filing the proceedings between the same parties (Benedicto v.
complaint, Atty. XY discovered that his clients Lacson, G.R. No. 141508, May 5, 2010).
were not available to sign the certification of

18


 QuAMTO (1987-2019)
Q: Tailors Toto, Nelson and Yenyen filed a August 22, 2008). Evidently, since there is a
special civil action for certiorari under Rule 65 commonality of interest among tailors Toto, Nelson
from an adverse decision of the National Labor and Yenyen, there is substantial compliance with
Relations Commission (NLRC) on the complaint the ruels on verification and certification against
for illegal dismissal against Empire Textile forum shopping, when Toto signed the verification
Corporation. They were terminated on the and certification, and Atty. Arman signed the same
ground that they failed to meet the prescribed for Nelson.
production quota at least four (4) times. The
NLRC decision was assailed in a special civil Allegations in a pleading
action under Rule 65 before the Court of Appeals
(CA). In the verification and certification against Q: In his complaint for foreclosure of mortgage
forum shopping, only Toto signed the to which was duly attached a copy of the
verification and certification, while Atty. Arman mortgage deed plaintiff PP alleged inter alia as
signed for Nelson. Empire filed a motion to follows: (1) that defendant DD duly executed the
dismiss on the ground of defective verification mortgage deed, copy of which is Annex “A” of the
and certification. Decide with reasons. (2016 complaint and made an integral part thereof;
Bar) and (2) that to prosecute his complaint, plaintiff
contracted a lawyer, CC, for a fee of P50,000. In
A: The motion to dismiss should be granted. The his answer, the defendant alleged, inter alia, that
verification and certification against non-forum he had no knowledge of the mortgage deed and
shopping were not signed by all petitioners. There he also denied any liability for plaintiffs
was no showing that Toto nor Atty. Arman were contracting with a lawyer for a fee. Does
duly authorized by the other petitioners through a defendant’s answer as to plaintiff’s allegation
special power of attorney to sign on their behalf; no. 1 as well as no. 2 sufficiently raise an issue of
hence, the motion to dismiss should be granted. fact? Reason briefly. (2004 Bar)

ALTERNATIVE ANSWER: A: As to plaintiffs allegation no. 1, defendant does
not sufficiently raise an issue of fact, because he
The motion to dismiss should be denied, because cannot allege lack of knowledge of the mortgage
there is substantial compliance of the requirements deed since he should have personal knowledge as to
of the rules. Verification is not a jurisdictional but whether he signed it or not and because he did not
merely a formal requirement which the court may deny under oath the genuineness and due execution
motu proprio direct a party to comply with or of the mortgage deed, which is an actionable
correct, as the case may be. On the other hand, document. As to plaintiff’s allegation no. 2,
regarding the certificate of non-forum shopping, the defendant did not properly deny liability as to
general rule is that all the petitioners or plaintiffs in plaintiffs contracting with a lawyer for a fee. He did
a case should sign it. not even deny for lack of knowledge. (Sec. 10, Rule
8)
However, the Supreme Court has time and again
stressed that the rules on forum shopping, which Q: On the basis of an alleged promissory note
were designed to promote the orderly executed by Harold in favor of Ramon, the latter
administration of justice, do not interdict filed a complaint for P950,000.00 against the
substantial compliance with its provisions under former in the RTC of Davao City. In an unverified
justifiable circumstances. As ruled by the Court, the answer, Harold specifically denied the
signature of any of the principal petitioners or genuineness of the promissory note. During the
principal parties, would constitute a substantial trial, Harold sought to offer the testimonies of
compliance with the rule on verification and the following: (1) the testimony of an NBI
certification of non-forum shopping. And should handwriting expert to prove the forgery of his
there exist a commonality of interest among the signature; and (2) the testimony of a credible
parties, or where the parties filed the case as a witness to prove that if ever Harold had
collective, raising only one common cause of action executed the note in favor of Ramon, the same
or presenting a common defense, then the signature was not supported by a consideration. May
of one of the petitioners or complainants, acting as Ramon validly object to the proposed
representative, is sufficient compliance (Irene testimonies? Give a brief explanation of your
Marcos-Araneta v. Court of Appeals, G.R. No. 154096, answer. (2017 Bar)

19
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
A: Ramon may validly object to the proposed pre-marked during pre-trial, identified but not
testimony of an NBI handwriting expert to prove authenticated during trial, and formally offered.
forgery. Under Sec. 8, Rule 8, the genuineness and
due execution of an actionable document is deemed Can the RTC of Manila consider the PN and the
admitted by the adverse party if he fails to Surety Agreement in rendering its decision?
specifically deny such genuineness and due (2018 Bar)
execution.
A: Yes. The RTC of Manila may consider the PN and
Here, the genuineness and due execution of the the surety agreement in rendering its decision.
promissory note, which is an actionable document,
was impliedly admitted by Harold when he failed to The PN and the surety agreement are actionable
deny the same under oath, his answer being documents, defined under Rule 8, Section 7 of the
unverified. Hence Harold is precluded from setting Rules of Court as a written instrument upon which
up the defense of forgery and thus Ramon may an action is founded upon. Rule 8, Section 8,
object to the proposed testimony seeking to prove moreover, provides that when an action is founded
forgery. upon a written instrument, copied in or attached to
the corresponding pleading, the genuineness and
However, Ramon may not validly object to the due execution of the instrument shall be deemed
proposed testimony showing that the note was not admitted unless the adverse party, under oath
supported by a consideration. specifically denies them, and sets forth what he
claims to be the facts.
The Supreme Court has held that an implied
admission under Sec. 8, Rule 8 does not preclude the In this case, Debra, Daniel, and Debbie are parties to
adverse party from introducing evidence that the the PN and the surety agreement. Since the PN and
actionable document was not supported by a surety agreement are attached to the complaint,
consideration. The reason is that such evidence is Debra, Daniel, and Debbie are deemed to have
not inconsistent with the implied admission of admitted the genuineness and due execution
genuineness and due execution (Acabal v. Acabal, thereof for their failure to: (a) deny the genuineness
G.R. No. 148376, March 31, 2005). The fact that the and due execution of these documents under oath;
defense of lack of consideration is inconsistent with and (b) to set for what they claim to be facts.
Harold’s defense of forgery is also not objectionable.
The court, therefore, may consider the PN and the
Q: Dorton Inc. (Dorton) sued Debra surety agreement in rendering its decision.
Commodities Inc. (Debra), Daniel, and Debbie in
the RTC of Manila for recovery of sum of money. Default; Relief from an order of default
The complaint alleged that, on October 14, 2017,
Debra obtained a loan from Dorton in the Q: When may a party be declared in Default?
amount of PhP 10 million with interest of 9% What is the effect of an Order of Default? (1999
per annum. The loan was evidenced by a Bar)
promissory note (PN) payable on demand
signed by Daniel and Debbie, the principal A: A party may be declared in default when he fails
stockholders of Debra, who also executed a to answer within the time allowed therefor and
Surety Agreement binding themselves as upon motion of the claiming party with notice to the
sureties. Copies of both the PN and the Surety defending party, and proof of such failure (Sec. 3,
Agreement were attached to the complaint. Rule 9). The effect of an Order of Default is that the
Dorton further alleged that it made a final court may proceed to render judgment granting the
demand on March 1, 2018 for Debra and the claimant such relief as his pleading may warrant
sureties to pay, but the demand was not heeded. unless the court in its discretion requires the
claimant to submit evidence. The party in default
Debra, Daniel, and Debbie filed their answer, cannot take part in the trial but shall be entitled to
and raised the affirmative defense that, while notice of subsequent proceedings (Sec. 3[a], Rule 9).
the PN and the Surety Agreement appeared to
exist, Daniel and Debbie were uncertain
whether the signatures on the documents were
theirs. The PN and the Surety Agreement were

20


 QuAMTO (1987-2019)
Q: Mario was declared in default but before A: After finality of the judgment, there are three
judgment was rendered, he decided to file a ways to assail the Judgment, which are: (a) a
motion to set aside the order of default. petition for relief under Rule 38 on the grounds of
fraud, accident, mistake or excusable negligence; (b)
a. What should Mario state in his motion in annulment of Judgment under Rule 47 for extrinsic
order to justify the setting aside of the order fraud or lack of jurisdiction; or (c) certiorari if the
of default? judgment is void on its face or by the judicial record.
(Balangcad v. Justices of the Court of Appeals, G.R. No.
A: In order to justify the setting aside of the order of 83888, February 12, 1992)
default, Mario should state in his motion that his
failure to answer was due to fraud, accident, Q: For failure of K.J. to file an answer within the
mistake or excusable negligence and that he has a reglementary period, the Court, upon motion of
meritorious defense. (Sec. 3(b) Rule 9) LM, declared KJ in default. In due time, KJ filed
an unverified motion to lift the order of default
b. In what form should such motion be? (2001 without an affidavit of merit attached to it. KJ
Bar) however attached the motion in his answer
under oath, stating in said answer his reasons
A: The motion should be under oath. (Sec. 3(b) Rule for his failure to file an answer on time, as well
9) as his defenses. Will the motion to lift the order
of default prosper? Explain. (2000 Bar)
Q: What are the available remedies of a party
declared in Default: A: Yes, there is substantial compliance with the rule.
Although the motion is unverified, the answer
a. Before the rendition of judgment; attached to the motion is verified. The answer
contains the motion to lift the order of default and
A: Before the rendition of judgment (a) he may file a the affidavit of merit should contain, which are the
motion under oath to set aside the order of default reasons of the movant’s failure to answer as well as
on the grounds of fraud, accident, mistake or his defenses. (Sec. 3[b], Rule 9; Citibank, N.A. v. Court
excusable negligence and that he has a meritorious of Appeals, G.R. No. 61508, March 17, 1999)
defense (Sec. 3[b), Rule 9); and if it is denied, he may
move to reconsider, and if reconsideration is Q: For failure to seasonably file his Answer
denied, he may file the special civil action of despite due notice, A was declared in default in
certiorari for grave abuse of discretion tantamount a case instituted against him by B. The following
to lack or excess of the lower court's jurisdiction. day, A’s mistress who is working as a clerk in the
(Sec. 1, Rule 65); or (b) he may file a petition for sala of the Judge before whom his case pending,
certiorari if he has been illegally declared in default, informed him of the declaration of default. On
e.g. during the pendency of his motion to dismiss or the same day, A presented a motion under oath
before the expiration of the time to answer. (Matute to set aside the order of default on the ground
v. CA, G.R. No. 26751, January 31, 1969; Acosta-Ofalia that his failure to answer was due to fraud and
v. Sundiam, G.R. No. L-42648, September 30, 1978) he has a meritorious defense. Thereafter, he
went abroad. After his return a week later, with
b. After judgment but before its finality; and the case still undecided, he received the order
declaring him in default. The motion to set
A: After judgment but before its finality, he may file aside default was opposed by B on the ground
a motion for new trial on the grounds of fraud, that it was filed before A received notice of his
accident, mistake, excusable negligence, or a motion having been declared in default, citing the rule
for reconsideration on the ground of excessive that the motion to set aside may be made at any
damages, insufficient evidence or the decision or time after notice but before judgment. Resolve
final order being contrary to law (See. 2, Rule 37); the Motion. (1999 Bar)
and thereafter. If the motion is denied, appeal is
available under Rules 40 or 41, whichever is A: Assuming that the motion to set aside complies
applicable. with the other requirements of the rule, it should be
granted. Although such a motion may be made after
c. After the finality of judgment? (1998, 2006 notice but before judgment (Sec. 3[b], Rule 9), with
Bar)

21
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
more reason may it be filed after discovery even foreclose the mortgage. Robert moved to
before receipt of the order of default. dismiss the complaint for lack of cause of action
as the debt was not yet due. The resolution of the
Q: Laura was the lessee of an apartment unit motion to dismiss was delayed because of the
owned by Louie. When the lease expired, Laura retirement of the judge.
refused to vacate the property. Her refusal
prompted Louie to file an action for unlawful a. On October 1, 2007, pending resolution of
detainer against Laura who failed to answer the the motion to dismiss, Arturo filed an
complaint within the reglementary period. amended complaint alleging that Robert's
debt had in the meantime become due but
Louie then filed a motion to declare Laura in that Robert still refused to pay. Should the
default. Should the motion be granted? Explain amended complaint be allowed considering
your answer. (2017 Bar) that no answer has been filed?

A: No, a Motion to declare the defendant in default A: No. Even though an amendment of complaint
is a prohibited motion in ejectment cases pursuant before answer is a matter of right, lack of a cause of
to Section 13, Rule 70. action at the commencement of the suit is not cured
by the accrual of a cause of action subsequent
Q: The plaintiff sued the defendant in the RTC for thereto, such that an amendment setting up the
the damage allegedly caused by the latter’s after-accrued cause of action is not allowed
encroachment on the plaintiff’s lot. In his (Swagman Hotel and Travel, Inc. v. Court of Appeals,
answer, the defendant denied the plaintiff’s G.R. No. 161135, April 8, 2005).
claim and alleged that it was the plaintiff who in
fact had encroached on his (defendant’s) land. b. Would your answer be different had Arturo
Accordingly, the defendant counterclaimed filed instead a supplemental complaint
against the plaintiff for damages resulting from stating that the debt became due after the
the alleged encroachment on his lot. The filing of the original complaint? (2008 Bar)
plaintiff filed an ex parte motion for extension of
time to answer the defendant’s counterclaim, A: No, because a complaint whose cause of action
but the court denied the motion on the ground has not accrued yet when filed, does not gain any
that it should have been set for hearing. On the standing in court such that no amendment, whether
defendant’s motion, therefore, the court by amended or supplemental pleading, can cure the
declared the plaintiff in default on the deficiency. The subsequent cause of action that
counterclaim. Was the plaintiff validly declared arose may only be subject of a different suit but
in default? Why? (2002 Bar) cannot be pleaded as a supplement to the complaint
where no cause action exists. Simply put, no
A: No, the plaintiff was not validly declared in amended or supplemental complaint is allowed
default. A motion for extension of time may be filed (Id.).
ex parte and need not be set for hearing. (Amante v.
Sunga, G.R. No. L-40491, May 28, 1975) Q: Daribell Inc. (Daribell) filed a complaint for
sum of money and damages against spouses
Amendment Dake and Donna Demapilis for unpaid
purchases of construction materials in the sum
Q: Arturo lent P1 Million to his friend Robert on of PhP 250,000. In their answer, spouses
the condition that Robert will execute a Demapilis admitted the purchases from
promissory note for the loan and a real estate Daribell, but alleged that they could not
mortgage over his property located in Tagaytay remember the exact amount since no copies of
City. Robert complied. In his promissory note the documents were attached to the complaint.
dated September 20, 2006, Robert undertook to They nevertheless claimed that they made
pay the loan within a year from its date at 12% previous payments in the amounts of PhP
per annum interest. In June 2007, Arturo 110,000 and PhP 20,000 and that they were
requested Robert to pay ahead of time but the willing to pay the balance of their indebtedness
latter refused and insisted on the agreement. after account verification. In a written
Arturo issued a demand letter and when Robert manifestation, spouses Demapilis stated that, in
did not comply, Arturo filed an action to order to buy peace, they were willing to pay the

22


 QuAMTO (1987-2019)
sum of PhP 250,000, but without interests and Court of Appeals, G.R. No. 121687, October 16, 1997).
costs. Subsequently, Daribell filed a Motion for This should only be true, however, when the
partial summary judgment. Thereafter, Daribell substantial change or alteration in the cause of
filed an amended complaint, alleging that the action or defense shall serve the higher interests of
total purchases of construction materials were substantial justice and prevent delay and equally
PhP 280,000 and only PhP 20,000 had been paid. promote the laudable objective of the rules which is
Daribell also served upon the spouses Demapilis to secure a just, speedy and inexpensive disposition
a request for admission asking them to admit of every action and proceeding. (Valenzuela v. Court
the genuineness of the statement of accounts, of Appeals, G.R. No. 131175, August 28, 2001)
delivery receipts and invoices, as well as the
value of the principal obligation and the amount Amendments to conform to or authorize
paid as stated in the amended complaint. presentation of evidence

Daribell thereafter amended the complaint Q: In a complaint for a sum of money filed before
anew. The amendment modified the period the MM RTC, plaintiff did not mention or even
covered and confirmed the partial payment of just hint at any demand for payment made on
PhP110,000 but alleged that this payment was defendant before commencing suit. During the
applied to the spouses’ other existing trial, plaintiff duly offered Exh. “A” in evidence
obligations. Daribell however reiterated that for the stated purpose of proving the making of
the principal amount remains unchanged. extrajudicial demand on defendant to pay
P500.000, the subject of the suit. Exh. “A” was a
a. Is the request for admission deemed letter of demand for defendant to pay said sum
abandoned or withdrawn by the filing of the of money within 10 days from receipt,
second amended complaint? addressed to and served on defendant some two
months before suit was begun. Without
A: No. The second amended complaint merely objection from defendant, the court admitted
supersedes the first amended complaint and Exh. “A” in evidence. Was the court’s admission
nothing more, pursuant to Rule 10, Section 8 of the of Exh. “A” in evidence erroneous or not?
Rules of Court; thus, the Request for Admission is Reason. (2004 Bar)
not deemed abandoned or withdrawn by the filing
of the Second Amended Complaint. (Spouses Villuga A: The court’s admission of Exhibit “A” in evidence
v. Kelly Hardware and Construction Supply, Inc., G.R. is not erroneous. It was admitted in evidence
No. 176570, July 18, 2012) without objection on the part of the defendant. It
should be treated as if it had been raised in the
b. Can the amendment of the complaint be pleadings. The complaint may be amended to
allowed if it substantially alters the cause of conform to the evidence, but if it is not so amended,
action? (2003, 2018 BAR) it does not affect the result of the trial on this issue.
(Sec. 5, Rule 10)
A: Such amendment could still be allowed when it is
sought to serve the higher interest of substantial Effect of amended pleading
justice, prevent delay, and secure a just, speedy and
inexpensive disposition of actions and proceedings. Q: X, an illegitimate child of Y, celebrated her
(Valenzuela v. Court of Appeals, G.R. No. 131175, 18th birthday on May 2, 1996. A month before
August 28, 2001) The amended complaint may be her birthday, Y died. The legitimate family of Y
allowed if it will not prejudice the rights of the refused to recognize X as an illegitimate child of
parties. Y. After countless efforts to convince them, X
filed on April 25, 2000 an action for recognition
Q: After an answer has been filed, can the against Z, wife of Y. After Z filed an answer on
plaintiff amend his complaint, with leave of August 14, 2000, X filed a motion for leave to file
court, by changing entirely the nature of the an amended complaint and a motion to admit
action? (2003 Bar) the said amended complaint impleading the
three (3) legitimate children of Y. The trial court
A: Yes. The present rules allow amendments admitted the amended complaint on August 22,
substantially altering the nature of the cause of 2000. What is the effect of the admission of the
action (Sec. 3, Rule 10; Heirs of Marcelino Pagobo v.

23
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
amended complaint? Has the action of X the loan. Charlie’s office secretary, Esther,
prescribed? Explain. (2000 Bar) received the summons at Charlie’s office. Charlie
failed to file an answer within the required
A: No. The action filed on April 25, 2000 is still period, and Alfie moved to declare Charlie in
within the four-year prescriptive period which default and to be allowed to present evidence ex
started to run on May 2, 1996. The amended parte. Ten days later, Charlie filed his verified
complaint impleading the three legitimate children, answer, raising the defense of full payment with
though admitted on August 22, 2000 beyond the interest. (2006, 2013 Bar)
four-year prescriptive period, retroacts to the date
of the filing of the original complaint. Amendments Was there proper and valid service of summons
impleading new defendants retroact to the date of on Charlie?
the filing of the complaint because they do not
constitute a new cause of action. (Verzosa v. CA, G.R. A: No. There is no showing that earnest efforts were
Nos. 119511-13, November 24, 1998) exerted to personally serve the summons on the
defendant before substituted service was resoted
SUMMONS to; the service of sumoons was improper.

Q: What is the effect of absence of summons on In an action strictly in personam like a complaint for
the judgment rendered in the case? (1999 Bar) sum of money, personal service on the defendant is
the preferred mode of service, that is, by handing a
A: The effect of the absence of summons on a copy of the summons to the defendant in person. If
judgment would make the judgment null and void defendant, for excusable reasons, cannot be served
because the court would not have jurisdiction over with summons within a reasonable period, then
the person of the defendant, unless if the defendant substituted service can be resorted to (Manotoc v.
voluntarily appeared before the court, which is Court of Appeals, G.R. No. 130974, August 16, 2006).
deemed equivalent to the service of summons. (Sec. Otherwise stated, it is only when the defendant
20, Rule 14) cannot be served personally within a reasonable
time that a substituted service may be made.
Q: When additional defendant is impleaded in (Galura v. Math-Agro Corporation, G.R. No. 167230,
the action, is it necessary that summons be August 14, 2009)
served upon him? Explain. (1999 Bar)
Since there was no prior attempt to serve the
A: Yes. Summons must be served on an additional summons in person, the substituted service to
defendant impleaded in the action so that the court Charlie’s secretary is invalid.
can acquire jurisdiction over him, unless he makes a
voluntary appearance. Q: Juan sued Roberto for specific performance.
Roberto knew that Juan was going to file the case
Q: Is summons required to be served upon a so he went out of town and temporarily stayed
defendant who was substituted for the in another city to avoid service of summons.
deceased? Explain. (1999 Bar) Juan engaged the service of Sheriff Matinik to
serve the summons but when the latter went to
A: No. A defendant who was substituted for the the residence of Roberto, he was told by the
deceased need not be served with summons caretaker thereof that his employer no longer
because it is the court which orders him as the legal resides at the house. The caretaker is a high
representative of the deceased to appear and school graduate and is the godson of Roberto.
substitute the deceased. (Sec. 16, Rule 3) Believing the caretaker’s story to be true, Sheriff
Matinik left a copy of the summons and
Substituted Service complaint with the caretaker. Was there a valid
substituted service of summons? Discuss the
Q: Alfie Bravo filed with the Regional Trial Court requirements for a valid service of summons.
of Caloocan, a complaint for a sum of money (2016 Bar)
against Charlie Delta. The claim is for
Php1.5Million. The complaint alleges that A: No, there was no valid substituted service of
Charlie borrowed the amount from Alfie and summons. In an action strictly in personam,
duly executed a promissory note as evidence of personal service on the defendant is the preferred

24


 QuAMTO (1987-2019)
mode of service, that is, by handing a copy of the service of summons by publication? Explain.
summons to the defendant in person. If defendant, (2016 Bar)
for excusable reasons, cannot be served with the
summons within a reasonable period, then A: Yes. The RTC Judge is correct in ordering the
substituted service can be resorted to. service of summons by publication. An action for
declaration of nullity of title and recovery of
In case of substituted service, the Sheriff’s Return ownership of real property, or re-conveyance, is not
must show that serious efforts or attempts were a real action but it is an action in personam, for it
exerted to personally serve the summons and that binds a particular individual only although it
said efforts failed, indicating therein: concerns the right to a tangible thing. Any judgment
therein is binding only upon the parties properly
1. The impossibility of prompt personal service impleaded. (Heirs of Lopez v. Enriquez, as cited in
within a period of thirty (30) calendar days Munoz v. Yabut G.R. No. 142676, June 6, 2011)
from issue and receipt of summons;
2. The date and time of the three (3) attempts on Under Sec. 14, Rule 14, (now Sec. 16, Rule 14) in any
at least two (2) different dates to cause personal action where the defendant is designated as an
service and the details of the inquiries made to unknown owner, or the like, or whenever his
locate the defendant residing thereat; and whereabouts are unknown and cannot be
3. The name of the person at least eighteen (18) ascertained by diligent inquiry, service may, by
years of age and of sufficient discretion residing leave of court, be effected upon him by publication
thereat, name of competent person in charge of in a newspaper of general circulation and in such
the defendant’s office or regular place of places and for such time as the court may order. This
business, or name of the officer of the rule applies to any action, whether in personam, in
homeowners’ association or condominium rem or quasi in rem (Santos v. PNOC Exploration
corporation or its chief security officer in Corporation, G.R. No. 170943, September 23, 2008).
charge of the community or building where the Clearly, since the action for re-conveyance is an
defendant may be found. (Sec. 20, Rule 14) action in personam, the RTC Judge is correct in
ordering service of summons by publication.
Q: Tristan filed a suit with the RTC of Pasay
against Arthur King and/or Estate of Arthur ALTERNATIVE ANSWER:
King for reconveyance of a lot declared in the
name of Arthur King under TCT No. 1234. The No. The RTC Judge is not correct in ordering service
complaint alleged that on account Arthur King’s of summons by publication. It is well-settled that in
residence abroad up to the present and the an action in personam wherein the defendant is a
uncertainty of whether he is still alive or dead, non-resident who does not voluntarily submit
he or his estate may be served with summons by himself to the authority of the court, personal
publication.” Summons was published and service of summons within the state is essential to
nobody filed any responsive pleading within the acquisition of jurisdiction over his or her person.
sixty (60) days therefrom. Upon motion, This method of service is possible if such defendant
Defendants were declared in default and is physicially present in the country. If he is not
judgment was rendered declaring Tristan as found therein, the court cannot acquire jurisdiction
legal owner and ordering defendants to over his person and therefor cannot validly try and
reconvey said lot to Tristan. decide the case against him (Spouses Belen v. Chavez,
G.R. No. 175334, March 26, 2008). Accordingly, the
Jojo, the court-designated administrator of RTC Judge is not correct in ordering service of
Athur King’s estate, filed a petition for summons by publication.
annulment of judgment before the CA praying
that the decision in favor of Tristan be declared MOTIONS
null and void for lack of jurisdiction. He claims
that the action filed by Tristan is an action in Omnibus motion rule
personam and that the court did not acquire
jurisdiction over defendants Arthur King and/or Q: Charisse, alleging that she was a resident of
his estate. On the other hand, Tristan claims that Lapu-Lapu City, filed a complaint for damages
the suit is an action in rem or at least an action against Atlanta Bank before the RTC of Lapu-
quasi in rem. Is the RTC judge correct in ordering Lapu City, following the dishonor of a check she

25
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
drew in favor of Shirley against her current Q: Within the period for filing a responsive
account which she maintained in the bank’s pleading, the defendant filed a motion for bill of
local branch. The bank filed a Motion to Dismiss particulars that he set for hearing on a certain
the complaint on the ground that it failed to date. However, the defendant was surprised to
state a cause of action, but it was denied. It thus find on the date set for hearing that the trial
filed an Answer. court had already denied the motion on the day
of its filing, stating that the allegations of the
In the course of the trial, Charisse admitted that complaint were sufficiently made.
she was a US citizen residing in Los Angeles,
California and that she was temporarily billeted a. Did the judge gravely abuse his discretion in
at the Pescado Hotel in Lapu-Lapu City, drawing acting on the motion without waiting for the
the bank to file another motion to dismiss, this hearing set for the motion?
time on the ground of improper venue, since
Charisse is not a resident of Lapu-Lapu City. A: No, the judge did not gravely abuse his discretion
Charisse opposed the motion citing the when he denied the motion for bill of particulars
"omnibus motion rule." Rule on the motion. without waiting for the hearing set for the motion.
Section 2, Rule 12 of the Rules of Court authorizes
A: The bank’s second motion to dismiss which is the court to either deny or grant said motion
grounded on improper venue should be denied. The outright upon the clerk of court bringing such
improper venue of an action is deemed waived by motion to the attention of the court. The motion may
the bank’s filing an earlier motion to dismiss lack merit.
without raising improper venue as an issue, and
more so when the bank filed an Answer without b. If the judge grants the motion and orders the
raising improper venue as an issue after its first plaintiff to file and serve the bill of
motion to dismiss was denied. Under the “omnibus particulars, can the trial judge dismiss the
motion rule” (Sec. 8, Rule 15, now Sec. 9, Rule 15) case if the plaintiff does not comply with the
which governs the bank’s motion to dismiss, such order? (2008 Bar)
motion should include all objections then available;
otherwise, all objections not so included shall be A: Yes, the trial judge can dismiss the case if the
deemed waived. plaintiff failed to comply with the court’s order to
file and serve the needed bill of particulars. Section
NOTE: Under the 2019 Amendments to the Rules of 4, Rule 12 authorizes the court to order the striking
Civil Procedure, motions to dismiss, including one out of the pleading affected, hence the dismissal of
on the ground of improper venue, are generally the complaint. To the same end is the provision of
prohibited. Section 3, Rule 17 of the Rules when plaintiff fails to
comply for no justifiable cause with any order of the
Motions for bill of particulars court or with the Rules.

Q: When can a bill of particulars be availed of? Q: The Republic of the Philippines (Republic)
What is the effect of non-compliance with the filed a complaint with the Sandiganbayan in
order of a bill of particulars? (2003 Bar) connection with the sequestered assets and
properties of Demo Companies Inc. (Demo) and
A: Before responding to a pleading, a party may impleaded its officers and directors. Since the
move for a bill of particulars of any matter which is complaint did not include Demo as defendant,
not averred with sufficient definiteness or the Sandiganbayan issued a resolution where it
particularity to enable him properly to prepare his ordered Demo to be impleaded. Thereafter, the
responsive pleading. If the pleading is a reply, the Republic filed an amended complaint naming
motion must be filed within ten (10) calendar days Demo as additional defendant, which
from service thereof (Sec. 1, Rule 12). If the order is amendment was later admitted. Demo filed a
not complied with, the court may order the striking motion for bill of particulars for the Republic to
out of the pleading or the portions thereof to which clarify certain matters in its amended
the order was directed or make such other order as complaint. The Sandiganbayan immediately
it deems just. (Sec. 4, Rule 12) granted the motion. Upon submission of the bill
of particulars by the Republic, Demo filed a
motion to dismiss arguing that the answers in

26


 QuAMTO (1987-2019)
the bill of particulars were indefinite and Q: What is "res judicata in prison grey"? What
deficient responses to the question of what the are the essential requisites of res judicata?
alleged illegally acquired funds or properties of (2000, 2010 Bar)
Demo were. The Sandiganbayan dismissed the
case. A: “Res judicata in prison grey" is the criminal
concept of double jeopardy, as “res judicata" is the
a. Was the Sandiganbayan correct in doctrine of civil law (Trinidad v. Office of the
dismissing the case? Ombudsman, G.R. No. 166038, December 4, 2007).
Described as “res judicata in prison grey,” the right
A: No. The Sandiganbayan is incorrect in dismissing against double jeopardy prohibits the prosecution
the case. An action cannot be dismissed on the of a person for a crime of which he has been
ground of vagueness or indefiniteness. (Galeon v. previously acquitted or convicted. The purpose is to
Galeon, G.R. L-30380, 28 February 1973) set the effects of the first prosecution forever at rest,
assuring the accused that he shall not thereafter be
ALTERNATIVE ANSWER: subjected to the danger and anxiety of a second
charge against him for the same offense (Caes v. IAC,
Yes. The Sandiganbayan was correct in dismissing G.R. Nos. 74989-90, November 6, 1989). The essential
the case. requisites of res judicata are:

Under Rule 12, Section 4, the consequence of a. The judgment or order rendered must be
insufficient compliance with the court’s order for a final;
bill of particulars or a more definite pleading is that b. The court rendering the same must have
the court may order the striking out of said pleading jurisdiction of the subject matter and of the
or the portions thereof. parties;
c. It must be a judgment or order on the
In this case, the Sandiganbayan dismissed the case merits; and
upon non-compliance with its order for a definite d. There must be between the two cases
pleading. The dismissal of the case was made by the identity of parties, identity of subject
striking out of the pleading, which in this case was matter, and identity of causes of action.
the complaint by the Republic. In striking out said (San Diego v. Cardona, G.R. No. 46655, June
pleading, no complaint existed; thus, the 27, 1940)
Sandiganbayan effectively dismissed the case.
Q: Distinguish bar by prior judgment from
The Sandiganbayan, therefore, correctly dismissed conclusiveness of judgment. (1997 Bar)
the case, as the bill of particulars was deemed
insufficient leading to the striking out of the A: Bar by prior judgment is the doctrine of res
complaint. judicata, which bars a second action when there is
identity of parties, subject matter, and cause of
b. What can the defendant, in a civil case, do in action (Sec. 47[b], Rule 39). Conclusiveness of
the event that his motion for bill of judgment precludes the relitigation of a particular
particulars is denied? (2018 BAR) issue in another action between the same parties on
a different cause of action (Sec. 47[c], Rule 39).
A: Under Rule 12, Section 5 of the Rules of Court,
after notice of denial of his motion, the moving party Grounds
may file his responsive pleading within the period
to which he was entitled at the time of filing his Q: Mariano, through his attorney-in-fact,
motion, which shall not be less than five (5) Marcos, filed with the RTC of Baguio City a
calendar days in any event. If tainted with grave complaint for annulment of sale against Henry.
abuse of discretion, the moving party may question Marcos and Henry both reside in Asin Road,
the denial through a petition for certiorari Rule 65. Baguio City, while Mariano resides in Davao City.
Henry filed a motion to dismiss the complaint on
Res judicata the ground of prematurity for failure to comply
with the mandatory barangay conciliation.
Resolve the motion with reasons. (2009 Bar)

27
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
A: The motion to dismiss should be denied because reserve the filing of a separate civil action. V
the parties in interest, Mariano and Henry, do not subsequently filed a complaint for Damages
reside in the same city/municipality, or is the against X and Y before the Regional Trial Court
property subject of the controversy situated of Pangasinan in Urdaneta where he resides. In
therein. The required conciliation/mediation before his "Certification Against Forum Shopping," V
the proper Barangay as mandated by the Local made no mention of the pendency of the
Government Code governs only when the parties to criminal case in Sta. Maria. (2010)
the dispute reside in the same city or municipality,
and if involving real property, as in this case, the a. Is V guilty of forum shopping?
property must be situated also in the same city or
municipality. A: No, V is not guilty of forum shopping because the
case the Sta. Maria, Bulacan, is a criminal action filed
Q: AB, as mother and in her capacity as legal in the name of the People of the Philippines, where
guardian of her legitimate minor son, CD, civil liability arising from the crime is deemed also
brought action for support against EF, as father instituted therewith; whereas the case filed in
of CD and AB’s lawfully wedded husband. EF Urdaneta, Pangasinan, is a civil action for quasi-
filed his answer denying his paternity with delict in the name of V and against both X and Y for
counterclaim for damages. Subsequently, AB all damages caused by X and Y to V, which may be
filed a manifestation in court that in view of the beyond the jurisdiction of MTC. Hence, the tests of
denial made by EF, it would be futile to pursue forum shopping, which is res judicata or litis
the case against EF. AB agreed to move for the pendencia, do not obtain here. Moreover,
dismissal of the complaint, subject to the substantive law (Art. 33, NCC) and Sec. 3, Rule 111,
condition that EF will withdraw his expressly authorize the filing such action for
counterclaim for damages. AB and EF filed a damages entirely separate and distinct from the
joint motion to dismiss. The court dismissed the criminal action.
case with prejudice. Later on, minor son CD,
represented by AB, filed another complaint for b. Instead of filing an Answer, X and Y move to
support against EF. EF filed a motion to dismiss dismiss the complaint for damages on the
on the ground of res judicata. Is res judicata a ground of litis pendentia. Is the motion
valid ground for dismissal of the second meritorious? Explain.
complaint? Explain your answer. (2000 Bar)
A: No, the motion to dismiss based on alleged litis
A: No, res judicata is not a defense in an action for pendencia is without merit because there is no
support even if the first case was dismissed with identity of parties and subject matter in the two
prejudice on a joint motion to dismiss. The plaintiff’s cases. Besides, Art. 33 of the Civil Code and Rule 111,
mother agreed to the dismissal of the complaint for Sec. 3 of the Rules of Criminal Procedure authorize
support in view of the defendant’s answer denying the separate civil action for damages arising from
his paternity with counterclaim for damages. This physical injuries to proceed independently.
was in the nature of a compromise of the right to
support which is prohibited by law. (Art. 2035, NCC; c. Suppose only X was named as defendant in
De Asis v. Court of Appeals, G.R. No. 127578, February the complaint for damages, may he move for
15, 1999) the dismissal of the complaint for failure of
V to implead Y as an indispensable party?
Q: X was driving the dump truck of Y along
Cattleya Street in Sta. Maria, Bulacan. Due to his A: No, X may not move for dismissal of the civil
negligence, X hit and injured V who was crossing action for damages on the contention that Y is an
the street. Lawyer L, who witnessed the incident, indispensable party who should be impleaded. Y is
offered his legal services to V. V, who suffered not an indispensable party but only a necessary
physical injuries including a fractured wrist party. At any rate, nonjoinder and misjoinder of
bone, underwent surgery to screw a metal plate parties is not a ground for dismissal of actions. (Sec.
to his wrist bone. On complaint of V, a criminal 11, Rule 3)
case for Reckless Imprudence Resulting in
Serious Physical Injuries was filed against X d. X moved for the suspension of the
before the Municipal Trial Court (MTC) of Sta. proceedings in the criminal case to await the
Maria. Atty. L, the private prosecutor, did not decision in the civil case. For his part, Y

28


 QuAMTO (1987-2019)
moved for the suspension of the civil case to a competent court. Moreover, in Ching v. Cheng (G.R.
await the decision in the criminal case. No. 175507, October 8, 2014), the Supreme Court
Which of them is correct? Explain. ruled that the following requisites should concur for
the Two-Dismissal Rule to apply:
A: Neither of them is correct. Both substantive law
(Art. 33, NCC) and procedural law (Sec. 3, Rule 111) 1. There was a previous case that was dismissed
provide for the two actions to proceed by a competent courts;
independently of each other, therefore, no 2. Both cases were based on or include the same
suspension of action is authorized. claim;
3. Both notices for dismissal were filed by the
e. Atty. L offered in the criminal case his plaintiff; and
affidavit respecting what he witnessed 4. When the motion to dismiss filed by the plaintiff
during the incident. X’s lawyer wanted to was consented to by the defendant on the
cross-examine Atty. L who, however, ground that the latter paid and satisfied all the
objected on the ground of lawyer-client claims of the former.
privilege. Rule on the objection. (2010 Bar)
In this case, the Makati City RTC had no jurisdiction
A: The objection should be overruled. Lawyer-client over the first complaint which was dismissed
privilege is not involved here. The subject on which through Agatha’s notice, because it is below its
the counsel would be examined has been made jurisdictional amount of at least P400,000.00.
public in the affidavit he offered and thus, no longer Therefore, the Two-Dismissal Rule cannot be
privileged, aside from the fact that it is in respect of successfully invoked in this case.
what the counsel witnessed during the incident and
not to the communication made by the client to him Q: Pedro and Juan are residents of Barangay
or the advice he gave thereon in his professional Ifurug, Municipality of Dupac, Mountain
capacity. Province. Pedro owes Juan the amount of
P50,000.00. Due to nonpayment, Juan brought
DISMISSAL OF ACTIONS his complaint to the Council of Elders of said
barangay which implements the bodong justice
Q: Agatha filed a complaint against Yana in the system. Both appeared before the council where
RTC in Makati City to collect P350,000.00, an they verbally agreed that Pedro will pay in
amount representing the unpaid balance on the installments on specific due dates. Pedro
price of the car Yana had bought from Agatha. reneged on his promise. Juan filed a complaint
Realizing a jurisdictional error in filing the for sum of money before the Municipal Trial
complaint in the RTC, Agatha filed a notice of Court (MTC). Pedro filed a Motion to Dismiss on
dismissal before she was served with the answer the ground that the case did not pass through
of Yana. The RTC issued an order confirming the the barangay conciliation under R.A. No. 7160
dismissal. Three months later, Agatha filed and that the RTC, not the MTC, has jurisdiction.
another complaint against Yana based on the In his opposition, Juan argued that the
same cause of action this time in the MeTC of intervention of the Council of Elders is
Makati City. However, for reasons personal to substantial compliance with the requirement
her, Agatha decided to have the complaint of R.A. No. 7160 and the claim of P50,000.00 is
dismissed without prejudice by filing a notice of clearly within the jurisdiction of the MTC. As
dismissal prior to the service of the answer of MTC judge, rule on the motion and explain.
Yana. Hence, the case was dismissed by the (2016 Bar)
MeTC. A month later, Agatha refiled the
complaint against Yana in the same MeTC. May A: As MTC judge, I would deny the motion to
Yana successfully invoke the Two-Dismissal dismiss. Under the Rules of Procedure for Small
Rule to bar Agatha’s third complaint? Explain Claims Cases, a motion to dismiss on whatever
your answer. (2017 Bar) ground is a prohibited motion. Here the complaint
falls under the coverage of the Rules of Procedure
A: No. Yana cannot successfully invoke the Two- for Small Claims Cases since the claim for sum of
Dismissal Rule. In order for the Two-Dismissal Rule money did not exceed P100,000. Hence the motion
to apply, Sec. 1, Rule 17 requires that both to dismiss filed by Pedro is a prohibited motion and
dismissals through plaintiff’s notices were made by should thus be denied.

29
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
NOTE: Pursuant to 26 February 2019 Resolution in dismissal were filed by the plaintiff; and (d) when
A.M. No. 08-8-7-SC, the jurisdictional amount for the motion to dismiss filed by the plaintiff was
small claims cases has been increased to consented to by the defendant on the ground that
P400,000.00 for the MeTCs and P300,000.00 for the latter paid and satisfied all the claims of the
MTCs, MTCCs, and MCTCs. former. (Ching v. Cheng, G.R. No. 175507, 8 October
2014)
Q: Dick Dixson had sons with different women —
(i) Dexter with longtime partner Delia and (ii) In this case, the third requisite is absent because the
Dongdong and Dingdong with his housemaid first dismissal was upon the motion to dismiss filed
Divina. When Dick fell ill in 2014, he entrusted by Dexter; hence, the two-dismissal rule will not
all his property titles and shares of stock in apply.
various companies to Delia who, in turn, handed
them to Dexter for safekeeping. After the death PRE-TRIAL
of Dick, Dexter induced Dongdong and Dingdong
to sign an agreement and waiver of their right to Q: Upon termination of the pre-trial, the judge
Dick’s estate in consideration of PhP 45 million. dictated the pre-trial order in the presence of
As Dexter reneged on his promise to pay, the parties and their counsel, reciting what had
Dongdong and Dingdong filed with the RTC of transpired and defining three (3) issues to be
Manila a complaint for annulment of the tried.
agreement and waiver. The summons and
complaint were received by Dalia, the a. If, immediately upon receipt of his copy of
housemaid of Dexter, on the day it was first the pre-trial order, plaintiff’s counsel should
served. Hence, Dexter filed a motion to dismiss move for its amendment to include a fourth
on the ground of lack of jurisdiction over his (4th) triable issue which he allegedly
person. RTC Manila granted the motion to inadvertently failed to mention when the
dismiss. judge dictated the order. Should the motion
to amend be granted? Reasons.
Dongdong and Dingdong thereafter filed a new
complaint against Dexter for annulment of the A: Depending on the merit of the issue sought to be
agreement and waiver. Before Dexter could file brought in by the amendment, the motion to amend
his answer, Dongdong and Dingdong filed a may be granted upon due hearing. It is a policy of
motion to withdraw their complaint praying the Rules of Court that parties should be afforded
that it be dismissed without prejudice. An Order reasonable opportunity to bring about a complete
was issued granting the motion to withdraw determination of the controversy between them,
without prejudice on the basis that the consistent with substantial justice. With this end in
summons had not yet been served on Dexter. view, the amendment before trial may be granted to
Dexter filed a motion for reconsideration of the prevent manifest injustice. The matter is addressed
order of dismissal. He argued that the dismissal to the sound and judicious discretion of the trial
should have been with prejudice under the “two- court.
dismissal rule” of Rule 17, Section 1 of the Rules
of Court, in view of the previous dismissal of the b. Suppose trial had already commenced and
first case. after the plaintiff’s second witness had
testified, the defendant’s counsel moves for
Will the two-dismissal rule apply making the the amendment of the pre-trial order to
second dismissal with prejudice? (2018 Bar) include a fifth (5th) triable issue vital to his
client’s defense. Should the motion be
A: No. The two-dismissal rule will not apply, granted over the objection of plaintiff’s
because the first dismissal was at the instance of the counsel? Reasons. (2009 Bar)
defendant.
A: The motion may be denied since trial had already
The requirements for the application of the two- commenced and two witnesses for the plaintiff had
dismissal rule under Sec. 1 Rule 17 are: (a) there already testified. Courts are required to issue pre-
was a previous case that was dismissed by a trial order after the pre-trial conference has been
competent court; (b) both cases were based on or terminated and before trial begins, precisely
include the same claim; (c) both notices for because the reason for such order is to define the

30


 QuAMTO (1987-2019)
course of the action during the trial. Where trial had of Deposition-Discovery Measures provides that a
already commenced, more so the adverse party had witness has to be fully examined in one day only,
already presented witnesses, to allow an subject to the court’s discretion to extend the direct
amendment would be unfair to the party who had and/or cross-examination for justifiable reasons.
already presented his witnesses. The amendment
would simply render nugatory the reason for or INTERVENTION
purpose for the pre-trial order. Sec. 7, Rule 18 on
pre-trial in civil action is explicit in allowing a Q: What are the requisites for an intervention by
modification of the pre-trial order “before” trial a non-party in an action pending in court? (2000
begins to prevent manifest injustice. Bar)

Distinction between pre-trial in civil case and A: The requisites for Intervention are:
pre-trial in criminal case
a. Legal interest in the matter in controversy; or
Q: Give three distinctions between a pre-trial in b. Legal interest in the success of either of the
a criminal case and a pre-trial in a civil case. parties; or
(1997 Bar) c. Legal interest against both; or
d. So situated as to be adversely affected by a
A: The distinctions between a pre-trial in a criminal distribution or other disposition of property
case and a pre-trial in a civil case are as follows: in the custody of the court or of an officer
thereof;
a. The pre-trial in a criminal case is conducted e. Intervention will not unduly delay or
only “where the accused and counsel agree" prejudice the adjudication of the rights of
(Rule 118, Sec. 1) while the pre-trial in a civil original parties;
case is mandatory (Sec. 1, Rule 18, now Sec. 2). f. Intervenor’s rights may not be fully protected
b. The pre-trial in a criminal case does not in a separate proceeding (Acenas v. CA, G.R.
consider the possibility of a compromise, which No. 107762, August 29, 1995; Sec. 1, Rule 19).
is one important aspect of the pre-trial in a civil
case (Sec. 2, Rule 18). MODES OF DISCOVERY
c. In a criminal case, a pre-trial agreement is
required to be reduced in writing and signed by Q: Describe briefly at least five (5) modes of
the accused and his counsel (Rule 118, Sec. 4) discovery under the Rules of Court. (2000 Bar)
while in a civil case, the agreement may be
contained in the pre-trial order (Sec. 7, Rule 18). A: The modes of discovery under the Rules of Court
are:
Q:
1. Deposition. Upon ex-parte motion of a party,
a. What is the "most important witness" rule the testimony of any person, whether a
pursuant to the 2004 Guidelines of Pretrial party or not, may be taken by deposition
and Use of Deposition-Discovery Measures? upon oral examination or written
Explain. (2016 Bar) interrogatories. (Sec. 1, Rule 23)
2. Interrogatories to parties. Under the same
A: The “most important witness” rule pursuant to conditions specified in Section 1 of Rule 23,
the 2004 Guidelines of Pre-Trial and Use of any party shall file and serve upon any
Deposition-Discovery Measures provides that the adverse party written interrogatories
judge shall, during the Pre-Trial Conference, regarding material and relevant facts to be
determine the most important witnesses to be answered by the party served. (Sec. 1, Rule
heard and limit the number of witnesses. 25)
3. Admission by adverse party. At any time
b. What is the "one day examination of after issues have been joined, a party may
witness" rule pursuant to the said 2004 file and serve upon any other party a
Guidelines? Explain. written request for the admission by the
latter of the genuineness of any material
A: The “one-day examination of a witness” rule and relevant document or of the truth of
pursuant to the 2004 Guidelines of Pretrial and Use

31
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
any material and relevant matter of fact. signed statements from the survivors. He also
(Sec. 1, Rule 26) interviewed other persons, in some instance
4. Production or inspection of documents or making memoranda. The heirs of the five (5)
things. Upon motion of any party showing victims filed an action for damages against SPS.
good cause therefor, a court may order any Plaintiffs' counsel sent written interrogatories
party to produce and permit the inspection to Atty. Ely, asking whether statements of
and copying or photographing of any witnesses were obtained; if written, copies were
designated documents, etc. or order any to be furnished; if oral, the exact provisions
party to permit entry upon designated land were to be set forth in detail. Atty. Ely refused to
or property for inspecting, measuring, comply, arguing that the documents and
surveying, or photographing the property information asked are privileged
or any designated relevant object or communication. Is the contention tenable?
operation thereon. (Sec. 1, Rule 27) Explain. (2008 Bar)
5. Physical and mental examination of persons.
In an action in which the mental or physical A: Yes, the contention of counsel for SPS is tenable
condition of a party is in controversy, the considering that he was acting in his professional
court in which the action is pending may in capacity in bringing about the statement he
its discretion order him to submit to a obtained from witnesses and the memoranda he
physical or mental examination by a made. The notes, memoranda, and writings made by
physician. (Sec. 1, Rule 28). (Answered under counsel in pursuance of his professional duty, form
the 2019 Amendments to the Rules of Civil part of his private and confidential files in the cases
Procedure) handled by him; hence privileged. (Air Philippines
Corp. v. Pennswell, Inc., G.R. No. 172835, December
Written interrogatories to adverse party 13, 2007)

Q: An heir/oppositor in a probate proceeding Q: In an admiralty case filed by A against Y
filed a motion to remove the administrator on Shipping Lines (whose principal offices are in
the grounds of neglect of duties as administrator Manila) in the RTC Davao City, the court issued a
and absence from the country. On his part the subpoena duces tecum directing Y, the president
heir/oppositor served written interrogatories of the shipping company, to appear and testify at
to the administrator preparatory to presenting the trial and to bring with him several
the latter as a witness. The administrator documents.
objected, insisting that the modes of discovery
apply only to ordinary civil actions, not special a. On what valid ground can Y refuse to comply
proceedings. Rule on the matter. (2008 Bar) with the subpoena duces tecum?

A: The administrator’s contention that the modes of A: Y can refuse to comply with the subpoena duces
discovery apply only to ordinary civil action and not tecum on the ground that he resides more than 100
to special proceedings is not correct. Sec 2, Rule 72 kilometres from the place where he is to testify, also
provides that in the absence of special provisions, known as the viatory right. (Sec. 10, Rule 21) The
the rules provided for in ordinary civil actions shall witness can also refuse to comply with the subpoena
be, as far as practicable, applicable in special duces tecum on the ground that the documents are
proceedings. There is no provision to the contrary not relevant and there was no tender of fees for one
that would preclude the application of the modes of day’s attendance and the kilometrage allowed by
discovery, specifically Interrogatories to Parties the rules.
under Rule 25 of the Rules, to probate proceedings.
b. How can A take the testimony of Y and
Q: A tugboat owned by Speedy Port Service, Inc. present the documents as exhibits other
(SPS) sank in Manila Bay while helping tow than through the subpoena from the RTC?
another vessel, drowning five (5) of the crew in (1997 Bar)
the resulting shipwreck. At the maritime board
inquiry, the four (4) survivors testified. SPS A: A can take the testimony of Y and present the
engaged Atty. Ely to defend it against potential documents as exhibits by taking his deposition
claims and to sue the company owning the other through oral examination or written interrogatories
vessel for damages to the tug. Atty. Ely obtained

32


 QuAMTO (1987-2019)
(Rule 23). He may also file a motion for the relevant matter of fact set forth in the request.
production or inspection of documents. (Rule 27) Copies of the documents shall be delivered with
the request unless copies have already been
Q: furnished. (Sec. 1, Rule 26)
2. Each of the matters of which an admission is
a. Briefly explain the procedure in requested shall be deemed admitted unless,
“Interrogatories to Parties” under Rule 25 within a period designated in the request,
and state the effect of failure to serve which shall not be less than fifteen (15)
written interrogatories. calendar days after service thereof, or within
such further time as the court may allow on
A: motion, the party to whom the request directed
1. Any party desiring to elicit material and files and serves upon the party requesting the
relevant facts from any adverse parties shall file admission a sworn statement either denying
and serve upon the latter written specifically the matters of which an admission
interrogatories to be answered by the party is requested or setting forth in detail the
served or, if the party served is a public or reasons why he cannot truthfully either admit
private corporation or a partnership or or deny those matters.
association, by any officer thereof competent to 3. Objections to any request for admission shall be
testify in its behalf. (Section 1, Rule 25) submitted to the court by the party requested
2. The interrogatories shall be answered fully in within the period for and prior to the filing of
writing and shall be signed and sworn to by the his sworn statement as contemplated in the
person making them. The party upon whom the preceding paragraph and his compliance
interrogatories have been served shall file and therewith shall be deferred until such
serve a copy of the answers on the party obligations are resolved, which resolution shall
submitting the interrogatories within fifteen be made as early as practicable. (Sec. 2, Rule 26)
(15) days after service thereof, unless the court 4. Any admission made by a party pursuant to
on motion and for good cause shown, extends such request is for the purpose of the pending
or shortens the time. (Section 2, Rule 25) action only and shall not constitute an
3. Objections to any interrogatories may be admission by him for any other purpose nor
presented to the court within ten (10) calendar may the same be used against him in any other
days after service thereof, with notice as in case proceeding. (Sec. 3, Rule 26)
of a motion; and answers shall be deferred until 5. Unless otherwise allowed by the court for good
the objections are resolved, which shall be at as cause shown and to prevent a failure of justice,
early a time as is practicable. (Sec. 3, Rule 25) a party who fails to file and serve a request for
4. Should a party fail to file and serve written admission on the adverse party of material and
interrogatories on an adverse party, he cannot relevant facts at issue which are or ought to be,
compel the latter to give testimony in open within the personal knowledge of the latter,
court or to give deposition pending appeal, shall not be permitted to present evidence on
unless allowed by the court for good cause such facts. (Sec. 5, Rule 26)
shown and to prevent failure of justice. (Sec. 6,
Rule 25; Spouses Afulugencia v. Metrobank, G.R. Production or inspection of documents or things
No. 185145, February 5, 2014)
Q: Continental Chemical Corporation (CCC) filed
b. Briefly explain the procedure on “Admission a complaint for a sum of money against Barstow
by Adverse Party” under Rule 26 and the Trading Corporation (BTC) for the latter’s
effect of failure to file and serve the request. failure to pay for its purchases of industrial
(2016 Bar) chemicals. In its answer, BTC contended that it
refused to pay because CCC misrepresented that
A: the products it sold belonged to a new line, when
1. At any time after issues have been joined, a in fact they were identical with CCC’s existing
party may file and serve upon any party a products. To substantiate its defense, BTC filed
written request for the admission by the latter a motion to compel CCC to give a detailed list of
of the genuineness of any material and relevant the products’ ingredients and chemical
document described in and exhibited with the components, relying on the right to avail of the
request or of the truth of any material and modes of discovery allowed under Rule 27. CCC

33
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
objected, invoking confidentiality of the Physical and mental examination of persons
information sought by BTC. Resolve BTC’s
motion with reasons. (2009 Bar) Q: Ernie filed a petition for guardianship over
the person and properties of his father, Ernesto.
A: I will deny the motion. The ingredients and Upon receipt of the notice of hearing, Ernesto
chemical components of CCC’s products are trade filed an opposition to the petition. Ernie, before
secrets within the contemplation of the law. Trade the hearing of the petition, filed a motion to
secrets may not be the subject of compulsory order Ernesto to submit himself for mental and
disclosure by reason of their confidential and physical examination which the court granted.
privileged character. Otherwise, CCC would
eventually be exposed to unwarranted business After Ernie's lawyer completed the presentation
competition with others who may imitate and of evidence in support of the petition and the
market the same kinds of products in violation of court's ruling on the formal offer of evidence,
CCC’s proprietary rights. Being privileged, the Ernesto's lawyer filed a demurrer to evidence.
detailed list of ingredients and chemical Ernie's lawyer objected on the ground that a
components may not be the subject of mode of demurrer to evidence is not proper in a special
discovery under Sec. 1, Rule 27 which expressly proceeding.
makes privileged information an exception from its
coverage. (Air Philippines Corporation v. Pennswell, If Ernesto defies the court's order directing him
Inc., G.R. No. 172835, December 13, 2007) to submit to physical and mental examinations,
can the court order his arrest? (2015 Bar)
Q: The plaintiff sued the defendant in the RTC to
collect on a promissory note, the terms of which A: If the order for the conduct of physical and mental
were stated in the complaint and a photocopy examination is issued as a mode of discovery and
attached to the complaint as an annex. Before Ernesto defies the said order, the court cannot
answering, the defendant filed a motion for an validly order his arrest (Sec. 3[d], Rule 29).
order directing the plaintiff to produce the
original of the note so that the defendant could DEMURRER TO EVIDENCE
inspect it and verify his signature and the
handwritten entries of the dates and amounts. Q: AX, a Makati-bound paying passenger of PBU,
a public utility bus, died instantly on board the
a. Should the judge grant the defendant’s bus on account of the fatal head wounds he
motion for production and inspection of the sustained as a result of the strong impact of the
original of the promissory note? Why? collision between the bus and a dump truck that
happened while the bus was travelling on EDSA
A: Yes, because upon motion of any party showing towards Makati. The foregoing facts, among
good cause, the court in which the action is pending others, were duly established on evidence-in-
may order any party to produce and permit the chief by the plaintiff TY, sole heir of AX, in TY’s
inspection of designated documents (Rule 27). The action against the subject common carrier for
defendant has the right to inspect and verify the breach of contract of carriage. After TY had
original of the promissory note so that he could rested his case, the common carrier filed a
intelligently prepare his answer. demurrer to evidence, contending that
plaintiff’s evidence is insufficient because it did
b. Assuming that an order for production and not show (1) that defendant was negligent and
inspection was issued but the plaintiff failed (2) that such negligence was the proximate
to comply with it, how should the defendant cause of the collision. Should the court grant or
plead to the alleged execution of the note? deny defendant’s demurrer to evidence? Reason
(2002 Bar) briefly. (2004 Bar)

A: The defendant may file a motion to dismiss the A: No. The Court should not grant defendant’s
complaint because of the refusal of the plaintiff to demurrer to evidence because the case is for breach
obey the order of the court for the production and of contract of carriage. Proof that the defendant was
inspection of the promissory note. (Sec. 3(c), Rule negligent and that such negligence was the
29) proximate cause of the collision is not required.
(Arts. 1170 and 2201, NCC; Mendoza v. Phil Airlines,

34


 QuAMTO (1987-2019)
Inc., G.R. No. L- 3678, February 29, 1952; Batangas acquitted and the prosecution cannot appeal. If the
Transportation Co. v. Caguimbal, G.R. No. L-22985, accused does not obtain leave of court and his
January 24, 1968; Abeto v. PAL, G.R. No. L-28692, July demurrer to evidence is denied, he is deemed to
30, 1982) have waived his right to present evidence and the
case is decided on the basis of the evidence for the
Waiver of right to present evidence prosecution. The court may also dismiss the action
on the ground of insufficiency of the evidence on its
Q: Carlos filed a complaint against Pedro in the own initiative after giving the prosecution the
RTC of Ozamis City for the recovery of the opportunity to be heard. (Sec. 23, Rule 119)
ownership of a car. Pedro filed his answer
within the reglementary period. After the pre- Q: Ernie filed a petition for guardianship over
trial and actual trial, and after Carlos has the person and properties of his father, Ernesto.
completed the presentation of his evidence, Upon receipt of the notice of hearing, Ernesto
Pedro moved for the dismissal of the complaint filed an opposition to the petition. Ernie, before
on the ground that under the facts proven and the hearing of the petition, filed a motion to
under the law applicable to the case, Carlos is order Ernesto to submit himself for mental and
not entitled to the ownership of the car. The RTC physical examination which the court granted.
granted the motion for dismissal. Carlos
appealed the order of dismissal and the After Ernie's lawyer completed the presentation
appellate court reversed the order of the trial of evidence in support of the petition and the
court. Thereafter, Pedro filed a motion with the court's ruling on the formal offer of evidence,
RTC asking the latter to allow him to present his Ernesto's lawyer filed a demurrer to evidence.
evidence. Carlos objected to the presentation of Ernie's lawyer objected on the ground that a
evidence by Pedro. Should the RTC grant Pedro’s demurrer to evidence is not proper in a special
motion to present evidence his evidence? Why? proceeding. Was Ernie's counsel's objection
(2001 Bar) proper? (2015 Bar)

A: No. Pedro’s motion should be denied. The Rules A: No. In Matute v. Court of Appeals (G.R. No. 26751,
provide that if the motion for dismissal is granted by January 31, 1969), the Supreme Court has held that
the trial court but on appeal the order of dismissal the rule on demurrer to evidence is applicable in
is reversed, he shall be deemed to have waived the special proceedings. Moreover, under Sec 2, Rule 72,
right to present evidence. (Sec. 1, Rule 33) in the absence of special rules, the rules provided for
in ordinary actions shall be applicable, as far as
Demurrer to evidence in a civil case vs. practicable, to special proceedings.
Demurrer to evidence in a criminal case
JUDGMENTS AND FINAL ORDERS
Q: Compare the effects of denial of demurrer to
evidence in a civil case with those of a denial of Q: What is the difference between a judgment
demurrer to evidence in a criminal case. (2003 and an opinion of the court? (2006 Bar)
Bar)
A: The judgment or fallo is the final disposition of
A: In a civil case, the defendant has the right to file a the court which is reflected in the dispositive
demurrer to evidence without leave of court. If his portion of the decision, while the opinion of the
demurrer is denied, he has the right to present court is contained in the body of the decision that
evidence. If his demurrer is granted and on appeal serves as a guide or enlightenment to determine the
by the plaintiff, the appellate court reverses the ratio decidendi of the decision.
order and renders judgment for the plaintiff, the
defendant loses his right to present evidence. (Rule Judgment on the pleadings
33)
Q: What are the grounds for judgment on the
In a criminal case, the accused has to obtain leave of pleadings? (1999 Bar)
court to file a demurrer to evidence. If he obtains
leave of court and his demurrer to evidence is A: The grounds for judgment on the pleadings are:
denied, he has the right to present evidence in his (a) where an answer fails to tender an issue, or (b)
defense. If his demurrer to evidence is granted, he is

35
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
otherwise admits the material allegations of the allegations stated in the complaint, what should
adverse party’s pleading. (Sec. 1, Rule 34) plaintiff do? (2012 Bar)

Q: A brought an action against her husband B for A: The plaintiff should file a Motion for Judgment on
annulment of their marriage on the ground of the Pleadings because the failure of the defendant to
psychological incapacity, B filed his Answer to answer a request for admission results to an implied
the Complaint admitting all the allegations admission of all the matters which an admission is
therein contained. May A move for judgment on requested. Hence, a motion for judgment on the
the pleadings? Explain. (1999 Bar) pleadings is the appropriate remedy where the
defendant is deemed to have admitted matters
A: No, because even if B’s answer to A’s complaint contained in the request for admission by the
annulment of their marriage admits all the plaintiff. (Rule 34, in relation to Sec. 2, Rule 26)
allegations therein contained, the material facts
alleged in the complaint must always be proved Q: Plaintiff sued defendant for collection of P1
(Sec. 1, Rule 34). The court shall order the million based on the latter's promissory note.
prosecutor to investigate whether or not a collusion The complaint alleges, among others:
between the parties exists, and if there is no
collusion, to intervene for the State in order to see 1. Defendant borrowed Php 1 million from
to it that the evidence submitted is not fabricated. plaintiff as evidenced by a duly executed
(Sec. 3[e], Rule 9) promissory note;
2. The promissory note reads:
Q: In a complaint for recovery of real property,
the plaintiff averred, among others, that he is "Makati, Philippines Dec. 30, 2014
the owner of the said property by virtue of a
deed of sale executed by the defendant in his For value received from plaintiff,
favour. Copy of the deed of sale was appended to defendant promises to pay plaintiff 1
the complaint as Annex “A” thereof. In his million, twelve (12) months from the
unverified answer, the defendant denied the above indicated date without necessity
allegation concerning the sale of the property in of demand.
question, as well as the appended deed of sale,
for lack of knowledge or information sufficient Signed Defendant
to form a belied as to the truth thereof. Is it
proper for the court to render judgment without A copy of the promissory note is attached as
trial? Explain (2005 Bar) Annex “A.”

A: Yes. Defendant cannot deny the sale of the Defendant, in his verified answer, alleged
property for lack of knowledge or information among others:
sufficient to form a belied as to the truth thereof.
The answer amounts to an admission. The 1. Defendant specifically denies the
defendant must aver or state positively how it is allegation in paragraphs 1 and 2 of the
that he is ignorant of the facts alleged (Phil. complaint, the truth being defendant did
Advertising Counselors, Inc. v. Revilla, G.R. No. L- not execute any promissory note in favor of
31869, August 8, 1973; Sec. 10, Rule 8). Moreover, the plaintiff, or
genuineness and due execution of the deed of sale 2. Defendant has paid the 1 million claimed in
can only be denied by the defendant under oath and the promissory note (Annex "A" of the
failure to do so is also an admission of the deed (Sec. Complaint) as evidenced by an
8, Rule 8). Hence, a judgment in the pleadings can be "Acknowledgment Receipt" duly executed
rendered by the court without need of a trial. by plaintiff on January 30, 2015 in Manila
with his spouse signing as witness.
Q: Plaintiff files a request for admission and
serves the same on Defendant who fails, within A copy of the "Acknowledgment Receipt" is
the time prescribed by the rules, to answer the attached as Annex "1" hereof.
request. Suppose the request for admission
asked for the admission of the entire material Plaintiff filed a motion for judgment on the
pleadings on the ground that defendant's

36


 QuAMTO (1987-2019)
answer failed to tender an issue as the must be given the benefit of all favourable
allegations therein on his defenses are sham for inferences as can reasonably be drawn from the
being inconsistent; hence, no defense at all. evidence. (Smart Communications v. Aldecoa, G.R.
Defendant filed an opposition claiming his No. 166330, September 11, 2013)
answer tendered an issue.
Q: Ms. A filed a complaint for damages against
a. Is judgment on the pleadings proper? Ms. B, alleging that Ms. B negligently caused the
demolition of her house's concrete fence, the top
A: No, the judgment on the pleadings is not proper. half of which fell on the front portion of Ms. A's
Judgment on the pleading is proper only when the car and permanently damaged its engine. In her
answer fails to tender an issue, or otherwise admits answer, Ms. B denied any personal liability for
the material allegations of the adverse party’s the damage caused to Ms. A's car, averring that
pleading. (Sec. 1, Rule 34) she merely acquiesced to the advice of her
contractor, XYZ Construction Co., to have the
When it appears, however, that not all the material concrete fence demolished. Thus, damages, if
allegations of the complaint were admitted in the any, should be collected from it.
answer, because some of them were either denied
or disputed, and the defendant has set up certain Thereafter, Ms. A filed a motion for judgment on
special defenses which, if proven, would have the the pleadings, alleging that Ms. B's statement in
effect of nullifying plaintiff’s main cause of action, her answer is actually a negative pregnant. Ms. B
judgment on the pleadings cannot be rendered. opposed the motion, reiterating her defense in
(PNB v. Aznar, G.R. No. 17105, May 30, 2011) her answer which purportedly rendered
judgment on the pleadings improper. Ms. B also
Clearly, since the defendant’s verified Answer moved for the dismissal of the case on the
specifically denied the execution of the promissory ground of non-joinder of XYZ Construction Co.,
note, or raised the affirmative of payment, judgment which she alleged is an indispensable party to
on the pleading is not proper. the case.

b. Defendant filed a motion for summary a. Is Ms. A's motion for judgment on the
judgment on the ground that there are no pleadings proper? Explain. (2019 Bar)
longer any triable genuine issues of facts.
Should the court grant defendant's motion A: Yes. When an answer fails to tender an issue, or
for summary judgment? (2015 Bar) otherwise admits the material allegations of the
adverse party’s pleading, judgment on the pleadings
A: No, the court should not grant the motion for is appropriate. The rule is stated in Section 1, Rule
summary judgment because the defense of payment 34 of the Rules of Court. In this relation,
is a genuine issue as to material fact that must be jurisprudence dictates that an answer fails to tender
resolved by the court upon presentation of an issue it does not comply with the requirements
evidence. of a specific denial as set out in Section 8 and 10,
Rule 8, resulting in the admission of the material
For a summary judgment to be proper, the movant allegations of the adverse party’s pleadings.
must establish two requisites: (a) there must be no
genuine issue as to any material fact, except for the As such, it is a form of judgment that is exclusively
amount of damages; and (b) the party presenting based on the submitted pleadings without the
the motion for summary judgment must be entitled introduction of evidence as the factual issues
to a judgment as a matter of law. A genuine issue is remain uncontroverted as in the case of Ms. B.
an issue of fact which requires the presentation of (Government Service Insurance System v. Prudential
evidence as distinguished from an issue which is Guarantee and Assurance, Inc., G.R. No. 165585,
sham, fictitious, contrived or false claim. November 20, 2013).

Relative thereto, when the facts pleaded by the Summary judgment v. Judgment on the
parties are disputed or contested, proceedings for a Pleadings
summary judgment cannot take place of a trial. The
evidence on record must be viewed in light most Q: Royal Bank (Royal) filed a complaint for a
favourable to the party opposing the motion who sum of money against Ervin and Jude before the

37
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
RTC of Manila. The initiatory pleading averred that not all the material allegations of the complaint
that on February 14, 2010, Ervin obtained a loan were admitted in the answer for some of them were
from Royal in the amount of P1 million, as either denied or disputed, and the defendant has set
evidenced by Promissory Note No. 007 (PN) up certain special defenses which, if proven, would
signed by Ervin. Jude signed a Surety Agreement have the effect of nullifyinf plaintiff’s main cause of
binding herself as surety for the loan. Royal action, judgment on the pleadings cannot be
made a final demand on February 14, 2015 for rendered (PNB v. Aznar, G.R. No. 171805, May 30,
Ervin and Jude (defendants) to pay, but the 2011).
latter failed to pay. Royal prayed that
defendants Ervin and Jude be ordered to pay the b. Distinguish “Summary Judgment” and
amount of P1 million plus interests. “Judgment on the Pleadings.”

In their answer, Ervin admitted that he obtained A: What distinguishes a judgment on the pleadings
the loan from Royal and signed the PN. Jude also from a summary judgment is the presence of issues
admitted that she signed the Surety Agreement. in the Answer to the Complaint. When the Answer
Defendants pointed out that the PN did not fails to tender any issue, that is, if it does not deny
provide the due date for payment, and that the the material allegations in the complaint or admits
loan has not yet matured as the maturity date said material allegations of the adverse party’s
was left blank to be agreed upon by the parties pleading by admitting the truthfulness thereof
at a later date. Defendants filed a Motion for a and/or omitting to deal with them at all, a
Judgment on the Pleadings on the ground that judgement on the pleadings is appropriate.
there is no genuine issue presented by the
parties’ submissions. Royal opposed the motion On the other hand, when the Answer specifically
on the ground that the PN’s maturity is an issue denies the material averments of the complaint or
that must be threshed out during trial. asserts affirmative defenses, or in other words
raises an issue, a summary judgment is proper
a. Resolve the motion with reasons. provided that the issue raised is not genuine. A
genuine issue means an issue of face which calls for
A: The motion for judgment on the pleadings should the presentation of evidence, as distinguished from
be denied. an issue which is fictitious or contrived or which
does not constitute a genuine issue for trial. (Basbas
First, judgment on the pleadings is available to the v. Sayson, G.R. No. 172660, August 24, 2011)
plaintiff and not to the defendant.
POST-JUDGMENT REMEDIES
Second, judgment on the pleadings is proper only
when the Answer fails to tender any issue, that is, if Matters not appealable
it does not deny the material allegations in the
complaint or admits said material allegations of the Q: What is an interlocutory order? (2006 Bar)
adverse party’s pleadings by admitting the
truthfulness thereof and/or omitting to deal with A: An interlocutory order is an order which decides
them at all. some point or matter between the commencement
and end of the suit but it is not the final decision on
Here, while the defendants’ Answer to the the whole controversy. It leaves something to be
Complaint practically admitted all the material done by the court before the case is finally decided
allegations therein, it nevertheless asserts the on the merits. (Metropolitan Bank&. Trust Co. v. CA,
affirmative defenses that the loan is not yet due. As G.R. No. 110147, April 17, 2001; Gallardo v. People,
issues obviuously arise from these affirmative G.R. No. 142030, April 21, 2005)
defences, a judgment on the pleadings is clearly
improper in this case. Q: After defendant has served and filed his
answer to plaintiff’s complaint for damages
Besides, it should be emphasized that judgement on before the proper RTC, plaintiff served and filed
the pleadings is based exclusively upon the a motion (with supporting affidavits) for a
allegations appearing in the pleadings of the parties summary judgment in his favour upon all of his
and the annexes, if any, without consideration of claims. Defendant served and filed his
any evidence aliunde. Henceforth, when it appears opposition (with supporting affidavits) to the

38


 QuAMTO (1987-2019)
motion. After due hearing, the court issued an to which the appeal is being taken; and stating the
order (1) stating that the court has found no material dates showing the timeliness of the appeal.
genuine issue as to any material fact and thus The notice of appeal shall be filed with the RTC
concluded that plaintiff is entitled to judgment which rendered the judgment appealed from and
in his favour as a matter of law except as to the copy thereof shall be served upon the adverse party
amount of damages recoverable, and (2) within 15 days from notice of judgment or final
accordingly ordering that plaintiff shall have order appealed from. But if the case admits of
judgment summarily against defendant for such multiple appeals or is a special proceeding, a record
amount as may be found due plaintiff for on appeal is required aside from the written notice
damages, to be ascertained by trial on October 7, of appeal to perfect the appeal, in which case the
2004, at 8:30 o’clock in the morning. May period for appeal and notice upon the adverse party
defendant properly take an appeal from said is not only 15 days but 30 days from notice of
order? Or, may defendant properly challenge judgment or final order appealed from. The full
said order thru a special civil action for amount of the appellate court docket fee and other
certiorari? Reason. (2004 Bar) lawful fees required must also be paid within the
period for taking an appeal, to the clerk of the court
A: No, plaintiff may not properly take an appeal which rendered the judgment or final order
from said order because partial summary appealed from (Secs. 4 and 5, Rule 41). The periods
judgments are interlocutory orders. There is still of 15 or 30 days above-stated are non-extendible.
something to be done, which is the trial for the
adjudication of damages (Province of Pangasinan v. In cases decided by the Regional Trial Court in the
Court of Appeals,G.R. No. 104266, March 31, 1993; exercise of its appellate jurisdiction, appeal to the
Guevarra v. Court of Appeals,G.R. No. L-49017 and L- Court of Appeals shall be by filing a verified petition
49024, August 30, 1983). But the defendant may for review with the Court of Appeals and furnishing
properly challenge said order through a special civil the RTC and the adverse party with copy thereof,
action for certiorari. (Sec. 1 [c] and last par. Rule 41) within 15 days from notice of judgment or final
order appealed from. Within the same period for
Modes of Appeal appeal, the docket fee and other lawful fees required
with the deposit for cost should be paid. The 15-day
Q: What are the modes of appeal to the Supreme period maybe extended for 15 days and another 15
Court? (2002 Bar) days for compelling reasons.

A: The modes of appeal to the Supreme Court are: Q: What is the mode of appeal applicable to the
(a) appeal by certiorari on pure questions of law following cases, and what issues may be raised
under Rule 45 through a petition for review on before the reviewing court/tribunal? (2017
certiorari; and (b) ordinary appeal in criminal cases Bar)
through a notice of appeal from convictions
imposing reclusion perpetua or life imprisonment a. The decision or final order of the National
or where a lesser penalty is involved but for Labor Relations Commission.
offenses committed on the same occasion or which
arose out of the same occurrence that gave rise to A: There is no mode of appeal from a decision or
the more serious offense (Sec. 3, Rule 122). final order of the NLRC, since such decision or final
Convictions imposing the death penalty are order is final and executory pursuant to the Labor
elevated through automatic review. Code (Art. 223). The remedy of the aggrieved party
is to file a special civil action for certiorari with the
Q: Distinguish the two (2) modes of appeal from Court of Appeals (St. Martin Funeral Home v. NLRC,
the judgment of the Regional Trial Court to the G.R. No. 103866, September 16, 1998). Such special
Court of Appeals. (2009 Bar) civil action may raise questions both of fact and law
(Aggabao v. COMELEC, G.R. No. 163756, January 26,
A: In cases decided by the Regional Trial Courts in 2005).
the exercise of their original jurisdiction, appeals to
the Court of Appeals shall be ordinary appeal by b. The judgment or final order of the RTC in the
filing written notice of appeal indicating the parties exercise of its appellate jurisdiction.
to the appeal; specifying the judgment/final order
or part thereof appealed from; specifying the court

39
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
A: The mode of appeal applicable to judgments or allow a Fresh Period of 15 days within which to file
final orders of the RTC in the exercise of its appellate the notice of appeal in the RTC, counted from receipt
jurisdiction is a petition for review under Rule 42. of the order dismissing a motion for a new trial or
The petition may raise questions both of fact and motion for reconsideration. (Neypes v. Court of
law. (Sec. 2, Rule 42) Appeals, G.R. No. 121524, September 14, 2005)

Period of appeal Q: XXX received a copy of the RTC decision on
June 9, 1999; YYY received it on the next day,
Q: Defendant X received an adverse Decision of June 10, 1999. XXX filed a Notice of Appeal on
the RTC in an ordinary civil case on 02 January June 15, 1999. The parties entered into a
2003. He filed a Notice of Appeal on 10 January compromise on June 16, 1999. On June 13, 1999,
2003. On the other hand, plaintiff A received the YYY, who did not appeal, filed with the RTC a
same Decision on 06 January 2003 and, on 19 motion for approval of the Compromise
January 2003, filed a Motion for Agreement. XXX changed his mind and opposed
Reconsideration of the Decision. On 13 January the motion on the ground that the RTC has no
2003, defendant X filed a Motion withdrawing more jurisdiction. Rule on the motion assuming
his notice of appeal in order to file a Motion for that the records have not yet been forwarded to
New Trial which he attached. On January 2003, the CA. (1999 Bar)
the court denied A’s Motion to Withdraw Notice
of Appeal. Plaintiff A received the Order denying A: The contention of XXX that the RTC has no more
his Motion for Reconsideration on 03 February jurisdiction over the case is not correct because at
2003 and filed his Notice of Appeal on 05 the time that the motion to approve the compromise
February 2003. The court denied due course to had been filed, the period of appeal of YYY had not
A’s Notice of Appeal on the ground that the yet expired, the records of the case had not yet been
period to appeal already lapsed. forwarded to the Court of Appeals. The rules
provide that in appeals by notice of appeal, the court
a. Is the court’s denial of X’s Motion to loses jurisdiction over the case upon the perfection
Withdraw Notice of Appeal proper? of the appeals filed in due time and the expiration of
the time to appeal of the other parties The rules also
A: No, the court’s denial of X’s Motion to Withdraw provide that prior to the transmittal of the record,
Notice of Appeal is not proper, because the period of the court may, among others, approve
appeal of X has not yet expired. From January 2, compromises. (Sec. 9, Rule 41)
2003 when X received a copy of the adverse decision
up to January 13, 2003 when he filed his withdrawal Perfection of appeal
of appeal and Motion for New Trial, only ten (10)
days had elapsed and he had fifteen (15) days to do Q: When is an appeal from the RTC to the Court
so. of Appeals deemed perfected? (1999 Bar)

b. Is the court’s denial of due course to A’s A: An appeal from the Regional Trial Court to the
appeal correct? (2003 Bar) Court of Appeals is deemed perfected as to the
appellant upon the filing of a notice of appeal in the
A: No, the court’s denial of due course to A’s appeal Regional Trial Court in due time or within the
is not correct because the appeal was taken on time. reglementary period of appeal. An appeal by record
From January 6, 2003 when A received a copy of the on appeal is deemed perfected as to the appellant
decision up to January 19, 2003 when he filed a with respect to the subject matter thereof upon the
Motion for Reconsideration, only twelve (12) days approval of the record on appeal filed in due time.
had lapsed. Consequently, he had three (3) days (Sec. 9, Rule 4)
from receipt on February 2003 of the Order denying
his Motion for Reconsideration within which to Appeal from judgments or final orders of the
appeal. He filed his notice of appeal February 5, MTC; Appeal from judgments or final orders of
2003, or only two (2) days later. the RTC; Appeal from judgments or final orders
of the CTA
NOTE: To standardize the appeal periods provided
in the Rules and to afford litigants fair opportunity Q: Where and how will you appeal the following:
to appeal their cases, the Court deems it practical to

40


 QuAMTO (1987-2019)
a. An order of execution issued by the RTC. decision when the monetary awards were reduced
in the amended decision and in effect the amended
A: A petition for certiorari under Rule 65 before the decision superseded the original decision. A new
Court of Appeals. notice of appeal is required to comply with the
required contents thereof in respect of the amended
b. Judgment of RTC denying a petition for Writ decision. (Pacific Life Assurance Corporation v. Sison,
of Amparo. G.R. No. 122839, November 20, 1998; Magdalena
Estates, Inc. v. Caluag,G.R. No. L-16250, June 30,
A: Any party may appeal from the final judgment or 1964)
order to the Supreme Court by way of a petition for
review on certiorari under Rule 45 of the Rules of Q: On July 15, 2009, Atty. Manananggol was
Court. The period of appeal shall be five (5) working served copies of numerous unfavorable
days from the date of notice of the adverse judgments and orders. On July 29, 2009, he filed
judgment, and the appeal may raise questions of fact motions for reconsideration which were denied.
or law or both. (Sec. 19, Rule on the Writ of Amparo, He received the notices of denial of the motions
A.M. No. 07- 9-12-SC, September 25,2007) for reconsideration on October 2, 2009, a Friday.
He immediately informed his clients who, in
c. Judgment of MTC on a land registration case turn, uniformly instructed him to appeal. How,
based on its delegated jurisdiction. when and where should he pursue the
appropriate remedy for each of the following:
A: The appeal should be filed with the Court of
Appeals by filing a Notice of Appeal within 15 days a. Judgment of a Municipal Trial Court (MTC)
from notice of judgment or final order appealed pursuant to its delegated jurisdiction
from. (Sec. 34, B.P. Blg. 129, as by Republic Act No. dismissing his client’s application for land
7691) registration?

d. A decision of the Court of Tax Appeal's First A: By notice of appeal, within 15 days from notice of
Division. (2012 Bar) judgment or final order appealed from, to the Court
of Appeals.
A: The decision of the Court of Tax Appeals Division
may be appealed to the CTA en banc. The decisions b. Judgment of the Regional Trial Court (RTC)
of the Court of Tax Appeals are no longer appealable denying his client’s petition for a Writ of
to the Court of Appeals. Under the modified appeal Habeas Data?
procedure, the decision of a division of the CTA may
be appealed to the CTA en banc. The decision of the A: By verified petition for review on certiorari under
Rule 45, with the modification that appellant may
CTA en banc may in turn be directly appealed to the raise questions of fact or law or both, within 5 work
Supreme Court by way of a petition for review on days from date of notice of the judgment or final
certiorari under Rule 45 on questions of law. order to the Supreme Court. (Sec. 19, A.M. No. 08-1-
(Section 11, R.A. No. 9282) 16-SC)

Q: After receiving the adverse decision rendered c. Order of a Family Court denying his client’s
against his client, the defendant, Atty. Sikat duly petition for habeas corpus in relation to
filed a notice of appeal. For his part, the plaintiff custody of a minor child?
timely filed a motion for partial new trial to seek
an increase in the monetary damages awarded. A: By notice of appeal, within 48 hours from notice
The RTC instead rendered an amended decision of judgment or final order to the Court of Appeals.
further reducing the monetary awards. Is it (Sec. 14, R.A. No. 8369 in relation to Sec. 3, Rule 41)
necessary for Atty. Sikat to file a second notice of
appeal after receiving the amended decision? d. Order of the RTC denying his client’s
(2008 Bar) Petition for Certiorari questioning the
Metropolitan Trial Court’s (MeTC’s) denial
A: Yes, it is necessary for Atty. Sikat to file a second of a motion to suspend criminal
notice of appeal to the amended decision because a proceedings?
substantial change was made to the original

41
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
A: By notice of appeal, within 15 days from notice of Rule 70 provides that the RTC judgment against the
the finalOrder, to the Court of Appeals. (Magestrado defendant shall be immediately executory, without
v. People, G.R. No. 148072, July 7, 2007) prejudice to a further appeal that may be taken
therefrom. (Uy v. Santiago, G.R. No. 131237, July 31,
e. Judgment of the First Division of the Court of 2000)
Tax Appeals (CTA) affirming the RTC
decision convicting his client for violation of Q: Judgment was rendered against defendant
the National Internal Revenue Code? (2009 Jaypee in an action for unlawful detainer. The
Bar) judgment ordered Jaypee to vacate and to pay
attorney's fees in favor of Bart, the plaintiff. To
A: By petition for review filed with the CTA en banc, prevent the immediate execution of the
within 30 days from receipt of the decision or ruling judgment, would you advise the posting of a
in question. (Sec. 9[b], Rule 9, Revised Rulesof Court supersedeas bond as counsel for Jaypee?
of Tax Appeals)
A: No, as counsel for Jaypee I would not advise the
Relief from judgments, orders and other posting of a supersedeas bond. Under the Rule 70, a
proceedings supersedeas bond is necessary to prevent
immediate execution only if the judgment awarded
Q: Mike was renting an apartment unit in the rents, damages, and costs. Here, the judgment only
building owned by Jonathan. When Mike failed ordered Jaypee to vacate and to pay attorney’s fees.
to pay six months’ rent, Jonathan filed an A supersedeas bond is not required to cover
ejectment suit. The Municipal Trial Court (MTC) attorney’s fees (Once v. Gonzalez, G.R. No. L-44806,
rendered judgment in favor of Jonathan, who March 31, 1977). Hence the posting of a supersedeas
then filed a motion for the issuance of a writ of bond is not required.
execution. The MTC issued the writ.
Q: Having obtained favorable judgment in his
a. How can Mike stay the execution of the MTC suit for a sum of money against Patricio, Orencio
judgment? Explain. sought the issuance of a writ of execution. When
the writ was issued, the sheriff levied upon a
A: Writ of Execution shall be issue if immediately parcel of land that Patricio owns, and a date was
upon motion, unless Mike (a) perfects his appeal to set for the execution sale.
the RTC, (b) files a sufficient supersedeas bond to
pay the rents, damages and costs accruing up to the a. How may Patricio prevent the sale of the
time of the judgment appealed from, and (c) property on execution?
deposits monthly with the RTC during the pendency
of the appeal the amount of rent due from time to A: Patricio may file a Petition for Relief with
time. (Sec. 19, Rule 70) preliminary injunction (Rule 38), posting a bond
equivalent to the value of the property levied upon;
b. Mike appealed to the Regional Trial Court or assail the levy as invalid if ground exists. Patricio
(RTC), which affirmed the MTC decision. may also simply pay the amount required by the
Mike then filed a petition for review with the writ and the costs incurred therewith.
Court of Appeals (CA). The CA dismissed the
petition on the ground that the sheriff had b. If Orencio is the purchaser of the property at
already executed the MTC decision and had the execution sale, how much does he have
ejected Mike from the premises, thus to pay? Explain.
rendering the appeal moot and academic. Is
the CA correct? Reasons. (2009 Bar) A: Orencio, the judgment creditor should pay only
the excess amount of the bid over the amount of the
A: No, the Court of Appeals is not correct. The judgment, if the bid exceeds the amount of the
dismissal of the appeal is wrong because the judgment.
execution of the RTC judgment is only in respect of
the eviction of the defendant from the leased c. If the property is sold to a third party at the
premises. Such execution pending appeal has no execution sale, what can Patricio do to
effect on the merits of the ejectment suit which still recover the property? Explain. (2009 Bar)
has to be resolved in the pending appeal. Sec. 21,

42


 QuAMTO (1987-2019)
A: Patricio can exercise his right of legal redemption Time to file the petition
within 1 year from date of registration of the
certificate of sale by paying the amount of the Q: May an order denying the probate of a will
purchase price with interest of 1% monthly, plus still be overturned after the period to appeal
assessment and taxes paid by the purchaser, with therefrom has lapsed? Why? (2002 Bar)
interest thereon, at the same rate.
A: Yes, an order denying the probate of a will may
Q: A default judgment was rendered by the RTC be overturned after the period to appeal therefrom
ordering D to pay P a sum of money. The has lapsed. A petition for refief may be filed on the
judgment became final, but D filed a petition for grounds of fraud, accident, mistake or excusable
relief and obtained a writ of preliminary negligence within a period of sixty (60) days after
injunction staying the enforcement of the the petitioner learns of the judgment or final order
judgment. After hearing, the RTC dismissed D’s and not more than six (6) months after such
petition, whereupon P immediately moved for judgment or final order was entered. (Secs. 1 and 3,
the execution of the judgment in his favour. Rule 38; Soriano v. Asi, G.R. No. L-9633, January 29,
Should P’s motion be granted? Why? (2002 Bar) 1957)

A: P’s immediate motion for execution of the An action for annulment may also be filed on the
judgment in his favor should be granted because the ground of extrinsic fraud within four (4) years from
dismissal of D’s petition for relief also dissolves the its discovery, and if based on lack of jurisdiction,
writ of preliminary injunction staying the before it is barred by laches or estoppel. (Secs. 2 and
enforcement of the judgment, even if the dismissal 3, Rule 47)
is not yet final. (Golez v. Leonidas, G.R. No. L-56587,
August 31, 1981) Q: Miguel filed a Complaint for damages against
Jose, who denied liability and filed a Motion to
Q: After his properties were attached, defendant Dismiss on the ground of failure to state a cause
Porfirio filed a sufficient counterbond. The trial of action. In an Order received by Jose on
court discharged the attachment. Nonetheless, January 5, 2015, the trial court denied the
Porfirio suffered substantial prejudice due to Motion to Dismiss. On February 4, 2015, Jose
the unwarranted attachment. In the end, the sought reconsideration of that Order through a
trial court rendered a judgment in Porfirio's Motion for Reconsideration. Miguel opposed the
favor by ordering the plaintiff to pay damages Motion for Reconsideration on the ground that
because the plaintiff was not entitled to the it was filed out of time. Jose countered that the
attachment. Porfirio moved to charge the 15-day rule under Section 1 of Rule 52 does not
plaintiff's attachment bond. The plaintiff and his apply where the Order sought to be
sureties opposed the motion, claiming that the reconsidered is an interlocutory order that does
filing of the counterbond had relieved the not attain finality. Is Jose correct? Explain. (2016
plaintiff's attachment bond from all liability for Bar)
the damages. Rule on Porfirio's motion. (2008
Bar) A: Yes, Jose is correct. The 15-day period to file a
motion for reconsideration under Section 1 of Rule
A: Porfirio’s motion to charge plaintiff’s attachment 52 refers to a motion for reconsideration of a
bond is proper and can be granted. It is not correct judgment or final resolution or order.
to contend that Porfirio’s filing of a counterbond
constitutes a waiver of his right to proceed against Here, what is involved is an order denying a motion
the attachment bond for the damages he suffered to dismiss, which is not a final order as it does not
from the unwarranted attachment. It is a condition terminate the case. The order is simply an
inter alia of the applicant’s attachment bond that he interlocutory order which may be reconsidered by
will pay all the costs which may be adjudged to the the trial court at any time during the pendency of
adverse party and all damages which the latter may the case (Rasdas v. Estenor, G.R. 157605, December
sustain by reason of the attachment, if the court 13, 2005). It should also be noted that Miguel did not
shall finally adjudge that the applicant was not file a motion to declare Jose in default.
entitled thereto. (Sec. 4, Rule 57; D.M. Wenceslao and
Associates, Inc. v. Readycon Trading and Construction Annulment of judgments or final orders and
Corp., G.R. No. 154106, June 29, 2004) resolutions

43
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
Q: Mr. X filed a complaint for sum of money remedies are no longer available through no fault of
against his old friend, Mr. Y. In order to ensure the petitioner. (Sec. 1, Rule 47)
that Mr. Y would not be able to file a responsive
pleading and much more, participate in the case, The grounds for annulment of judgment may be
Mr. X paid off Mr. Y's counsel, Atty. Z, who based only on the grounds of extrinsic fraud and
deliberately let the case proceed as such without lack of jurisdiction. Jurisprudence, however,
his client's knowledge. provides for the third ground which is denial of due
process. If based on extrinsic fraud, it must be filed
Eventually, judgment was rendered on March 1, within four (4) years from its discovery and if based
2016 in Mr. X's favor, a copy of which was on lack of jurisdiction, before it is barred by laches
received by Atty. Z on April 4, 2016. Bothered by or estoppel. (Teaño v. Municipality of Navotas, G.R
his conscience, Atty. Z brought the copy of the No. 205814, February 15, 2016)
decision to Mr.Y on June 1, 2016, thereby
surprising the latter and causing him grief. Q: Tom Wallis filed with the Regional Trial Court
Meanwhile, the decision became final and (RTC) a petition for declaration of nullity of his
executory in due course on April 19, 2016. marriage with Debi Wallis on the ground of
psychological incapacity of the latter. Before
Thereafter, Mr. Y took steps in vindicating his filing the petition, Tom Wallis had told Debi
rights, which culminated on August 15, 2016 Wallis that he wanted the annulment of their
when he, as represented by a new counsel, filed marriage because he was already fed up with
a petition for annulment of judgment before the her irrational and eccentric behaviour.
Court of Appeals (CA) on the ground of extrinsic However, in the petition for declaration of
fraud. The CA dismissed the petition on the nullity of marriage, the correct residential
ground that Mr. Y failed to submit a satisfactory address of Debi Wallis was deliberately not
explanation as to why he directly resorted to a alleged and instead, the resident address of
petition for annulment of judgment, when he their married son was stated. Summons was
could have filed a petition for relief from served by served by substituted service at the
judgment. address stated in the petition. For failure to file
an answer, Debi Wallis was declared in default
What are the differences between a petition for and Tom Wallis presented evidence ex parte.
relief from judgment and a petition for The RTC rendered judgment declaring the
annulment of judgment in terms of grounds and marriage null and void on the ground of
periods to file? (1998, 2019 BAR) psychological incapacity of Debi Wallis. Three
(3) years after the RTC judgment was rendered,
A: In a Petition for relief from judgment, when a Debi Wallis got hold of a copy thereof and
judgment or final order is entered or any other wanted to have the RTC judgment reversed and
proceeding is thereafter taken against a party in any set aside. If you are the lawyer of Debi Wallis,
court through fraud, accident, mistake, or excusable what judicial remedy or remedies will you take?
negligence, he may file a petition in such court and Discuss and specify the ground or grounds for
in the same case praying that the judgment, order or said remedy or remedies. (2014 Bar)
proceeding be set aside. (Section 1, Rule 38) It must
be filed within sixty (60) days after the petitioner A: Debi Wallis may file a Petition for Annulment of
learns of the judgment, and not more than six (6) Judgment under Rule 47 of the Rules of Court, on the
months after such judgment was entered, or such grounds of lack of jurisdiction, extrinsic fraud and
proceeding was taken, and must be accompanied denial of the right to due process (Diona v. Balange,
with affidavit showing the fraud, accident, mistake, G.R. No. 173589, January 7, 2013). An action for
or excusable negligence relied upon, and the facts annulment of judgment is resorted to in cases where
constituting the petitioner’s good and substantial the ordinary remedies of new trial, appeal, petition
cause of action or defense as the case may be. (Sec. for relief from judgment, or other appropriate
3, Rule 38) remedies are no longer available through no fault of
the appellant and is based on the grounds of
Whereas, in annulment of judgment, the Court of extrinsic fraud, and lack of jurisdiction. (Aleban v.
Appeals can annul the judgment of the RTC in civil Court of Appeals, G.R. No. 156021, September 23,
actions when the ordinary remedies of new trial, 2005)
appeal, petition for relief or other appropriate

44


 QuAMTO (1987-2019)
Relative thereto, the act of Tom Wallis in other disposition of such deposit/interest within
deliberately keeping Debi Wallis away from the 120 days from notice of the order. (Secs. 37 and 43,
Court, by intentionally alleging a wrong address in Rule 39)
the complaint constitutes extrinsic fraud. Moreover,
the failure of the Court to acquire jurisdiction over Q: A, a resident of Dagupan City, secured a
the person of the respondent, being an favorable judgment in an ejectment case against
indispensable party, necessitates the annulment of X, a resident of Quezon City, from the MTC of
judgment of the Regional Trial Court. Likewise, Manila. The judgment, entered on 15 June 1991,
there is denial of the right to due process when Debi had not as yet been executed.
Wallis was not given an opportunity to be heard in
the case. a. In July 1996, A decided to enforce the
judgment of the MTC of Manila. What is the
At any rate, the Court erred in declaring the procedure to be followed by A in enforcing
defendant in default because there is no default in a the judgment?
petition for declaration of nullity of marriage. (Sec.
3, Rule 9) A: A can enforce the judgment by another action
reviving the judgment because it can no longer be
EXECUTION AND SATISFACTION OF enforced by motion as the five-year period within
JUDGMENTS which a judgment may be enforced by motion has
already expired. (Sec. 6, Rule 39)
Q:
a. The writ of execution was returned b. With what court should A institute the
unsatisfied. The judgment obligee proceedings? (1997 Bar)
subsequently received information that a
bank holds a substantial deposit belonging A: A may institute the proceedings in the Regional
to the judgment obligor. If you are the Trial Court in accordance with the rules of venue
counsel of the judgment obligee, what steps because the enforcement of the judgment is a
would you take to reach the deposit to personal action incapable of pecuniary estimation.
satisfy the judgment?
Q: The trial court rendered judgment ordering
A: Since a writ of execution is valid for five years the defendant to pay the plaintiff moral and
from its issuance, the sheriff should be informed and exemplary damages. The judgment was served
requested to garnish or levy on execution the bank on the plaintiff on October 1, 2001 and on the
deposits belonging to the judgment obligor defendant on October 5, 2001. On October 8,
(Sec.9[c], Rule 39). Then the judgment creditor may 2001, the defendant filed a notice of appeal from
move for a court order directing the application of the judgment, but the following day, October 9,
such bank deposit to the satisfaction of the 2001, the plaintiff moved for the execution of
judgment. (Sec. 40, Rule 39) the judgment pending appeal. The trial court
granted the motion upon the posting by the
b. If the bank denies holding the deposit in the plaintiff of a bond to indemnify the defendant
name of the judgment obligor but your for damages it may suffer as a result of the
client's informant is certain that the deposit execution. The court gave as a special reason for
belongs to the judgment obligor under an its order the imminent insolvency of the
assumed name, what is your remedy to defendant. Is the order of execution pending
reach the deposit? (2008 Bar) appeal correct? Why? (2002 Bar)

A: To reach the bank deposit belonging to the A: No, because awards for moral and exemplary
judgment obligor but under an assumed name, a damages cannot be the subject of execution pending
motion may be filed for a court order requiring the appeal. The execution of any award for moral and
proper bank officer to appear in court for exemplary damages is dependent on the outcome of
examination under oath as to such bank deposit, the main case. Liabilities for moral and exemplary
and subsequently move for a court order damages, as well as the exact amounts remain
authorizing the filing of an action against such bank uncertain and indefinite pending resolution by the
for the recovery of the judgment obligor’s Court of Appeals or Supreme Court. (RCPI v. Lantin,
deposit/interest therein and to forbid a transfer or G.R. No. L-59311, January 31, 1985; International

45
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE
 REMEDIAL Law
School, Inc. v. Court of Appeals, G.R. No. 131109, June Under Section 10, Rule 39, if a judgment directs a
29, 1999) party to execute a conveyance of land or personal
property, or to deliver deeds, other documents, or
Q: Aldrin entered into a contract to sell with Neil to perform, any other specific act in connection
over a parcel of land. The contract stipulated a therewith, and the party fails to comply within the
P500,000.00 down payment upon signing and time specified, the court may direct the act to be
the balance payable in twelve (12) monthly done at the cost of the disobedient party by some
installments of Pl00,000.00. Aldrin paid the other person appointed by the court and the act
down payment and had paid three (3) monthly when so done shall have like effect as if done by the
installments when he found out that Neil had party. If real or personal property is situated within
sold the same property to Yuri for Pl.5 million the Philippines, the court in lieu of directing a
paid in cash. Aldrin sued Neil for specific conveyance thereof may by an order divest the title
performance with damages with the RTC. Yuri, of any party and vest it in others, which shall have
with leave of court, filed an answer-in- the force and effect of a conveyance executed in due
intervention as he had already obtained a TCT in form of law.
his name. After trial, the court rendered
judgment ordering Aldrin to pay all the The phrase “some other person appointed by the
instalments due, the cancellation of Yuri's title, court” may refer to the branch clerk of court, sheriff
and Neil to execute a deed of sale in favor of or even the Register of Deeds, and their acts when
Aldrin. When the judgment became final and done under such authority shall have the effect of
executory, Aldrin paid Neil all the installments having been done by Neil himself.
but the latter refused to execute the deed of sale
in favor of the former. Aldrin filed a "Petition for Q: JK’s real property is being attached by the
the Issuance of a Writ of Execution" with proper sheriff in a civil action for damages against LM.
notice of hearing. The petition alleged, among JK claims that he is not a party to the case; that
others, that the decision had become final and his property is not involved in said case; and
executory and he is entitled to the issuance of that he is the sole registered owner of said
the writ of execution as a matter of right. Neil property. Under the Rules of Court, what must JK
filed a motion to dismiss the petition on the do to prevent the sheriff from attaching his
ground that it lacked the required certification property? (2000 Bar)
against forum shopping.
A: If the real property is being attached, the remedy
a. Should the court grant Neil's Motion to is to file a third-party claim. The third-party
Dismiss? (2015 Bar) claimant should make an affidavit of his title to the
property attached, stating the grounds of his title
A: No. The motion to dismiss should be denied thereto, and serve such affidavit upon the sheriff
because the certification against forum shopping is while the latter has possession of the attached
only required in a complaint or other initiatory property, and a copy thereof upon the attaching
pleading (Sec. 5, Rule 7; Arquiza v. Court of Appeals, party (Sec. 14, Rule 57). The third-party claimant
G.R. No. 160479, June 8, 2005). Since a petition for the may also intervene or file a separate action to
issuance of the writ of execution is not an initiatory vindicate his claim to the property involved and
pleading, it does not require a certification against secure the necessary reliefs, such as preliminary
forum shopping. injunction, which will not be considered as
interference with a court of coordinate jurisdiction.
b. Despite the issuance of the writ of execution (Ong v. Tating, G.R. No. L-61042, April 15, 1987)
directing Neil to execute the deed of sale in
favor of Aldrin, the former obstinately Q: A obtained a money judgment against B. After
refused to execute the deed. What is Aldrin's the finality of the decision, the court issued a
remedy? (2015 Bar) writ of execution for the enforcement thereof.
Conformably with the said writ, the sheriff
A: Aldrin may move for the issuance of a court order levied upon certain properties under B’s name.
directing the execution of the Deed of Sale by some C filed a third-party claim over said properties
other person appointed by it. claiming that B had already transferred the
same to him. A moved to deny the third-party
claim and to hold B and C jointly and severally

46


 QuAMTO (1987-2019)
liable to him for the money judgment alleging and income, outside the province or city in which
that B had transferred said properties to C to such obligor resides. In this case the judgment
defraud him (A). After due hearing, the court obligor resides in Bulacan. (Sec. 36, Rule 39)
denied the third-party claim and rendered an
amended decision declaring B and C jointly and b. Seven years after the entry of judgment, the
severally liable to A for the money judgment. Is plaintiff filed an action for its revival. Can
the ruling of the court correct? Explain. (2005 the defendant successfully oppose the
Bar) revival of the judgment by contending that it
is null and void because the RTC-Manila did
A: No. C has not been properly impleaded as a party not acquire jurisdiction over his person?
defendant. He cannot be held liable for the judgment Why? (2002 Bar)
against A without a trial. In fact, since no bond was
filed by B, the sheriff is liable to C for damages. C can A: Yes, because the sheriff did not exert sufficient
file a separate action to enforce his third-party effort to serve summons personally on the
claim. It is in that suit that B can raise the ground of defendant within a reasonable time and hence the
fraud against C. However, the execution may RTC-Manila did not acquire jurisdiction over his
proceed where there is a finding that the claim is person. (Secs. 6 and 7, Rule 14; De Guzman v. Court of
fraudulent. (Tanongan v. Samson, G.R. No. 140889, Appeals, G.R. No. 120941, April 18, 1997)
May 9, 2002)
Enforcement and effect of foreign judgments or
Examination of judgment obligor when final orders
judgment is unsatisfied
Q: Under Article 1144 of the New Civil Code, an
Q: The plaintiff, a Manila resident, sued the action upon a judgment must be brought within
defendant, a resident of Malolos Bulacan, in the 10 years from the time the right of action
RTC –Manila for a sum of money. When the accrues. Is this provision applicable to an action
sheriff tried to serve the summons with a copy of filed in the Philippines to enforce a foreign
the complaint on the defendant at his Bulacan judgment? Explain. (2005 Bar)
residence, the sheriff was told that the
defendant had gone to Manila for business and A: No. Article 1144 of the Civil Code which requires
would not be back until the evening of that day. that an action upon a judgment (though without
So, the sheriff served the summons, together distinction) must be brought within 10 years from
with a copy of the complaint, on the defendant’s the time the right of action accrues, does not apply
18 year-old daughter, who was a college student. to an action filed in the Philippines to enforce a
For the defendant’s failure to answer the foreign judgment. While we can say that where the
complaint within the reglementary period, the law does not distinguish, we should not distinguish,
trial court, on motion of the plaintiff, declared still the law does not evidently contemplate the
the defendant in default. A month later, the trial inclusion of foreign judgments. A local judgment
court rendered judgment holding the defendant may be enforced by motion within five years and by
liable for the entire amount prayed for in the action within the next five years (Rule 39). That is
complaint. not the case with respect to foreign judgments
which cannot be enforced by mere motion.
a. After the judgment had become final, a writ
of execution was issued by the court. As the PROVISIONAL REMEDIES
writ was returned unsatisfied, the plaintiff
filed a motion for an order requiring the Preliminary attachment
defendant to appear before it and to be
examined regarding his property and Q: The plaintiff obtained a writ of preliminary
income. How should the court resolve the attachment upon a bond of P1 million. The writ
motion? was levied on the defendant’s property, but it
was discharged upon the posting by the
A: The RTC-Manila should deny the motion because defendant of a counterbond in the same amount
it is in violation of the rule that no judgment obligor of P1 million. After trial, the court rendered
shall be required to appear before a court, for the judgment finding that the plaintiff had no cause
purpose of examination concerning his property of action against the defendant and that he had

47
UST
UNIVERSITY OF SANTO TOMAS
BAR OPERATIONS
2021 ACADEMICSCOMMITTEE