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REMEDIAL LAW REVIEW Past exams Civil Procedure II.

JURISDICTION
Introductory/general concepts

Prof. Antonio R. Bautista

Q. Up to what stage of a c ! l act on "ay the ssue of #ur sd ct on $e ra sed% &'() *+,,. dter"s IIIa/ A. In case of jurisdiction over the subject matter, the question may be invoked at any stage of the proceedings (even on appeal), but the issue of jurisdiction over the person of the defendant must be raised either in the motion to dismiss or by way of an affirmative defense in the answer. (Amigo v A, !"# $ %A #&!). Q0 1 sues D n RTC2.an la to reco!er 1+334333.33 and a parcel of land located n .an la. 1 s a .an la res dent wh le D s a res dent of Que5on C ty. D "o!es to d s" ss on the ground of lac6 of #ur sd ct on. 7hat rul ng% &'() A' (otion denied. )he claim for *+,,,,,,.,, may be properly joined with the claim for recovery of real property, and %) has jurisdiction over such money claim since it has jurisdiction over the claim for recovery of real property. (%ule !, $ec. "-c.) Q0 Suppose you are the counsel for D who s sued n the .TC for unlawful deta ner and on a 1'34333.33 pro" ssory note &not related to the lease su$#ect of the act on)4 what would $e your proper and effect !e procedural recourse% &'() A' I will move for severance of one cause of action because of misjoinder of the two causes of action, one / to wit, the unlawful detainer action / being a special civil action. (%ule !, $ecs. " -b. and 0) Q0 8ast 9e$ruary +,,34 T d ed n Que5on C ty4 h s place of res dence4 lea! ng a w ll. .ay the RTC of :ulacan ta6e cogn 5ance of the pet t on for the pro$ate of h s w ll e!en f he left no property n :ulacan% &'() A' 1es, deceased2s residence or location of his estate is not an element of jurisdiction of the probate court but is merely one of venue. $o, %) /3ulacan may take cogni4ance of the petition for probate if there is no objection to the venue. Jur sd ct on &su$#ect "atter) of the d fferent le!els of courts n c ! l cases Q. 14 a .an la res dent4 f led a collect on act on aga nst C and D n RTC .an la4 alleg ng a total cla " of 1;<34333 &1+=3.4333 for pr nc pal and 1'34333 for attorney>s fees) aga nst C $ased on a pro" ssory note and a cla " of 1+334333 aga nst D $ased on the unpa d purchase pr ce of goods del !ered. :oth C and D "o!ed to d s" ss for lac6 of #ur sd ct on. Rule on $oth "ot ons to d s" ss. &+,,? . dter" @Aa" BII) A. 3oth motions to dismiss granted. 5urisdiction pertains to the () because the total amount (e6clusive of attorney2s fees) of each cause of action is below the jurisdictional minimum of *!,,,,,, for %) jurisdiction. 5oinder of the ! causes of action against and 7 is improper because there is a misjoinder of parties, the two pleaded causes of action not arising out of the same transaction or series of transaction and there being no question of law or fact common to and 7, and joinder of causes of action is subject to the rule on joinder of parties. ($ee 8lores v. (allare/*hillipps, +99 $ %A #:: -!nd. 7iv., +;&&.)

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REMEDIAL LAW REVIEW Past exams Civil Procedure

Prof. Antonio R. Bautista

Q. C4 a .an la res dent4 $ought a color TB set at the pr ce of 1+'4333.33 on ;D "onthly nstall"ents fro" : Co.4 a .an la2$ased appl ance co"pany. The transact on was co!ered $y a cond t onal sale contract. C defaulted n h s "onthly nstall"ent pay"ents after ha! ng pa d ' such nstall"ents. In what court "ay : Co. $r ng the act on to reco!er the TB set% &+,,< . dter" @Aa" BI$) A. ?o answer Q. 1 corporat on f led an act on aga nst D n the RTC to collect certa n a"ounts of "oney a"ount ng to 1 ; " ll on on ts cla " that D4 wh le pres dent of 1 corporat on and $y us ng h s pos t on as such pres dent and through fraud and " srepresentat on4 " sappropr ated and d !erted to h s personal use these corporate funds. D "o!ed to d s" ss the co"pla nt on the ground that t falls w th n the #ur sd ct on of the Secur t es and @Achange Co"" ss on &S@C). Rule on the "ot on to d s" ss. &'() *+,,' 9 nals BIIIa/ A. (otion to dismiss granted. )he complaint alleges acts committed by a corporate officer against the corporation, which amounts to fraud and misrepresentation and thus detrimental to the interest of the public. )herefore, what was otherwise an ordinary action for a sum of money has been converted to an inter/corporate controversy which calls for the adjudicative powers of the $@ under $ec " (a) of *7 ;,!/A. (Alleje v A, !9, $ %A 9;"). *** note amendment to PD 902-A in the Securities Regulation Code of 2000 transferring adjudicative po ers of the S!C over certain cases to the regular courts" Q. 14 a sen or B ce21res dent of a corporat on4 was d s" ssed for lac6 of conf dence. Cggr e!ed4 1 sued the co"pany for llegal d s" ssal w th prayer for $ac6 wages4 re nstate"ent4 da"ages and other $enef ts $efore the 8a$or Cr$ ter. The co"pany "o!ed to d s" ss on the ground that the 8a$or Cr$ ter has no #ur sd ct on on the o!er the act on. Rule on the "ot on. &'() *+,,- . dter"s BIa/ A. (otion granted. 5urisdiction properly pertains to the $ecurities and @6change ommission because the dismissal of a corporate officer is a corporate act andAor an intra/corporate controversy. (@strada v ?B% , C% ?o. +,0:!!, ,9 Dctober +;;0) *** note amendment to PD 902-A in the Securities Regulation Code of 2000 transferring adjudicative po ers of the S!C over certain cases to the regular courts" Q. 7hat s the legal effect of the non2pay"ent of the doc6et fees n full% &'() A. )he court does not acquire jurisdiction over the subject matter in the case. )herefore, the entire proceeding undertaken in the case are null and void. -Eodges v. A+&" $ %A !&+ (+;;,). Q0 1 sues D n RTC2.an la to reco!er 1+334333.33 and a parcel of land located n .an la. 1 s a .an la res dent wh le D s a res dent of Que5on C ty. D "o!es to d s" ss on the ground of lac6 of #ur sd ct on. 7hat rul ng% &'() A' (otion denied. )he claim for *+,,,,,,.,, may be properly joined with the claim for recovery of real property, and %) has jurisdiction over such money claim since it has jurisdiction over the claim for recovery of real property. (%ule !, $ec. "-c.) Q. Cct on $y 1 aga nst D n the RTC for a su" of "oney was sought to $e d s" ssed $y D on the ground of prescr pt on. The "ot on to d s" ss was den ed and D $rought a

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REMEDIAL LAW REVIEW Past exams Civil Procedure

Prof. Antonio R. Bautista

spec al c ! l act on for cert orar n the CC aga nst the order of den al of h s "ot on to d s" ss. The CC d s" ssed the pet t on. Then4 D f led h s answer4 after wh ch tr al was held and #udg"ent rendered aga nst D. On appeal fro" th s #udg"ent to the CC4 D f led a "ot on to d s" ss the co"pla nt on the ground of lac6 of #ur sd ct on4 alleg ng htat 1 had not pa d the appropr ate doc6et ng fees n the tr al court. Rule on the "ot on to d s" ss. A. (otion to dismiss denied. Although the payment of the proper docket fees is a jurisdictional requirement, the ) may allow the plaintiff in an action to pay these fees within a reasonable time before the e6piry of the applicable prescriptive or reglementary period. 3ut if the plaintiff fails to comply with this requirement, defendant should timely rise the issue of jurisdiction or else he would be considered in estoppel. Eere, 7 filed an answer and participated in the proceedings before the ) . It was only after judgment was rendered against him that he raised the issue of jurisdiction. Fhile the lack of jurisdiction ... may be raised at any stage of an action, the party raising such question may be estopped if he has actively taken part in the very proceedings which he questions and he only objects to the court2s jurisdiction because the judgment or decision subsequently rendered is adverse to him. (?ational $teel orp. v A)

III.

B@NU@

Q0 8ast 9e$ruary +,,34 T d ed n Que5on C ty4 h s place of res dence4 lea! ng a w ll. .ay the RTC of :ulacan ta6e cogn 5ance of the pet t on for the pro$ate of h s w ll e!en f he left no property n :ulacan% &'() A' 1es, deceased2s residence or location of his estate is not an element of jurisdiction of the probate court but is merely one of venue. $o, %) /3ulacan may take cogni4ance of the petition for probate if there is no objection to the venue.

IB. 1CRTI@S
*arty in Interest Q. C4 owner of an "pro!ed c ty lot4 leased the sa"e to :. 7h le : s n possess on4 he was d spossessed $y C. :4 therefore4 f led an act on aga nst C to reco!er possess on. C contested upon the ground that :4 not $e ng the owner of the land4 s not the real party n nterest. Is C>s content on correct% &'() A. If the action filed is for forcible entry wherein the issue is only possession de facto, 3, as the lessee, has a right of action against to recover the same. 3 is a party in interest in the sense that he has a present substantial interest in the land, the possession of which he had been deprived. apacity to sue and be sued Q. E Co"pany4 a corporat on ncorporated under the laws of . ch gan4 USC4 entered nto a Frepresentat !e agree"entF w th G Co"pany4 a do"est c corporat on4 for the sale n the 1h l pp nes of E Co"pany>s electron cs products n cons derat on for a st pulated co"" ss on. Cfter the agree"ent was n force for a year4 E Co"pany ter" nated t and then $rought an act on n the RTC2.a6at to en#o n G Co"pany fro" deal ng n s " lar products as those of E>s. G Co"pany "o!ed to d s" ss the act on on the ground that E Co"pany4 $e ng a fore gn corporat on not l censed to do $us ness n the 1h l pp nes4 has no capac ty to sue. Rule on the "ot on to d s" ss. &+3() *+,,- . dter"s I/

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REMEDIAL LAW REVIEW Past exams Civil Procedure

Prof. Antonio R. Bautista

A. G ompany may well be said to be doing business in the *hilippines because of the e6tensiveness and regularity of the sales of its products in this country whereby it made 1 ompany its mere agent in pursuit of its business. Eowever, 1 ompany is estopped to challenge the personality of G after it has acknowledged the same by entering into a contract with it. )his result is dictated by fair play. A person contracting with a foreign corporation cannot take advantage of the latter2s non/compliance with the licensing requirement where such person has received the benefits of the contract. ( ommunication (aterials and 7esign Inc v A, C% +,!!!#, !! August +;;0) 5oinder of parties Q. D purchased a car fro" 14 a car dealer4 on nstall"ents and secured the purchase pr ce $alance &co!ered $y a pro" ssory note) w th a chattel "ortgage on the car. 7h le the purchase pr ce was not yet fully pa d and the "ortgage on the car st ll eA st ng4 D sold the car to @. 7 th D ha! ng defaulted on the pay"ents4 14 see6 ng to foreclose the chattel "ortgage4 sued out a wr t of reple! n aga nst D and @4 $ut s nce D could no longer $e ser!ed w th su""ons4 1 "o!ed to drop D as defendant. Rule on 1>s "ot on to drop D. &+3() *+,,? . dter"s III/ A. )he motion to drop 7 as defendant cannot be granted without dismissing the complaint because 7 is an indispensable party. )he replevin suit is anchored on *2s alleged right to possess the car and which right in turn is founded on the alleged default of 7. If the case against 7 is dismissed, there would be no remaining cause of action against @. *2s right to possess the car is conditioned on 72s actual default and this default cannot be established in 72s absence. ($ervicewide $pecialists Inc. v A, C% ?o. +,##,+, ,& 7ecember +;;".) $ubstitution of parties Q. 1la nt ff f led a pet t on for "anda"us to co"pel the then "un c pal "ayor to ssue to h " the "un c pal l cense and per" t to resu"e operat ons of h s coc6p t. 1end ng the act on4 the "ayor was d s" ssed fro" off ce. Cfter tr al4 the court ssued the wr t of "anda"us and ad#udged defendant "ayor l a$le for da"ages. In due course4 the sher ff le! ed eAecut on of the #udg"ent for da"ages on defendant "ayor>s propert es. Is the le!y !al d% &+3() *+,,- . dter"s IB/ A. )he levy is void because the judgment is void and without any legal effect. )he judgment is void because there was no substitution, pursuant to %ule +&, $ection #, of defendant mayor and the filing of a supplemental pleading showing that defendant mayor2s successor had adopted or continued the defendant mayor2s policy to deny the cockpit license. (Calve4 v A, C% ++;+;#, !; (arch +;;0.) ?ewAadditional parties' impleader Q. 7hat s the effect !e recourse of the defendant where the pla nt ff d d not "plead an nd spensa$le party% &+,,< . dter" @Aa" II$) A. 7efendant should move for an order directing the plaintiff to amend its complaint by impleading the indispensable party. Hpon plaintiff2s failure or refusal to obey this order, the action should be dismissed. (%ule +:, $ec. #I ?ational 7evelopment o. v. ourt of Appeals, !++ $ %A 9!! -+;;!.). Q. Cct on $y 1 aga nst D n the RTC for a su" of "oney where n D "pleaded E as a th rd2 party defendant on the cla " that E s l a$le to pla nt ff $y way of su$rogat on to D>s

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REMEDIAL LAW REVIEW Past exams Civil Procedure

Prof. Antonio R. Bautista

l a$ l ty. Judg"ent was rendered order ng D to pay 1 and E to nde"n fy D for th s pay"ent. E t "ely appealed the #udg"ent to the CC4 $ut d d not appeal and so 1 sued out a wr t of eAecut on aga nst h " after the lapse of the +'2day per od for D to appeal. Is the wr t of eAecut on !al d% &'() *+,,, . dter" E/ A. 1es. )he third/party complaint is independent of and distinct from the complaint, but is allowed in the original and principal case to avoid circuitry of action and unnecessary proliferation of lawsuits and to dispose e6peditiously in one litigation the entire subject matter arising from one particular set of facts. An appeal by any party from such judgment does not inure to the benefit of the other party who has not appealed nor can it be deemed to be an appeal of such other party from the judgment against him. (8irestone )ire J %ubber o. of the *hils. vs. )empongko, !:$ %A 9+& -+;0;.) ?ewAadditional parties' intervention Q. 1 sues your cl ent D4 to reco!er possess on of a parcel of land. D tells you that h s w fe acHu red th s parcel of land fro" ts for"er owner4 E. Is there a way $y wh ch D "ay cause E to $e "pleaded% &+,,? . dter" @Aa" Ia) A. 1es. 7 should have his wife intervene in the case and once admitted as intervenor, the wife should move to be allowed to a file a third/party complaint against G. 7 himself cannot file this third/party complaint against G because he has no privity with G. ((orada v. aluag, " $ %A ++!& -+;0!.) Q 1 sued C4 :4 C and D to reco!er fro" each of the" d fferent p eces of #ewelry wh ch were allegedly del !ered to each of the" as a co"" ss on agent of the pla nt ff. The #ewelr es were del !ered on d fferent dates. If you were counsel for all the defendants4 what would $e your proper recourse% A. I would ask that all but one defendant be dropped from the complaint because the defendants are mis/joined. )he plaintiff2s claim against each of the defendants did not arise from the same transaction or series of transactions. (%ule #, sec 0). @ach claim therefore is a separate cause of action. (Cacula v (artine4, && *hil +9!) Q. 7hat s defendant>s recourse aga nst a co"pla nt wh ch fa ls to nclude an nd spensa$le party% A. Ee should move for an order directing the plaintiff to amend his complaint to include the indispensable party, and if plaintiff fails or refuses to obey this order, or the indispensable party cannot be sued, then defendant should move to dismiss the complaint under %ule +:, sec #. ($ee ore4 v Avila, +,+ *hgil !," -+;":.)

B. SU..ONS

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REMEDIAL LAW REVIEW Past exams Civil Procedure

Prof. Antonio R. Bautista

Q0 Cct on n RTC2 .an la aga nst d to collect a su" of "oney. D s a 9 l p no now per"anently res d ng n the Un ted States $ut co"es to the 1h l pp nes dur ng the Chr st"as hol days. Iow "ay the su""ons n th s act on $e ser!ed on h "% &'() A' Dnly personally, when he is in the *hilippines even temporarily only. @6traterritorial service is not permissible since the action is inpersonam (%ule +9, +") and 7 is not a *hilippine %esident (Id. $ec. +0) Q0 Cct on n RTC2 .an la aga nst d to collect a su" of "oney. D s a 9 l p no now per"anently res d ng n the Un ted States $ut co"es to the 1h l pp nes dur ng the Chr st"as hol days. Iow "ay the su""ons n th s act on $e ser!ed on h "% &'() A' Dnly personally, when he is in the *hilippines even temporarily only. @6traterritorial service is not permissible since the action is inpersonam (%ule +9, +") and 7 is not a *hilippine %esident (Id. $ec. +0) $ervice of summons Q. D $orrowed US J+34333 fro" the Kua" :ranch of a 1h l pp ne $an6 and eAecuted therefore n Cgana4 Kua" a pro" ssory note. Upon D>s default on the note4 "ay the 1h l pp ne $an6 sue h " n then 1h l pp nes to collect on th s note% &+,,? . dter" @Aa" IB$) A. 1es. 72s suability before our courts depends on the latter2s ability to acquire jurisdiction over his person or his property. In this case, the bank may file a simple collection case before a *hilippine court and have the summons served on 7 should he be found in the *hilippinesI but here the filing of the suit should be timed to coincide with the time that 7 is e6pected in this country, also the complaint may be dismissed for non/prosecutions if the summons is not served seasonably enough. 3ut the better alternative would be to have the plaintiff file an application for preliminary attachment on the real property of 7 in the *hilippines, because in such case, 72s non/residence will be a sufficient and independent ground for the issuance of an attachment (%ule ":, $ec. +-f.) and the court may then acquire jurisdiction over his person by service of summons by publication (%ule +9, $ec. +:).

BI. 18@CDINKS
A?$F@% Q. Cn act on on a pro" ssory note $y 1 aga nst D Co"pany4 copy of the note $e ng attached to the co"pla nt as an anneA. D Co"pany answered $y deny ng l a$ l ty and alleg ng that the person who s gned the note had no author ty to do so4 $ut th s answer was not !er f ed. .ay D Co"pany pro!e ts defense% &'() A. ?o. 3y failing to make a verified denial of the genuineness and due e6ecution of the note, 7 ompany had admitted that the party whose signature appears thereon had indeed signed the note and that he had authority to sign it. -Imperial )e6tile (ills Inc. v. AI +&# $ %A "&9 (+;;,). Q. .ay the tr al court eAtend the per od for f l ng an answer after th s per od had already eAp red% &'()

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REMEDIAL LAW REVIEW Past exams Civil Procedure


A. 1es, indirectly. $ee %++$:(!), now %++$++.

Prof. Antonio R. Bautista

Q0 Suppose that a co"pla nt s d s" ssed for fa lure to attach thereto a sworn cert f cat on aga nst foru"2shopp ng4 can the o" ss on $e cured $y an a"end"ent of the co"pla nt% &'() A' ?o. (rule :, $ec. ", !nd par.) Q0 7hen s a cross2cla " per" ss !e% &'() A' *erhaps never. ($ee %ule 0, sec. &I %ule ;, $ec. !) Q0 1 sues D for 1<334333.33 n RTC2.an la. :efore D could answer4 1 a"ends h s co"pla nt to allege an alternat !e cause of act on for spec f c perfor"ance. D "o!es to d s" ss the co"pla nt. Rul ng% &+3() A' (otion granted. * can amend the complaint once as a matter of right at any time before answer. )he fact that the original complaint did not plead a cause of action within the %) 2s jurisdiction is of no moment. Fhile the amendment has the effect of curing this defect, this is okay because no leave of court is sought so that there is no conceptual contradiction as no affirmative action is sought from the court. 3ut while an action for specific performance is within the %) 2s jurisdiction since it is not capable of pecuniary estimation, the alternative cause of action for *#,,,,,,,.,, puts such an estimate and brings the case within the () 2s jurisdiction because of the amount involved. ($ee ru4 v. )an, &: *hil. 0!: -+;",.) )he complaint Q. .ay 1 properly and correctly f le a co"pla nt n the RTC aga nst D to reco!er 1+ . ll on $ased on a pro" ssory note and another 1+ . ll on $ased on tort ous nterference w th contract4 and for foreclosure of a real estate "ortgage to secure a loan of 1' . ll on% &'() *+,,, . dter" EII/ A. Fhile causes of action may be joined against a common opposing party whether of the same nature or character or whether they arise out of the same contract or relation or whether they are for sums of money, yet none of the causes of action must be a special civil action or action governed by special rules otherwise there would be a misjoinder of causes of action. Eere, the cause of action for mortgage foreclosure is misjoined because it is a special civil action. (%ule !, $ec. ") Q. Can the court award the pla nt ff da"ages prayed for n h s co"pla nt to $e n an Fa"ount as w ll $e pro!ed at the tr alF% &+3() *+,,? . dter"s II/ A. Cenerally, no. It is required for purposes of computation of the docketing fees payable, that the complaint specify the amount of damages being prayed for not only in its body but also in its prayer. )he court does not acquire jurisdiction over an unspecified claim for damages, e6cept in respect to damages arising after the filing of the complaint or similar pleading the amount of which damages need not be specified but to which the additional filing fee shall be a lien on the judgment. (Driginal 7ev2t. J onst. orp. v A, !,! $ %A :"#). )he answer

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REMEDIAL LAW REVIEW Past exams Civil Procedure

Prof. Antonio R. Bautista

Q. .ay lac6 of #ur sd ct on o!er the person $e pleaded as an aff r"at !e defense and a prel " nary hear ng had thereon% &+3() *+,,? . dter"s BIII/ A. 1es. Any ground for dismissal under %ule +0, e6cept improper venue, may be pleaded as an affirmative defense and a preliminary hearing had thereon. A defendant is allowed to put up his own defenses alternatively or even hypothetically. 7efenses and objections not pleaded either in a motion to dismiss or an answer, e6cept for the failure to state a cause of action, are deemed waived. )herefore, the defendant is enjoined to set up, along with his objections to the court2s jurisdiction over his person, all other possible defenses. (Ba ?aval 7rug orp. v A, !#0 $ %A :&). ounterclaim and cross/claim Q. 8 sued C to annul a deed of sale of a lot and for 8 to $e declared the owner thereof. Judg"ent went to C4 and th s #udg"ent $eca"e f nal. Thereafter4 C f led an act on aga nst 84 C and : for da"ages for the use and occupancy of the sa"e lot4 C and : $e ng 8>s transferees of the house $u lt on the lot4 th s house ha! ng $een transferred $y 8 to C and : e!en $efore the f l ng of the annul"ent act on. 84 C and : "o!ed to d s" ss C>s co"pla nt on the ground that t s $arred $y the #udg"ent n the f rst act on. Resol!e the "ot on to d s" ss. &+,,D . dter" @Aa" IE) A. (otion to dismiss granted. )he scone motion is barred by the Kcompulsory counterclaim ruleK (%ule (, $ection 9) because the complaint for damages is necessarily connected with the transaction subject matter of the first action. Ead the same been annulled in the first action then would have no right to collect rents from the occupants of the lot and house, while if the court sustained the validity of the same (as it did) then would have had such right. )he addition of A and 3 as additional defendants does not detract form the res judicata effect of the judgment in the first case because these parties should have been impleaded by on his compulsory counterclaim in the first auction. $ee arpena v. (analo, + $ A% +,0, (+;&+) and my annotation in # *EIBA5H% "&& at 0,+/0,! (+;:&). Q. In an act on n the RTC $y the lessee aga nst the lessor to f A a per od for h s lease4 "ay the RTC enterta n the defendant lessor>s countercla " for the e#ect"ent of pla nt ff lessee on the ground of the eAp ry of the st pulated ter" n the lease contract% &'() *+,,, . dter" EI/ A. ?o, this is not a compulsory counterclaim because it is not within the jurisdiction of the %) to its nature. (%ule 0, $ec. :) as

Q. Cct on on a f re pol cy aga nst an nsurance co"pany wh ch ssued t. The defendant nsurer f led a th rd2party co"pla nt aga nst a re2 nsurer wh ch set up n h s answer the defense alleged $y the defendant nsurer that the loss was caused $y the w llful act of conn !ance of the pla nt ff nsured. .ay the th rd2party defendant re2 nsurer countercla " aga nst the pla nt ff% *+,,, U1 :arops III/ A. 1es, provided that the counterclaim be in respect to the plaintiff2s claim against the third/party plaintiff. (%ule 0, sec. +#)

Q. The .TC d s" ssed4 on defendant>s "ot on4 a co"pla nt for unlawful deta ner grounded on ter" nat on of a "onth2to2"onth lease4 for lac6 of #ur sd ct on o!er the su$#ect "atter due to lac6 of pr or de"and to !acate4 and awarded n fa!or of the defendant the a"ount

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REMEDIAL LAW REVIEW Past exams Civil Procedure

Prof. Antonio R. Bautista

of 1 '4333.33 as attorney>s fees. Is th s .TC dec s on !ulnera$le to attac6 on cert orar % &+3() *+,,? . dter"s BII/ A. 1es. $ince the () had no jurisdiction over the principal action for unlawful detainer, then it had no jurisdiction over the compulsory counterclaim for attorney2s fees either. 7efendant2s claim for attorney2s fees is in the nature of a compulsory counterclaim, and a compulsory counterclaim cannot remain pending for independent adjudication by the court. A compulsory counterclaim is merely au6iliary to the proceeding in the original suit and derives its jurisdictional support from this original suit. 3esides, it was defendant himself who caused the dismissal of his counterclaim by moving for the dismissal of the complaint. (7alisay v (arasigan, C% ?o. ++",&&, !, 5une +;;0. Amended and supplemental pleadings Q. C sued : n RTC2.an la for $reach of contract. : f led a "ot on to d s" ss on the ground that the co"pla nt fa ls to state a cause of act on. :efore the "ot on to d s" ss was resol!ed4 C f led an a"ended co"pla nt. The RTC d d not ad" t a"ended co"pla nt4 rul ng that C fa led to o$ta n lea!e of court. C>s "ot on for recons derat on was den edL so4 he f led a pet t on for cert orar n the Court of Cppeals. : "o!es to d s" ss the pet t on contend ng that the CC has no #ur sd ct on to ssue cert orar 4 s nce only a Huest on of law s n!ol!ed. Is the RTC #udge correct% Does the CC ha!e #ur sd ct on to ssue cert orar % Dec de. &+,,< . dter" @Aa" B) A. ?o answer Q. Ius$and f led a co"pla nt n the RTC aga nst h s w fe pray ng for custody of the r ch ldren and that the r support $e deter" ned4 the co"pla nt alleg ng that defendant2w fe atte"pted to 6 ll pla nt ff2hus$and $y 6 c6 ng h " tw ce on h s gen tal. Cfter answer4 pla nt ff was allowed $y the tr al court to a"end h s co"pla nt $y alleg ng that defendant atte"pted to 6 ll h " $y plac ng po son on h s food and pray ng for legal separat on. 7as the a"end"ent properly allowed% &+3() *+,,? . dter"s IB/ A. )here was no evidence that the amendment was made with intent to delay the action or that the cause of action was substantially altered. Fhile the reliefs sought are different, as the original complaint prays for custody and support while the amended complaint prays for legal separation, what determines the nature and character of an action is not the prayer but the essential basic allegations of fact as set forth in the complaint. )here is no substantial alteration of the cause of action because defendant is not required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint. @ven granting that the causes of action under the original and amended complains are different, still the amended complaint should be admitted because such causes of action, as legal separation, custody and support arose from the marital relationship between the parties, and a party is allowed to state in one pleading as many causes of action as may arise out of the same relation between the parties. (Anastacio v Anastacio, ;! DC !:90.) 8ormal requirement of pleadings Q. .ay a co"pla nt wh ch had $een d s" ssed for fa lure to attach a cert f cat on aga nst foru" shopp ng $e re2f led% &'() *;333 9 nals III/ A. 1es, unless the dismissal order states that it is with prejudice. (%ule :, $ec ", !nd par) 7etail in pleading

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REMEDIAL LAW REVIEW Past exams Civil Procedure

10

Prof. Antonio R. Bautista

Q. 1 co"pany4 a fore gn nsurance co"pany4 sued n the RTC2.an la and alleged that t s duly author 5ed to do $us ness n the 1h l pp nes4 $ut defendant n h s answer den ed th s allegat on as to 1>s capac ty to sue for lac6 of 6nowledge or nfor"at on. 7hat s the effect of defendant>s den al% *+,,, U1 :arops E/ A. ?one. )he denial is ineffective for being a general denial and therefore is inadequate to attack p2s capacity to sue. (%ule &, $ec. 9, !nd sent.) 8iling and service of pleadings J other papers Q. In an act on $y 1 aga nst D n the RTC for reco!ery of possess on and da"ages4 D f led an answer w th countercla "s $ut furn shed counsel for 1 a copy of th s answer $y reg stered "a l and h s answer d d not conta n any wr tten eAplanat on as to why ser! ce was not "ade personally upon 1. So4 1 f led a "ot on to eApunge the answer and to declare D n default on the ground that D d d not o$ser!e the "andate reHu r ng personal ser! ce or an eAplanat on of ts a$sence. Rule on D>s "ot on. *+,,, U1 :arops BI/ A. (otion granted. Hnder $ec. ++, %ule +# of the +;;: %ules of ivil *rocedure, personal service and filing is the general rule, and resort to other modes of service and filing, the e6ception. )herefore, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Dnly when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written e6planation as to why personal service was not practicable. )he absence of such e6planation is a violation of the rule and may be cause to consider the paper as not filed. ($olar )eam @ntertainment, Inc. vs. %icafort, C.%. ?o. +#!,,:, August ", +;;& -+st 7iv.) Q. In an unlawful deta ner su t $y 1 aga nst D4 the .TC .alolos rendered #udg"ent order ng D to !acate the pre" ses and to surrender the r possess on to 1. Thereafter4 a wr t of eAecut on of the #udg"ent and a wr t of de"ol t on4 were ssued. Dur ng the grace per od allowed D under the wr t of de"ol t on4 D f led a separate act on n RTC2:ulacan aga nst 1 and the pro! nc al sher ff for spec f c perfor"ance on the ground that D s ent tled to rece !e the !alue of the "pro!e"ents on the lot su$#ect of the e#ect"ent case $ecause he was a $u lder n good fa th. The RTC :ulacan ssued a TRO and then later a prel " nary n#unct on4 en#o n ng the enforce"ent of .TC .alolos> wr t of eAecut on and order of de"ol t on. D d the RTC .alolos act correctly% &+3() A. ?o. )his claim for compensation for improvements is a compulsory counterclaim under %;$9 and therefore, 7 should have raised it in the ejectment case even only alternatively because it is inconsistent with his claim of ownership. - ojuanco v. Lillegas +&9 $ %A #:9 (+;;,). Q. .ay a court grant rel ef greater than that as6ed for n the prayer of the l t gant>s plead ngs% &'() A. $ee %;$#. Q In an act on n the RTC $y the lessee aga nst the lessor to f A a per od for h s lease4 "ay the RTC enterta n the defendant lessor>s countercla " for the e#ect"ent of pla nt ff lessee on the ground of the eAp ry of the st pulated ter" n the lease contract. A. ?o, this is not a compulsory counterclaim because it is not within the jurisdiction of the %) to its nature. (rule 0, sec :) as

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REMEDIAL LAW REVIEW Past exams Civil Procedure

11

Prof. Antonio R. Bautista

Q. .ay 1 properly and correctly f le a co"pla nt n the RTC aga nst D to reco!er 1+ " ll on $ased on a pro" ssory note and another 1+ " ll on $ased on tort ous nterference w th contract4 and for foreclosure of a real estate "ortgage to secure a loan of 1' " ll on% A. Fhile causes of action may be joined against a common opposing party whether of the same nature or character or whether they arise out of the same contact or relation or whether they are for sums of money, yet none of the causes of action must be a special civil action or action governed by speciai rules otherwise, there would be a misjoinder of causes of action. Eere, the cause of action for mortgage foreclosure is misjoined because it is a special civil action. (%ule !, sec ").

BII. .OTIONS BIII. O:J@CTIONS TO 18@CDINKS


M. * sued 7 and @ for reconveyance, with damages, of a parcel of land. After filing his answer, @ served on * written interrogatories. 7espite the lapse of +A! years, the written interrogatories remained unanswered. $o on @Ns ()7, the court issued an order directing * to answer the written interrogatories within +, days from receipt of the order. )his order having gone unheeded, the court issued another order dismissing the complaint against @. After the order of dismissal had become final, * filed a motion for admission of amended complaint in which @ is again impleaded as a defendant on the same cause of action alleged in the original complain, plus and additional cause of action impugning the order of dismissal as being null and void for allegedly having been obtained through fraud. @ moves to dismiss amended complaint on the ground of res judicata. %ule on @Ns ()7. (+,O) A. ()7 granted. 7ismissal was in effect for failure to prosecute and therefore has the effect of an adjudication on the merits under %+:$#. Also, it is arguable that the dismissal is under %!;$" and therefore an adjudication on the merits. )he added cause of action in the amended complaint is improper because such an alleged cause of action can be raised only in a motion for new trial or in a %#& petition for relief. -$ee Arellano v. 8I of $orsogonI 0" $ %A 90 (+;:"). (otion to dismiss' want of jurisdiction Q. 1 sued D n the RTC to reco!er the su" of 1;34333.33 plus nterest. D answered alleg ng pay"ent $y set2off. Cfter pre2tr al $ut $efore the case could actually $e tr ed4 D f led a "ot on to d s" ss on the ground that the RTC has no #ur sd ct on o!er the case. Instead of f l ng an oppos t on to D>s "ot on to d s" ss4 1 f led a "ot on for lea!e to a"end h s co"pla nt $y nclud ng an allegat on of a cause of act on for 1'4333.33 attorney>s fees. If you were the #udge4 how would you resol!e D>s "ot on to d s" ss and 1>s "ot on for ad" ss on of h s a"ended co"pla nt% &+,,< . dter" @Aa" I) A. I would grant 72s motion to dismiss and deny *2s motion to admit amended complaint. (a) A motion to dismiss on the ground of lack of jurisdiction over the subject matter may be filed at any stage of the action. ($ee %ule ;, $ec. !)I (b) 7 already having answered, * must have to ask for leave of court to amend his complaint (%ule +,, $ecs. ! and #). Fhile *2s proposed amendment may not alter his cause of action, still the amendment is not allowable because it would have the effect of conferring jurisdiction upon the court. $ince the amount alleged in the original complaint does not e6ceed *!,,,,,.,, e6cluding interest, the %) did not acquire jurisdiction over the case, and so the %) has neither the power nor the jurisdiction to act on the motion for the admission of the amended complaint, much less to allow such amendment, since the court must

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REMEDIAL LAW REVIEW Past exams Civil Procedure

12

Prof. Antonio R. Bautista


arangdang, ;0

first acquire jurisdiction over the case in order to act thereon. (see %osario v. *hil. &9" -+;"".). *** ta#e note of the change in jurisdictional amounts

Q0 Cct on $y 1 aga nst D n the RTC for da"ages allegedly suffered $y 1 wh le a pay ng passenger n a !eh cle owned and dr !en $y D. Dur ng the pre2tr al4 the part es entered nto such a co"prehens !e st pulat on of facts that the #udge was "o!ed to dec de the case on su""ary #udg"ent. 1roper% &'() A' ?o. A hearing, on motion duly noticed, is required by %ule #9. (3ased on Codala v. D.C. :&;; - AI +;&;.). (otion to dismiss' litis pendentia Q. 1 f led a co"pla nt n the hous ng and 8and Use Regulatory :oard &I8UR:) to co"pel D to release and del !er a condo" n u" cert f cate of t tle and to des st fro" collect ng fees for co""un ty $enef t and to release all such fees collected and for da"ages. Dur ng the pendency of the I8UR: case4 D f led a co"pla nt aga nst 1 n the RTC for the collect on of fees for ad" n strat !e and "a ntenance eApenses4 co""on co"fort4 secur ty and san tat on. 1 then f led a "ot on to d s" ss the RTC case on the ground of pendency of a s " lar case $efore the I8UR:. Resol!e the "ot on to d s" ss. &+,,< . dter" @Aa" IIa) A. (otion to dismiss denied. Bitis pendentia as a ground for dismissal of an action refers to another pending action in a court of justice, e6cluding an administrative agency. (*u4on Industrial 7ev2t. orp. v. (agtolis, A &; D.C. p. !9&: -+;&;.). Q. C s the owner of a parcel of land pend ng reg strat on n the RTC of R 5al. Ie per" tted :4 a fa" ly fr end4 to construct a s"all house on the land and to l !e there n for a per od of two years only. The two2year per od eAp red on + "ay +,,D4 $ut : fa led and refused to !acate the land. Ience4 on +' June +,,D4 C f led an act on aga nst n the RTC of R 5al for the reco!ery of possess on of the land. : f led a "ot on to d s" ss the case on the ground that there s a pend ng land reg strat on case n!ol! ng the sa d property. Is the "ot on well founded% &+,,D . dter" @Aa" Ia) A. ?o lis pendens because no identity of causes of action or rights asserted and reliefs prayed for, so that judgment which may be rendered in one case would not necessarily result in res judicata in the other case. An action for recovery of possession is distinct and different from an action for recovery of title or ownership. (oreover, an %) , acting as a land registration court, has a limited and special jurisdiction confined to the determination of the legality and propriety of the issue of title. It has no power to entertain issues of rightful possession and claims for damages emanating from ownership. ((edina and 3ernal v. Laldellon, 0# $ %A !:0 -+;:".). Q. C lessee f led an act on n the RTC aga nst h s lessor pray ng for a decree f A ng the per od of h s lease. :efore plead ng to the co"pla nt4 the lessor f led h s own co"pla nt for unlawful deta ner n the .TC see6 ng the lessee>s e#ect"ent fro" the pre" ses on the ground of eAp ry of the ter" of the lease contract. The lessee "o!ed to d s" ss the unlawful deta ner co"pla nt on the ground of l t s pendent a. Rule on the "ot on. *+,,? 9 nals II/ ru4, &&

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REMEDIAL LAW REVIEW Past exams Civil Procedure

13

Prof. Antonio R. Bautista

A. (otion to dismiss denied. 3oth cases involve the common issue of the lessee2s right to possession of the premises, and this issue is better resolved in an unlawful detainer action. Fhat, then, ought to be dismissed is the %) action and not the unlawful detainer case. )he fact that the unlawful detainer action was filed later that the %) action is of no moment, because section +(e) of %ule +0 requires only another pending action / not a prior pending action. ()eodoro vs. (irasol, ;; *hil. +", -+;"0.). Q. 1 f led a co"pla nt n the RTC2Isa$ela aga nst D for the reco!ery of an alleged o!erpay"ent for a r ce thresher. 8ater4 $ut $efore the su""ons n the Isa$ela case could $e ser!ed on D4 D f led n RTC2.an la an act on aga nst 1 for collect on of the alleged $alance on the purchase pr ce of the sa"e r ce thresher. 1 "o!ed to d s" ss the .an la case on the ground of l t s pendent a. Rule on the "ot on. *+,,? 9 nals III/ A. (otion to dismiss granted. All the requisites for litis pendentia are present. )he Isabela action was already a pending action at the time of the filing of the (anila action even though the summons had not yet been served. %eason' A civil action is commenced by the mere filing of a complaint. (%ule !, sec. 0I $alacup vs. (addela, 5r., ;+ $ %A !:" -+;:+.). (otion to dismiss' res judicata Q. D screet :an6 eAtra#ud c ally foreclosed 1>s real estate "ortgage and tself purchased the property at the foreclosure sale. Cfter the eAp rat on of the one2year rede"pt on per od w thout any rede"pt on $e ng effected4 D screet :an6 f led w th the Reg stry of Deeds an aff da! t of consol dat on of ownersh p and4 conseHuently4 was ssued a new TCT. Thereafter4 D screet :an6 f led a pet t on for the ssuance of a wr t of possess on w th the RTC and th s pet t on4 doc6eted n the land reg strat on case4 was opposed $y 1 and4 after a full2dress hear ng4 the RTC granted the pet t on and ordered the ssuance of a wr t of possess on. Cfter the dec s on n th s case $eca"e f nal4 1 f led a co"pla nt aga nst D screet :an6 to set as de the sale of the "ortgaged property and cancel the wr t of possess on4 1 re terat ng the grounds ra sed n the oppos t on to the pet t on for the ssuance of wr t of possess on. D screet :an6 "o!ed to d s" ss th s caser on the ground of res #ud cata4 $ut th s "ot on was opposed $y 1 on the ground that the dec s on n the wr t2of2possess on case cannot const tute res #ud cata $ecause 1 could not present h s o$#ect ons n that proceed ng4 the ssuance of a wr t of possess on $e ng purely " n ster al w th the court and the present act on $e ng the correct one to attac6 the foreclosure sale. The court d s" ssed th s second case4 not on the ground of res #ud cata $ut for lac6 of #ur sd ct on4 the court reason ng that 1>s attac6 at the foreclosure sale tanta"ounts to an attac6 at a f nal order of the RTC and therefore s w th n the eAclus !e #ur sd ct on of the CC. Se!eral "onths later4 1 f led another co"pla nt aga nst D screet :an6 for the annul"ent of the foreclosure sale and recon!eyance of the "ortgaged property. Cs $efore4 D screet :an6 "o!ed to d s" ss on the ground of res #ud cata4 argu ng that the ssues ra sed n th s new case had $een resol!ed n the wr t2of2possess on case and n the second case foe the annul"ent of the foreclosure sale4 $ut th s "ot on was opposed $y 1 on the ground that the d s" ssal of the second case was not an ad#ud cat on on the "er ts4 the d s" ssal $e ng for lac6 of #ur sd ct on and therefore cannot const tute res #ud cata. &a) 7as the rul ng on the f rst "ot on to d s" ss correct% &+,,< . dter" @Aa" IIIa) A. Fhile the hearing in the writ/of/possession case was supposed to be summary , a full/dress hearing was actually conducted and * submitted himself to it. * cannot now therefore be heard to challenge the jurisdiction of the court and to escape or repudiate the effects of its judgment. $o, the order in the writ/of/possession case bars the second case on res judicata grounds. &$) Rule on the "ot on to d s" ss the th rd case. &+,,< . dter" @Aa" III$)

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REMEDIAL LAW REVIEW Past exams Civil Procedure

14

Prof. Antonio R. Bautista

A. In dismissing the second case for lack of jurisdiction, the court recogni4ed the order of dismissal in the writ/of/possession case as a final one which it could not annul, since the authority to annul such orders pertains to the A only. )his was, by itself, an adjudication on the merits of *2s claim because it declared him no longer entitled to the right upon which his claim is based. A judgment is deemed to be rendered upon the merits when it amounts to a declaration of the law as to the respective rights and duties of the parties, based upon the ultimate facts or state of facts disclosed by the pleadings and evidence, and upon which the right of recovery depends, irrespective of formal, technical or dilatory objections or contentions. (7e %amos v. A, !+# $ %A !,: -+;;!.) Q. 8e!y of eAecut on of "oney #udg"ent n C ! l Case No. +;<D' was "ade on property of D and at the eAecut on sale4 th s property was sold to pla nt ff 1. T tle was consol dated n 1 after the lapse of the rede"pt on per od. C t ng what s alleged to $e eHu ta$le grounds4 howe!er4 D f led a "ot on n the sa d C ! l Case No. +;<D' that he $e allowed to redee" the property or h s "other to purchase tL th s "ot on was den ed. D then f led another act on n the RTC4 C ! l Case No. ?-=,34 to reco!er the sa"e property on the ground of pro" ssory estoppel. If you were the counsel of 14 what step would you ta6e n C ! l Case No. ?-=,3% &+,,D . dter" @Aa" BII) A. I would move to dismiss ivil ase ?o. 0:&;, on the ground of res judicata. 3oth cases involve the same cause of action, the parties are the same, and the addition of 72s mother in ivil ase ?o. +!#9" does not militate against the identity of parties between the two cases because the mother represents the same interest as 7. ($antos v. A, !!0 $ %A 0#, P#rd 7iv., +;;#Q) Q. 1 sued D n the .TC for e#ect"ent on the ground of non2pay"ent of rentals. Cfter tr al on the "er ts4 #udg"ent was rendered d s" ss ng the co"pla nt upon the f nd ng that D has $een pay ng h s rentals on t "e. Thereafter4 1 de"anded an ncrease n D>s rentals4 and upon D>s fa lure to pay the ncreased rentals4 1 pro"ptly f led a co"pla nt aga nst D n the RTC pray ng for h s e! ct on and for da"agesL the RTC d s" ssed th s co"pla nt for lac6 of #ur sd ct on. 7 th the RTC d s" ssal4 1 f led an act on for unlawful deta ner aga nst D n the .TGC $ased on the sa"e allegat ons as h s co"pla nt n the RTC. D now "o!es to d s" ss th s second unlawful deta ner co"pla nt on the ground that t s $arred $y pr or #udg"ent. Rule on the "ot on to d s" ss. &+,,D . dter" @Aa" BIII$) A. (otion to dismiss denied. )he second ejectment action is not barred by the decision in the first ejectment caseI no identity of causes of action because the ground for ejectment in the second action is for non/payment of different rentals. ?or is the %) judgment a bar because it is not on the merits. Liray v. (arinas, 9; $ %A 99 (+;:#). Q. I4 hus$and4 f led an act on aga nst h s w fe4 74 to ha!e the r "arr age declared !o d due to the latter>s alleged psycholog cal ncapac ty to contract "arr age. Cfter tr al4 the act on was d s" ssed. Then4 I f led another act on aga nst 7 to ha!e the sa"e "arr age declared !o d for alleged a$sence of a "arr age l cense. Can the second act on prosper o!er t "ely oppos t on% &'() *;333 9 nals IB/ A. 7epends on whether the ground urged by E in the second action was already known to and could have been raised by E in the first action. ($ee %ule #;, $ec. 9: -b.)' Kor as to any matter that could have been raised in relation thereto.K) Q. E :us Co"pany purchased +3 $uses fro" G .otor Co. co!ered w th pro" ssory notes and deeds of chattel "ortgage. Then4 G ass gned these notes and deeds of chattel "ortgage to C :an6 and then su$seHuently ass gned the sa"e notes and chattel "ortgages to : 9 nance Co. Then4 when E defaulted on the notes4 G4 C and : de"anded pay"ent. In ! ew of the r confl ct ng cla "s aga nst t4 E f led n the RTC an nterpleader

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REMEDIAL LAW REVIEW Past exams Civil Procedure

15

Prof. Antonio R. Bautista

act on aga nst G4 C and : pray ng that the court deter" ne wh ch a"ong the" s ent tled to pay"ent on the notes. Three days later4 : f led an act on for reple! n w th da"ages aga nst E and G pray ng that G $e declared l a$le to pay :>s cla " aga nst E n the e!ent that : s not a$le to reco!er thereon aga nst E. Defendants "o!ed to d s" ss the reple! n co"pla nt on the ground of the pendency of the nterpleader act on. Rule on the "ot on to d s" ss. &'() *+,,, . dter" IE/ A. (otion to dismiss granted. )here is identity of parties between the interpleader case and replevin case. In the interpleader case, the plaintiff is G and the defendants are 1, A and 3, whereas in the replevin case, the plaintiff is 3 and the defendants are G and 1. In both cases therefore, 3, G and 1 are parties with the addition of A, but this addition does not retract from the requisite identity. In both cases, the rights spring from the deeds of assignment e6ecuted by 1 in favor of A and 3, covering the same debts of G owing to 1. )he identity in both cases is such that any judgment that may be rendered in the interpleader case would amount to res judicata in the replevin caseI if judgment in the interpleader case is that the assignment to A would prevail over the assignment to 3, such judgment would be binding on the replevin case and undercut 32s cause of action in the replevin case. ($anpiro 8inance orp. vs. IA , !!, $ %ARRR -#rd 7iv., +;;#.) Q. In the $el ef that the decedent d ed ntestate4 E4 G and M4 h s nephews4 n t ated n the RTC an ntestate proceed ng where n they o$ta ned an order appro! ng the r eAtra#ud c al part t on of the estate. :ut later4 E f led a "ot on to annul the order of appro!al on the ground that a w ll of the decedent had $een d sco!ered and there n sought ts pro$ate. The pro$ate court den ed E>s "ot on on ts f nd ng that the alleged w ll had $een destroyed and re!o6ed $y the decedent. Two "onths later4 E f led a pet t on n another RTC for pro$ate of the alleged w ll4 $ut G and M "o!ed to d s" ss the pet t on on the ground that t s $arred $y the #udg"ent of the ntestate court f nd ng the alleged w ll to ha!e $een destroyed and re!o6ed. Rule on the "ot on to d s" ss. &+3() *+,,' 9 nals I/ A. (otion to dismiss denied. )he intestate court had no jurisdiction to entertain the probate of the alleged will in the intestate proceeding and therefore it could not have made a finding that the alleged will had been destroyed and revoked ( asiano v (aloto, :; $ %A). $o, the intestate court not having jurisdiction to make this finding, the petition for probate of the alleged will cannot possibly be barred by res judicata. Q. @nu"erate all the ways $y wh ch a c ! l case n our courts "ay $e ter" nated4 w th $ nd ng and res #ud cata effect4 w thout a full2dress e! dent ary tr al where the part es are ena$led to present the r respect !e test "on al and other e! dence. &+3() *+,,- . dter"s E/ A. +. judgment on the pleadings !. summary judgment #. dismissal on motion of the defendant 9. voluntary dismissal by the plaintiff ". dismissal for plaintiff2s failure to prosecute 0. judgment by default :. judgment on confession or on compromise &. judgment on a complete stipulation of facts. Q. 1 sued C and : to reco!er a parcel of land. Judg"ent went for C and :. Then4 C sued : to reco!er the sa"e parcel. Is th s second act on $arred $y res #ud cata% &'() *+,,. dter"s BIIIa/

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16

Prof. Antonio R. Bautista

A. It depends. If A2s claim against 3 was already e6isting at the time of the first action and was a compulsory counterclaim in that case, then the second action is barred under %ule ;, $ec. 9. Dtherwise, there is no estoppel because A and 3 were no adverse parties in the first case and their relative rights and liabilities as co/defendants inter/se were not brought in issue. (Lalde4 v (endo4a, &; *hil. &#) (otion to dismiss' improper venue Q. 14 a res dent of .an la4 sued D4 also a res dent of .an la4 n the RTC2QC to collect 1'334333 $ased on a pro" ssory note. The RTC2QC d s" ssed the act on "otu propr o on the ground that the part es4 $e ng $oth res dents of .an la4 t has no #ur sd ct on o!er the case. Is the d s" ssal correct% &'() *+,,, . dter" EB/ A. ?o, the matter of residence is one of venue only and not of jurisdiction. )he court cannot motu proprio dismiss an action for improper venue, a motion being required for that purpose. Lenue touches more upon the convenience of the parties rather than upon the substance or merits of the caseI it involves no more and no less than a personal privilege which may be lost by failure to assert it seasonably. ($ee Cu4man vs. 3atario, ;" D.C. pp. #9:: - AI +;;9.) Q. .ay a court grant rel ef greater than that as6 for n the prayer of the l t gantsN plead ng% A. $ee %;$#.

In an action in the %) by the lessee against the lessor to fi6 a period for his lease, may the %) entlthough action is for annulment of the contract, the prime objective is to recover the land. Lenue should be 3ulacan. (Caviero4 v. $anche4, ;9 *hil ;:0,) %9.+ (otion to dismiss' want of jurisdiction Q. Cct on $y 1 aga nst D n the RTC for a su" of "oney was sought to $e d s" ssed $y D on the ground of prescr pt on. The "ot on to d s" ss was den ed and D $rought a spec al c ! l act on for cert orar n the CC aga nst the order of den al of h s "ot on to d s" ss. The CC d s" ssed the pet t on. Then4 D f led h s answer4 after wh ch tr al was held and #udg"ent rendered aga nst D. On appeal fro" th s #udg"ent to the CC4 D f led a .ot on to D s" ss the co"pla nt on the ground of lac6 of #ur sd ct on4 alleg ng that 1 had not pa d the appropr ate doc6et fees n the tr al court. Rule on the "ot on to d s" ss. &'() *+,,, . dter" B/ A. (otion to dismiss denied. Although the payment of the proper docket fees is a jurisdictional requirement, the ) may allow the plaintiff in an action to pay these fees within a reasonable time before the e6piry of the applicable prescriptive or reglementary period. 3ut if the plaintiff fails to comply with this requirement, defendant should timely raise the issue of jurisdiction or else he would be considered in estoppel. Eere, 7 filed an answer and participated in the proceedings before the ) . It was only after judgment was rendered against him that he raised the issue on jurisdiction. Fhile the lack of jurisdiction RRRRRRRRRRRRRRRRRRRmay be raised at any stage of an action, the party raising such question may be estopped if he has actively taken part in the very proceedings which he questions and he only objects to the court2s jurisdiction because the judgment or decision consequently rendered is adverse to him. (?ational $teel orp.vs. A, C.%. ?o. +!#!+", 8eb. !, +;;; -!nd 7iv..) (otion to dismiss' insufficient allegations

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Prof. Antonio R. Bautista

Q. The co"pla nt s "ply alleges that D s legally l a$le to 1 for da"ages n a na"ed a"ount. D "o!es to d s" ss th s co"pla nt for fa lure to state a cause of act on. Resol!e the "ot on to d s" ss. *+,,, U1 :arops BIII/ A. Cranted. )he operative or constitutive facts making up the pleaded cause of action are not stated. )he only matters pleaded are conclusions of law. (otion to dismiss' non/compliance with a condition precedent for filing Q. 7 sued her hus$and &I) and E Co"pany to annul a transfer of her paraphernal lot $y I to E Co"pany on the cla " that the transfer was ultra ! res a power of attorney g !en $y 7 to I. I "o!ed to d s" ss on the ground that her co"pla nt d d not allege pr or efforts towards a co"pro" se. Resol!e the "ot on to d s" ss. *+,,? 9 nals I/ A. (otion to dismiss denied. )he requirement of prior efforts to a compromise does not apply where there is a stranger to the action. ((agbaleta vs. Conong, :0 $ %A "++ -+;::.). (otion for judgment on the pleadings (otion for summary judgment Q. 7here n an act on $y 1 aga nst D to reco!er 1< . ll on da"ages for phys cal n#ur es allegedly suffered n a !eh cular coll s on4 D f les an answer wh ch conta ns noth ng $ut general den als4 can 1 ha!e #udg"ent on the plead ngs or su""ary #udg"ent% &'() *+,,, . dter" EBIII/ A. ?o judgment on the pleadings because of failure to make a specific denial does not amount to an admission of the averments as to the amount of unliquidated damages (%ule &, $ec. ++) and therefore there is a triable issue of fact (%ule #9, $ec. +). 3ut summary judgment may be granted if, after notice and hearing, the court should find, on the basis of the pleadings, supporting affidavits, depositions and admissions on file that, e6cept as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (%ule #", $ec. #) Q. 7hat s pla nt ff>s $est procedural recourse aga nst an answer wh ch pleads no "ore than negat !e pregnants% &'() *+,,- . dter"s IEa/ A. (ove for judgment on the pleadings. Q. 1 sued D to Hu et t tle to a parcel of land cla " ng to $e the owner of the land and to ha!e nher ted t fro" h s father. On the other hand4 D answered $y assert ng ownersh p o!er the sa"e land n h "self $y cla " ng to ha!e nher ted t fro" h s own father4 the alleged owner. 1 f led a reply to wh ch was attached a docu"ent ent tled FCc6nowledg"ent of Ownersh pF duly s gned $y D>s father and conced ng ownersh p of the land to 1>s father. Cfter pre2tr al4 the court rendered su""ary #udg"ent n 1>s fa!or on the ground that the genu neness and due eAecut on of the docu"ent anneAed to 1>s reply was not den ed $y D under oath. Is the su""ary #udg"ent correct% &+,,? . dter" @Aa" BIII) A. ?o. In the first place, there was no motion for summary judgment. In the second place, the issue of ownership is a genuine factual issue which has to be resolved by a trial on the merits. )here is no admission of the genuineness and due e6ecution of the Acknowledgement of Dwnership because this document was signed by 72s father and not by 7 himself and so there

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was no need for 7 to deny it under oath. ( adirao v. @sten4o, +#! $ %A &# -$econd 7ivision, +;&9.) ((otion to dismiss' want of jurisdiction) Q. 1 sued D n the RTC to reco!er the su" of 1;34333.33 plus nterest. D answered alleg ng pay"ent $y set2off. Cfter pre2tr al $ut $efore the case could actually $e tr ed4 D f led a "ot on to d s" ss on the ground that the RTC has no #ur sd ct on o!er the case. Instead of f l ng an oppos t on to D>s "ot on to d s" ss4 1 f led a "ot on for lea!e to a"end h s co"pla nt $y nclud ng an allegat on of a cause of act on for 1'4333.33 attorney>s fees. If you were the #udge4 how would you resol!e D>s "ot on to d s" ss and 1>s "ot on for ad" ss on of h s a"ended co"pla nt% &+,,< . dter" @Aa" I) A. I would grant 72s motion to dismiss and deny *2s motion to admit amended complaint. (a) A motion to dismiss on the ground of lack of jurisdiction over the subject matter may be filed at any stage of the action. ($ee %ule ;, $ec. !)I (b) 7 already having answered, * must have to ask for leave of court to amend his complaint (%ule +,, $ecs. ! and #). Fhile *2s proposed amendment may not alter his cause of action, still the amendment is not allowable because it would have the effect of conferring jurisdiction upon the court. $ince the amount alleged in the original complaint does not e6ceed *!,,,,,.,, e6cluding interest, the %) did not acquire jurisdiction over the case, and so the %) has neither the power nor the jurisdiction to act on the motion for the admission of the amended complaint, much less to allow such amendment, since the court must first acquire jurisdiction over the case in order to act thereon. (see %osario v. arangdang, ;0 *hil. &9" -+;"".). *** ta#e note of the change in jurisdictional amounts Q0 Cct on $y 1 aga nst D n the RTC for da"ages allegedly suffered $y 1 wh le a pay ng passenger n a !eh cle owned and dr !en $y D. Dur ng the pre2tr al4 the part es entered nto such a co"prehens !e st pulat on of facts that the #udge was "o!ed to dec de the case on su""ary #udg"ent. 1roper% &'() A' ?o. A hearing, on motion duly noticed, is required by %ule #9. (3ased on Codala v. D.C. :&;; - AI +;&;.). ru4, &&

Q. In an act on $y 1 aga nst D n the RTC for su" of "oney4 1 o$ta ned a wr t of prel " nary attach"ent on defendant>s propert es. Soon after4 tr al co""enced4 D d ed4 and so h s he rs "o!ed for the d s" ssal of the case. Rule on the d s" ssal "ot on. &'() A. 7ismissal motion granted. )he principal action to which the attachment is merely ancillary, is a money claim and the attachment cannot survive the dismissal of this principal action. S%egala v. A, +&# $ %A ";" (+;;,). Q. Cct on $y 1 aga nst D n the RTC for the collect on of su"s of "oney co!ered $y two pro" ssory notes wh ch were attached to the co"pla nt. There were allegat ons n the co"pla nt of part al pay"ents of outstand ng $alance. D duly f led an answer deny ng all the "ater al allegat ons of the co"pla nt $ecause F he does not ha!e 6nowledge suff c ent to const tute a $el ef as to the truth of the allegat ons conta ned there n.F 7ould 1 $e ent tled to #udg"ent on the plead ngs% &+3() Q. E :us Co. purchased +3 $uses fro" G .otor Co. co!ered w th pro" ssory notes and deeds of chattel "ortgage. Then4 G ass gned these notes and deeds of chattel "ortgage to C :an6 and then su$seHuently ass gned the sa"e notes and chattel "ortgage to : 9 nance Co. Then4 when E defaulted on the notes4 G4 C and : de"anded pay"ent. In ! ew of the r confl ct ng cla "s aga nst t4 E f led n the RTC an nterpleader

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Prof. Antonio R. Bautista

act on aga nst G4 C and : pray ng that the court deter" ne wh ch a"ong the" s ent tled to pay"ent on the notes. Three days later4 : f led an act on for reple! n w th da"ages aga nst E and G pray ng that G $e declared l a$le to pay :>s cla " aga nst E n the e!ent that : s not a$le to reco!er thereon aga nst E. Defendants "o!ed to d s" ss the reple! n co"pla nt on the ground of the pendency of the nterpleader act on. Rule on the "ot on to d s" ss. A. (otion to dismiss granted. )here is identity of parties between the interpleader case an the replevin case. In the interpleader case, the plaintiff is G and the defendants are 1, A and 3. In the replevin case, the plaintiff is 3 and the defendants are G and 1. In both cases, therefore, 3, G and 1 are parties with the addition of A, but this addition dos not detract from the requisite identity. In both cases, the rights spring from the deeds of assignment e6ecuted by 1 in favor of A and 3, covering the very same debts of G owing to 1. )he identity in both cases is such that any judgment that may be rendered in the interpleader case would amount to res judicata in the replevin caseI if judgment in the interpleader case is that the assignment to A would prevail over the assignment to 3, such judgment would be binding on the replevin case and undercut 32s cause of action in the replevin case. ($anpiro 8inance orp. v IA , !!, $ %A ... -#rd 7iv., +;;#.) Q. 14 a res dent of .an la4 sued D4 also a res dent of .an la4 n the RTC2QC to collect 1'334333.33 $ased on a pro" ssory note. The RTC2QC d s" ssed the act on "otu propr o on the ground that the part es4 $e ng $oth res dents of .an la4 t has no #ur sd ct on o!er the case. Is the d s" ssal correct% A. ?o, the matter of residence is one of venue only and not of jurisdiction. )he court cannot motu proprio dismiss an action for improper venue, a motion being required for that purpose. Lenue touches more upon the convenience of the parties rather than upon the substance or merits of the case. It involves no more and no less than a personal privilege which may be lost by failure to assert it seasonably. ($ee Cu4man v 3atario, ;" D.C. pp #9:: - A +;;9.) Q. 7here n an act on $y 1 aga nst D to reco!er 1< . ll on da"ages for phys cal n#ur es allegedly suffered n a !eh cular coll s on4 D f les an answer wh ch conta ns noth ng $ut general den als4 can 1 ha!e #udg"ent on the plead ngs or su""ary #udg"ent% A. ?o judgment on the pleadings because the failure to make a specific denial does not amount to an admission of the averments as to the amount of unliquidated damges (%ule &, $ec ++) and therefore, there is a triable issue of fact (%ule #9, $ec +). 3ut summary judgment may be granted if, after notice and hearing, the court should find, on the basis of the pleadings supporting affidavits, depositions, and admissions on file that, e6cept as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (%ule #", $ec #)

Q. 7here there s an ssue as to defendant>s l a$ l ty for eAe"plary da"ages4 "ay the court render su""ary #udg"ent n the case% A. ?o. $ummary judgment is proper only when there is no triable issue of material fact e6cept as to the amount of damages, not as to the liability for damages. (%ule #", sec #) Q. Iow does the defendant ra se the ssue as to h s legal capac ty to $e sued%

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REMEDIAL LAW REVIEW Past exams Civil Procedure

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Prof. Antonio R. Bautista

A. 3y moving to dismiss on the ground that the court has no jurisdiction over his person. (%ule +0, sec +-a.) Q. 1 sued D to reco!er possess on and ownersh p of a parcel of land4 $ut th s act on was d s" ssed &after the case was scheduled se!eral t "es for tr al) for 1>s fa lure to prosecute. Cfter the d s" ssal order had $eco"e f nal4 1 $rought another act on aga nst D for Hu et ng of t tle o!er the sa"e parcel of land. D "o!ed to d s" ss th s ;nd act on on the ground of res #ud cata. Rule on the "ot on. (otion to dismiss granted. )he dismissal had the effect of an adjudication on the merits, the court not indicating otherwise. (%ule +:, sec #) )he judgment in the first case having become final and there being the requisite identity of parties, subject matter and causes of action, res judicata bars second action. (*anado v orte4, ;9 DC 9 - AI+;;#.) Q........$as s of the decree4 n the nterpleader su t4 C won the e#ect"ent act on. : d d not appeal th s #udg"ent4 $ut pre!a led on h s earl er appeal fro" the nterpleader decree an was awarded the rents wh ch has $een collected. 7hen : sought to $r ng an e#ect"ent act on aga nst C4 the latter pleaded res #ud cata4 $ased on h s pre! ous successful e#ect"ent act on. Rule on C>s n!ocat on of res #ud cata. A. %es judicata properly applies. )he judgment in the ejectment action is final and not open to attack collaterally, but subject to impeachment only through some form of direct attack. )he appellate court was limited to a review of the interpleader decree. (%eed v Allen, !0 H.$. +;+, "! $. t. "#!, :0 B. @d., +,"9 -+;#!.) Q. D st ngu sh Flaw of the caseF fro" res #ud cata

Q. Defendant "o!ed to d s" ss the co"pla nt on the ground that ts allegat ons are Fnot suff c ent to warrant the rel ef prayed for.F Rule on the "ot on to d s" ss. A. +(otion to dismiss denied. )his is not a ground for a motion to dismiss, and the prayer is part of the complaint and, save in case of default, is of no importance. ( amponanes v 3artolomen, #& *hil 0,&). Q. 14 a res dent of .an la4 f led a co"pla nt aga nst D4 a res dent of Ilo lo4 n the RTC2 .an la. Th s co"pla nt conta ns ; causes of act on4 one for "oney4 and the other for t tle to real property n :agu o4 $oth causes of act on ar s ng out of the sa"e transact on $etween the part es. Is there anyth ng procedurally wrong w th the co"pla nt% A. )here is misjoinder of causes of action, and therefore the court should order their separation so that each cause of action may proceed independently of the other. Fhile joinder of causes of action is allowed, the cause of action for title to property in 3aguio...mislaid. (%ule !, secs " -c. and 0)

IE.

DIS.ISSC8S CND D@9CU8TS

Q0 In h s effort to unclog h s doc6et and co" ng across the record of Spec al 1roceed ngs No. =3+4 a guard ansh p case n!ol! ng a " nor w th propert es worth "ore than a " ll on pesos4 and f nd ng the sa d case to ha!e $een pend ng s nce way $ac6 n +,=<4 after pet t oner had presented one w tness only4 follow ng the appo nt"ent of E as guard an4 Judge G of the Nue!a @c #a Reg onal Tr al Court d s" ssed the case for fa lure to prosecute. Is the order of d s" ssal !al d% &'()

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REMEDIAL LAW REVIEW Past exams Civil Procedure

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Prof. Antonio R. Bautista

A' 3ased on +;&" 3ar @6am. ?o. A guardianship case involving a minor continues until the minor has reached the age of majority. It cannot therefore be dismissed for failure to prosecute. Q0 Does d s" ssal of a co"pla nt on pla nt ff>s "ot on carry w th t the d s" ssal of defendant>s co"pulsory countercla "% &'() A' ?o, the dismissal Kshall be limited to the complaint.K (%ule +:, $ec. !) Q0 1 sued D to co"pel the latter to eAecute a deed of sale to h " o!er a parcel of land the purchase pr ce of wh ch had allegedly already $een fully pa d $y 1. Cfter h s "ot on to d s" ss on the ground of prescr pt on was den ed4 D f led h s answer n due course and thence tr al was held. Cfter tr al4 #udg"ent was renderd aga nst D who then f led a "ot on to d s" ss for lac6 of #ur sd ct on on the ground that 1 d d not pay the correct doc6et fees wh ch should ha!e $een assessed on the $as s of the !alue of the property and da"ages sought and not on the $as s of the act on as one for spec f c perfor"ance when t was actually for reco!ery of property. Rule on the "ot on to d s" ss. &+3() A' (otion to dismiss denied. In the first place, the action is really for recovery of real property and not for specific performance since *2s primary objective is to regain the ownership and possession of the parcel of land. In the second place, although the payment of the proper docket fees is a jurisdictional requirement, the trial court may allow the plaintiff to pay the same within a reasonable time before the e6piration of the applicable prescriptive or reglementary period. In any event, the balance between the appropriate docket fees and the amount actually paid by the plaintiff will always be considered a lien on any judgment * may obtain. )hirdly, the motion to dismiss came too late. 7 is already estopped from raising the issue of jurisdiction after he had actually taken part in the very proceedings which he questions and after the court had rendered a judgment adverse to him. ($ee ?ational $teel orp. vs. ourt of Appeals, #,! $ %A "!! -!nd 7iv.I +;;;.) Q0 7here the defendant has $een declared n default4 does the pla nt ff st ll ha!e to present e! dence to support h s co"pla nt n order for h " to o$ta n #udg"ent thereon% &'() A' ?o need. )he ourt may render judgment granting plaintiff such relief as his pleading may warrant unless in its discretion the court requires him to submit evidence. (%ule ; $ec. #) 7ismissals Q. Cct on $y 1 aga nst D n the RTC for reco!ery of a parcel of land. Cfter #o nder of the ssues $ut $efore actual tr al4 1 f led a "an festat on that he s no longer nterested n prosecut ng h s co"pla nt pro! ded4 howe!er4 the defendant foregoes w th h s countercla ". D f led a counter2"an festat on agree ng to the d s" ssal of the co"pla nt and h s counter cla ". 7hereupon4 the RTC ssued an order d s" ss ng pla nt ffNs co"pla nt and defendantNs countercla " w thout costs. 1Ns successor2 n2 nterest now sues to reco!er the sa"e parcel4 and DNs successor2 n2 nterest "o!es to d s" ss th s new co"pla nt on the ground of res judicata. If you were the #udge4 would you grant the "ot on to d s" ss% &+,,D . dter" @Aa" IIa) A. ?o. 7ismissal of the first case was without prejudice. )he dismissal having been at plaintiff2s instance and not having specified that it was with prejudice, it is one Kwithout prejudiceK within the meaning of $ec. !, %ule +:. Lergara v. Dcumen, ++9 $ %A 990 (+;&!). Q. Rely ng on a docu"ent of sale4 1 sued D n the RTC to reco!er ownersh p of a parcel of land. 9or fa lure of 1 to a"end h s co"pla nt confor"a$ly to an order of the court4 the

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Prof. Antonio R. Bautista

co"pla nt was d s" ssed. C "onth thereafter4 1 re2f led the sa"e co"pla nt n the RTC4 and th s co"pla nt s now "et w th a "ot on to d s" ss $y D on the ground of res #ud cata. Resol!e the "ot on to d s" ss. &+,,D . dter" @Aa" BIIIa) A. (otion to dismiss granted. )he dismissal of the first case was with prejudice pursuant to $ection #, %ule +:. )herefore, all requisites for res judicata are present. (@nrique4 v. 3oyles, !!0 $ %A 000 #rd 7iv., +;;#) Q. .ay a court d s" ss an act on for fa lure of pla nt ff>s lawyer to appear at the tr al desp te due not ce% &'() A. ?o. %+:$# does not authori4e a dismissal on the ground of absence of counsel. Fhat the court should do is to grant the plaintiff and hour or two to engage the services of a new lawyer. -7ayo v. 7ayoI ;" *hil :,# (+;"9). 7efaults Q. In an act on $y 1 aga nst D n the RTC for a su" of "oney4 su""ons w th copy of the co"pla nt was ser!ed on D on ;; Cpr l +,,'. 9or f l ng h s answer one "onth later w thout any pre! ous eAtens on of h s t "e to plead and on 1>s "ot on4 the RTC declared D n default and thereafter rendered #udg"ent $y default aga nst h ". Cfter h s "ot on for recons derat on of the default order was den ed4 D went to the Ca on cert orar and proh $ t on to challenge the default order. Is D>s pet t on tena$le% &+,,? . dter" @Aa" BI$) A. ?o. ertiorari and prohibition are improper because 7 has till an appropriate remedy by way of a %ule #& petitions for relief. ($ee Bina v. A, +#" $ %A 0#: -+;&".) Q. Due to personal n#ur es suffered n a !eh cular coll ss on4 1 sued D for 1<334333 n actual da"ages4 1+ . ll on n "oral da"ages4 1+ . ll on n eAe"plary da"ages and 1'334333 for attorney>s fees. Cssu" ng that D s declared n default4 how "uch can the court properly award 1% &'() *+,,, . dter" EIII/ A. ?othing, e6cept probably such attorney2s fees as the court may find reasonable. Hnliquidated damages cannot be awarded against a party declared in default. (%ule ;, $ec. #-d.) Q. Due to personal n#ur es suffered n a !eh cular coll s on4 1 sued D for 1<334333.33 n actual da"ages4 1+ . ll on n "oral da"ages4 1+ . ll on n eAe"plary da"ages and 1'334333.33 for attorney>s fees. Cssu" ng that D s declared n default4 how "uch can the court properly award 1% A. ?othing, e6cept probably such attorney2s fees as the court may find reasonable. Hnliquidated damages cannot be awarded against a party declared in default. (%ule ;, $ec #-d.). Q. Do you see any ad!antage that pla nt ff "ay ga n $y o$ta n ng a !oluntary d s" ssal of h s co"pla nt $efore the court can act on defendant>s "ot on to d s" ss the sa"e co"pla nt for fa lure to state a cause of act on% A. 7ismissal for failure to state a cause of action is an adjudication on the merits and has res udicata effect, whereas a voluntary dismissal before answer is not. 3esides, the court might award attorney2s fees even as it dismisses the case for failure to state cause of action, and plaintiff can avoid this possibility by having the case dismissed. Q. In what nstances "ay a #udg"ent $y default $e rendered aga nst defendant%

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Prof. Antonio R. Bautista

A. (+) Fhen defendant has been declared in default for failure to answer within the reglementary period. (%ule ;, sec #). (!) Fhen defendant refuses to obey discovery order. (%ule !;, $ec #-a.) Q. 7here the defendant was declared n default desp te the fact that he had not $een duly su""oned4 does he st ll ha!e to de"onstrate a F"er tor ous defenseF as a cond t on precedent to sett ng as de the default order% A. ?o more. )he default judgment is illegal and the motion to set it aside does not have to be accompanied by an affidavit of merit. (*onio v IA , +## $ %A "::, !nd 7iv -+;;9.) 3esides, the theory of the requirement that there would be no purpose served by re/opening the judgment if defendant would simply lose on the merits in any event does not apply because had the defendant been notified of the suit, he might have worked out a settlement, or paid the debt, or himself raised enough funds to pay the debt, rather than to suffer its being sold at a sheriff2s sale. ($ee *erlata v Eeights (edical enter, Inc, 9&" H$ &,, +,& $. t. &;0, ;; B!nd :" -+;&&.)

E.

1ROBISIONC8 R@.@DI@S

Q. 1 sued D n the RTC on a cla " for 1<334333.33 and o$ta ned a wr t of prel " nary attach"ent on D>s property. The sher ff attached a .ercedes :en5 car found n D>s garage. Then4 T4 a $rother of D4 f led w th the sher ff a th rd party cla "4 T swear ng n h s aff da! t of th rd party cla " that h s r ght to the possess on of the .ercedes :en5 car s der !ed fro" the fact that D purchased th s car w th funds $orrowed fro" h ". 7hat act on4 f any4 should the sher ff ta6e on T>s th rd party cla "% &'() A. )he sheriff should just ignore )2s third/party claim. )he affidavit is insufficient under %":$+9 to cause discharge of the attachment because the claimant alleged that he was a mere creditor of the attachment debtor. ) does not claim to have a title to or a lien on, the attached property which would entitle him to its possession. -$ee Feadcock v. DfiladaI &9 *hil RRR (+;9;). Q0 Can a te"porary restra n ng order $e ssued eA2parte% &'() A' 1es, but effective for :! hours only and this is to be issued by the e6ecutive judge of a multiple/sala court or the presiding judge of a single/sala court and only if the mater is of e6treme urgency and the applicant will suffer grave injustice and irreparable injury. (%ule "&, $ec. ", !nd par.) Q0 In an act on for a su" of "oney4 1 o$ta ned a wr t of attach"ent and le! ed t on D>s propert es. D f led an answer4 n wh ch he asserted prescr pt on of 1>s alleged cause of act on as one of h s aff r"at !e defenses and on wh ch he sought a prel " nary hear ng. D also pleaded a countercla " where he prayed for da"ages ar s ng fro" the attach"ent wh ch he cla "ed was "al c ously o$ta ned and "ple"ented. Cfter the hear ng on D>s aff r"at !e defense of prescr pt on the court found that 1>s cause of act on had already prescr $ed and therefore ordered the d s" ssal of the co"pla nt as well as D>s countercla " wh ch t sa d could not re"a n for ndependent ad#ud cat on. 7 th the d s" ssal of the countercla "4 can D st ll reco!er da"ages aga nst the attach"ent $ond for llegal attach"ent% &+3() *reliminary Injunction Q. 1 $ought a house and lot fro" E4 w th a $alance re"a n ng on the purchase pr ce $ut wh ch $alance was secured $y a "ortgage on the pre" ses. Then4 1 sued D4 an occupant4 n the RTC to reco!er possess on of the house and lot. Cfter due tr al4 the RTC rendered

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#udg"ent for 1 and ordered D to !acate and del !er the pre" ses to 1. C wr t of eAecut on was4 n due course4 ssued for th s #udg"ent. Iowe!er4 $efore the wr t of eAecut on could $e carr ed out4 D4 cla " ng to $e an ass gnee of E>s "ortgage4 f led n another RTC a su t for foreclosure of the "ortgage4 w th prayer for prel " nary n#unct on. Should D $e granted a prel " nary n#unct on to en#o n h s e! ct on under the #udg"ent n the f rst case% &+,,D . dter" @Aa" B) A. ?o. *, as the prevailing party in the first case, is entitled as a matter of right to a writ of e6ecution. (oreover, 7 does not have a clear right in esse which deserves protection by an injunctionI he claims the right to foreclose the mortgage by virtue of a supposed assignment to him by G of the balance of the purchase price secured by a mortgage on the premises. 72s right to foe close has yet to be established and an injunction is not the instrument to do this. Hlang v. A, !!" $ %A 0#: (!nd 7iv., +;;#). Q. In a pet t on for rel ef n the RTC aga nst an RTC "oney #udg"ent &already f nal and eAecutory)4 the RTC ssued a prel " nary n#unct on en#o n ng the eAecut on of the dec s on. Cfter due hear ng4 the RTC d s" ssed the pet t on for rel ef4 and pet t oner appealed the d s" ssal order to the CC. 7h le the appeal s pend ng4 "ay the #udg"ent sought to $e set as de on the pet t on for rel ef $e eAecuted% &'() *+,,- . dter"s BIIa/ A. ?o. )he preliminary injunction has not been dissolved and is still in force. %ule #;, $ec. 9 refers to an injunction as a principal remedy and not to a preliminary injunction issued as an au6iliary remedy which au6iliary remedies are not dissolved unless the trial court e6pressly says so. 8or the trial court to have dissolved the preliminary injunction here would have mooted the appeal. (7imaunahan v Arnas, :9 *hil. +"") *%DLI$ID?AB %@(@7I@$ (*reliminary injunction) *B@A7I?C$ ( ounterclaim and cross/claim) Q. In an act on $y 1 aga nst D for proh $ t on4 1 o$ta ned a wr t of prel " nary n#unct on aga nst D. On cert orar to the SC4 the wr t of prel " nary n#unct on was null f ed on the ground that the pet t on was pre"ature $ecause 1 had not eAhausted h s ad" n strat !e re"ed es. Ta6 ng h s cue fro" the SC dec s on4 D f led a "ot on to d s" ss the co"pla nt for fa lure to state a cause of act on and the "ot on was granted. Cfter th s d s" ssal order $eca"e f nal4 D f led an act on aga nst 1 to reco!er da"ages result ng fro" the ssuance of the prel " nary n#unct on n the f rst case. 1 now "o!es to d s" ss the da"age act on on the ground that t s $arred for not ha! ng $een set up as a co"pulsory countercla " n the proh $ t on case. Rule on 1>s "ot on to d s" ss. &+,,? . dter" @Aa" III) A. (otion may be tolerably argued both ways. Arguable that 7 had waived his claim for damages resulting from the unlawfully issued injunction by having moved to dismiss the complaint in which he had a compulsory counterclaim. ($ee Int2l ontainer $ervices, Inc. v. A, !+9 $ %A 9"0 -8irst 7iv., +;;!.). It is also arguable however that the case is assimilable to one where the principal case was dismissed for lack of jurisdiction in which no claim for damages could have been presented in that case so that this independent action for damages for the illegal injunction is not abated ($ee $antos v. A, ;" *hil. #0, (+;"9.) Q. Suppose the "a n case s d s" ssed $y #udg"ent after tr al and th s #udg"ent s appealed4 what happens pend ng appeal to a wr t of prel " nary n#unct on ssued $y the tr al court wh le the case was pend ng w th t% &+3() A. )he preliminary injunction is not ipso facto dissolved if the judgment of dismissal is silent on the matter as, otherwise, the case will become moot despite the appeal. $o, the preliminary

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injunction is dissolved only if the court e6pressly says so. -7imaunahan v. AranasI :9 *hil 9"", 90, (+;9#).. )he rule is different in case of a permanent injunction, in which case %#;, $9 e6pressly providing that the judgment granting, dissolving, or denying the injunction is immediately operative. Q. Can the .TC ssue a wr t of prel " nary "andatory n#unct on n an act on of unlawful deta ner% &'() A. ?o. Art. #";, ? authori4es an () in forcible entry cases only. to issue a writ of preliminary mandatory injunction

Q. 14 a res dent of San Juan4 .etro .an la4 entered nto an agree"ent w th D4 a res dent of Que5on C ty4 respect ng a p ggery $us ness n .ar lao4 :ulacan. They Huarreled o!er the "anage"ent and control of the $us ness4 and so 1 sued D n RTC2QC wh ch ssued a prel " nary n#unct on restra n ng D4 h s no" nees4 and all persons cla " ng under h " fro" enter ng the p ggery co"pound n .ar lao4 :ulacan. D "o!ed to l ft the prel " nary n#unct on on the ground that t s sought to $e enforced $eyond the terr tor al #ur sd ct on of the RTC2QC. Resol!e the "ot on. A. (otion to lift denied. An injunction to restrain acts committed outside the territorial jurisdiction of the issuing court is valid where the principal business addresses of the parties and the decisions on the acts to be restrained are located and originated within the court2s jurisdiction. (@mbassy 8arms, Inc. v A, +&& $ %A -+;;,., !nd 7iv.)

EI.

DISCOB@RG

Q0 Fwor6 product ruleF A' )he rule which immuni4es from discovery the notes, impressionss and other work product of the lawyer gathered or obtained in preparation for litigation.

7epositions Q. &a) Can a party ta6e the depos t on of a person w thout any show ng that the deponent w ll $e una!a la$le as a w tness at the tr al% &$) If so4 can such depos t on $e used n e! dence% &+,,D . dter" @Aa" IBa$) A. (a) 1es. Availability of the deponent as a witness at the trial will affect the party2s right to use the deposition / not his right to take it. $ee 7asmarinas Carments, Inc. v. %eyes, !!" $ %A &!!-!nd 7iv.., +;;#). (b) 1es, under the conditions and for the limited purposes stated in $ection 9, %ule !9. Q. Suppose 1 had ntroduced n e! dence a pre2tr al depos t on of D>s general "anager wh ch conta ned a state"ent that the co"pany had no $udget for the current year for repa r of the r !eh cles4 "ay 1 thereafter & .e.4 after the general "anager had test f ed for D) ntroduce e! dence that the general "anager>s reputat on for truth and !erac ty s $ad% *+,,, U1 :arops I/

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A. 1es, by using the deposition as substantive evidence, * had not thereby made the general manager his own witness (%ule !9, $ec. &). Eence, the impeachment of 72s witness by reputation evidence is still open to *. (oreover, by presenting the general manager2s deposition, * in effect made this general manager an adverse/party witness under %ule +#!, $ec. +! and so he may be impeached by * as if he was called by 7. Q. S nce a depos t on off cer cannot rule on o$#ect ons to e! dence4 what would $e the po nt of ra s ng any o$#ect on to e! dence at the depos t on2ta6 ng% &'() *+,,- . dter"s BII$/ A. $ee %ule !9, $ec. !; (e). %equest for admission Q. 7here the defendant fa ls to answer a reHuest for ad" ss on ser!ed on h " $y pla nt ff as6 ng for ad" ss on of all the "ater al allegat ons of the co"pla nt4 what s the pla nt ff>s $est procedural recourse% &'() *+,,, . dter" BI/ A. Ee should file a motion for summary judgment because the material allegations of the complaint are not disputed. ($ee Allied RRRRRRR3usiness 7evelopment RRRRRRvs. A, C% ?o. ++&9#RR, 7ec. 9, +;;R) o.,

Q. .ay d sco!ery st ll $e resorted to $y a party l t gant e!en after the pro"ulgat on of f nal and eAecutory #udg"ent% &'() A. 1es. $ee %#;, $ections #&/9,.

Q. Does a party l t gant en#oy any d sco!ery r ghts after the pro"ulgat on of f nal and eAecutory #udg"ent% &'() A. 1es. $ee %#; $ecs. #&/9,.

Q. 7here the defendant fa ls to answer a reHuest for ad" ss on ser!ed on h " $y pla nt ff as6 ng for ad" ss on of all the "ater al allegat ons of the co"pla nt4 what s pla nt ff>s $est procedural recourse% A. Ee should file a motion for summary judgment because the material allegations of the complaint are not disputed. ($ee Allied... 3usiness 7evelopment o. v A, C% ?o. ++&9#0) Q. The court ssued a su$poena duces tecu" order ng the defendant Fto $r ng w th her whate!er docu"ent s n her possess on relat !e to th s case.F Is t poss $le to Huash th s su$poena duces tecu" and4 If so4 on what grounds% A. 1es. Dn ! grounds, to wit' +) it is unreasonable and oppressive as it requires the production of numerous books, documents or things that are not properly described or identifiedI or, !) if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. (%ule !+, $ec 9I Hy v Aleonar, ;9 D.C. p +;:+ - +;;#I A .)

EII. 1R@2TRIC8
Q. The co"pla nt was d s" ssed for fa lure of the pla nt ff to appear at the pre2tr al desp te due not ce. .ay he re2f le the co"pla nt% &'() *+,,- . dter"s BI$/

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A. ?o. )he dismissal for non/suit is effectively for failure to prosecute and is therefore an adjudication on the merits under $ection # of %ule +:.

EIII. TRIC8
$ubpoena Q. .ay a court order the ""ed ate arrest of a w tness who has fa led to o$ey a su$poena n a case pend ng w th t% &+,,? . dter" @Aa" E$) A. ?o. 8ailure to obey subpoena constitutes indirect not direct contempt for which the alleged contemnor could not be adjudged guilty without hearing. *roperly, the court should first issue an order requiring the alleged contemnor to show cause why he should not be punished for disobedience to its process in order to give him a chance to e6plain his failure to appear as witness. $ee Cardones v. 7elgado, "& $ %A "&+ (+;:9). Q. Iow can you4 as a party to a c ! l act on4 access a docu"ent under the control of a non2 party% *+,,, U1 :arops BII/ A. 3y subpoena duces tecum. 7emurrer to evidence Q. Cct on to collect on a pro" ssory note. Ct the tr al4 pla nt ff presented the note through ts records custod an who had no personal 6nowledge of the transact on. Cfter pla nt ff rested4 the defendant f led a de"urrer to e! dence on the ground that pla nt ff>s e! dence was "erely hearsay. The tr al court granted the de"urrer. On appeal4 howe!er4 the CC re!ersed and re"anded the case to the tr al court for further proceed ngs. D d the CC act correctly% &+3() *;333 9 nals I/ A. ?o. A should have rendered judgment on the basis of the evidence submitted by petitioner. )he evidence was sufficient to support plaintiff2s claim. @ven if plaintiff2s witness had no personal knowledge of the promissory note, this note is still admissible to prove its e6istence and its tenor as these facts are of independent relevance. Hnder section +, %ule ##, defendant is deemed to have already waived his right to present evidence as, by filing a demurrer, he is deemed to have elected to stand on the insufficiency of plaintiff2s evidence. (%adiowealth 8inance co. v. 7el %osario, C% ?o. +#&:#;, 5uly 0, !,,,) Q. .ay a court d s" ss an act on for fa lure of pla nt ff>s lawyer to appear at the tr al desp te due not ce% &'()

EIB. JUDK.@NTS
Q. 7hen s a #udg"ent of a tr al court cons dered to ha!e $een pro"ulgated% &'() *+,,' 9 nals IIa/ A. In civil cases, upon the filing with the clerk of court of the signed decision. In criminal cases, upon the reading of the judgment in the presence of the accused and of any judge of the court in which it was rendered. 5udgment on the merits

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Q. In a su t on pro" ssory notes wh ch st pulated that the nterest due shall $e co"pounded Huarterly4 the RTC rendered #udg"ent order ng D to pay 1 the notes w th +=( nterest per annu". Cfter the #udg"ent $eca"e f nal and eAecutory4 D tendered to 1 an a"ount n full pay"ent of the #udg"ent de$t $ut 1 re#ected th s tender on the ground that per 1Ns co"putat on the #udg"ent de$t was "uch "ore. The d fference $etween the two a"ounts ar ses fro" the d sagree"ent as to whether the #udg"ent allowed Huarterly co"pound ng of nterestL 1 sa d that t d d4 $ut D cla "ed t d d not. D then cons gned the a"ount w th the tr al court under a "ot on pray ng for a rul ng that the #udg"ent d d not allow Huarterly co"pound ng of nterest4 $ut 1 opposed the "ot on on the ground that the nterest due "ust $e co"pounded on a Huarterly $as s s nce such s the ntent on of the court and s necessar ly "pl ed fro" the f nd ngs of fact n the $ody of the dec s on. The tr al court ssued an order deny ng the OCons gnat on and .ot onP f led $y D and hold ng that 1 was ent tled to co"pound nterest Huarterly e!en f the #udg"ent d d not pro! de for such co"pound ng n ts d spos t !e port on4 the reason $e ng that such a"$ gu ty s clar f ed n the $ody of the dec s on. Is th s order !al d% &+,,D . dter" @Aa" E) A. ?o. )he settled doctrine is that if there is a conflict between the body of the decision and the dispositive part, the latter should prevail. It is only when there is an ambiguity in the dispositive part that the court may resort to the body of the decision to clarify the ambiguity. 3ut this doctrine applies only when there is a conflict between the body and the dispositive portion. Eere, however, the dispositive part is of the judgment is clear and unambiguous, so that there is nothing to interpret or clarify even if it is in conflict with the statements in the body. In such a case the rule is clear, it is the dispositive part that should prevail. )he judgment here is clear for the payment of interest at +&O per annumI it cannot be taken to be an interest to be compounded quarterly. Fhat actually happened may be an oversight on the part of the trial judge in not including in the judgment a provision for the payment of compound interest on a quarterly basis. )here is a parallel neglect on the part of counsel for * in not seeking a modification of the judgment before it became final and e6ecutory. )he error cannot be cured by amendmentI it is not a mere clerical error but a judicial error. Carcia v. Amin ;, D.C. !,;" ( A, +;;,) ?unc pro tunc judgments Q. Ser! ce of su""ons was "ade $y a 1N1 pol ce"an n the "un c pal ty where the defendant res des. Ct pla nt ff>s $ehest4 an aff da! t was eAecuted $y the for"er pres d ng #udge of the ssu ng court that he had ssued an order author 5 ng ser! ce of su""ons $y the pol ce"an $ut the court record showed no such appro!al. So4 pla nt ff4 su$" tt ng th s aff da! t to the court4 "o!es for the ssuance of an order nunc pro tunc stat ng the reHu s te author ty for ser! ce of su""ons $y th s pol ce"an. Should th s "ot on $e granted% &+,,? . dter" @Aa" II$) A. ?o. A nunc pro tunc entry is an entry made now of something which was previously done to have the effect as of the former date. Fithout some visible data in the record of the issuance of such an order, a nunc pro tunc entry is not justified. (lichauco v. )an *ho, "+ *hil. 00! -+;!#.) 5udgments by compromise and upon confession Q. On 3+ July +,='4 the RTC ssued #udg"ent4 wh ch was duly ser!ed on the part es one wee6 later4 $ased on co"pro" se $etween 1 and D Corporat on under wh ch D was supposed to "a6e pay"ents to 1. On +D 9e$ruary +,,;4 due to D>s alleged fa lure to "a6e so"e of the pay"ent reHu red under the co"pro" se #udg"ent4 1 f led an act on n the sa"e RTC to co"pel D to "a6e these pay"ents. In answer ng the co"pla nt4 D ad" tted the pro"ulgat on of the co"pro" se #udg"ent $ut alleged that t was entered nto $y ts then 1res dent w thout the reHu s te author ty of the stoc6holders and that t was therefore ultra ! res. Can th s defense st ll $e enterta ned% &+,,? . dter" @Aa" BIa)

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A. ?o more. )he compromise judgment was immediately final and e6ecutory and its validity cannot be assailed collaterally unless the ground of attack is lack of jurisdiction or an irregularity apparent on the face of the record or because it is vitiated by fraud. ( adano v. adano, 9; $ %A ## -+;:#.) Q. Can a party "o!e to set as de a co"pro" se #udg"ent% grounds% *+,,? 9 nals B/ If so4 how and on what

A. Dnly thru a %ule #& petition for relief and on the grounds stated in this %ule. A %ule #: motion, which presupposes a non/final judgment, is not available because a compromise judgment is immediately final and e6ecutory. ($amonte v. $amonte, 09 $ %A "!9 -+;:".). 7eclaratory judgments Q. .ay a th rd2party co"pla nt $e f led n an act on for declaratory rel ef% *+,,? 9 nals IB/ A. ?o. A petition for declaratory relief seeks no positive or affirmative, much less any material, relief beyond the adjudication of the legal rights which are subject of the controversy between the parties. 3ut in a third/party complaint, the defendant or third/party plaintiff is supposed to seek contribution, indemnity, subrogation or any other relief from the third/party defendant in respect to the claim of the plaintiff against him. ( ommissioner of ustoms vs. loribel, :: $ %A 9"; -+;::.). Q. :oth pla nt ff and defendant were duly ser!ed cop es of the dec s on on July +. Ne ther party appeals or f les a "ot on for new tr al or recons derat on. 7hen does th s dec s on $eco"e f nal% A. !) Hpon the date of entry of this decision in the book of entries of judgments. (%ule #0, sec

Q. C ra lroad coll s on n#ures '3 passengers all of who" $r ng separate act ons aga nst the ra lroad. Cfter the ra lroad w ns the f rst ;' su ts4 a pla nt ff w ns n su t ;?. Should not the doctr ne of Fcollateral estoppelF $e appl ed to allow pla nt ffs ;- through '3 auto"at cally to reco!er% A. ?o. It would be unfair to the defendant railroad since suit !0 may have been for small or nominal damages only so that the railroad had little incentive to defend vigorously. 3esides, the judgment relied upon in suit !0 as a basis for the estoppel may itself be inconsistent with one or more previous judgments in favor of the defendant. Q. .ay #udg"ent $e rendered n the alternat !e%

A. 1es. @.g. in a replevin case, the judgment is in the alternative for the delivery of the property or for its value in case delivery cannot be made. (%ule 0,, sec ;)

EB. R@BI@7 CND CORR@CTION O9 TRIC8 COURT @RRORS


Q. Cct on for $reach of contract $y 1 aga nst D n the RTC. On D>s "ot on4 the n t al tr al was postponed ' t "es. On the ?th resett ng of the case for tr al4 ne ther defendant nor h s lawyer appeared although a "essenger of defendant>s lawyer f led then and there a "ot on for postpone"ent $y D>s lawyer on the ground that he has another hear ng on the sa"e date and t "e n an out2of2town court. The court den ed the "ot on for postpone"ent and allowed 1 to present h s e! dence eA2parte and cons dered D to ha!e

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wa !ed h s r ght to present e! dence. Thereafter4 the court cons dered the case su$" tted for dec s on. C$out two "onths later4 the court rendered a dec s on n fa!or of 1 and aga nst D. D then f led a pet t on for cert orar w th the Court of Cppeals cla " ng that the RTC had acted w th gra!e a$use of d scret on n deny ng h s "ot on for postpone"ent and declar ng h " as ha! ng wa !ed h s r ght to present e! dence. 7h le th s pet t on was pend ng n the CC4 defendant perfected h s appeal fro" the RTC>s dec s on to the CC also. 14 appear ng now as pr !ate respondent on the cert orar pet t on4 "o!ed n the CC for the d s" ssal of the pet t on on the ground that D had lost h s r ght to a!a l of the re"edy of cert orar when he perfected an appeal fro" the RTC dec s on. Resol!e 1>s "ot on to d s" ss the cert orar pet t on. &+3() Q. 7hen s a .ot on for Recons derat on of an RTC #udg"ent cons dered pro for"a4 and what s the r s6 to the "o!ant n f l ng such a "ot on% &'() A. If based on %#:$+(c), a motion for reconsideration is pro/forma if it does not point out specifically the findings of conclusions in the judgment which are not supported by evidence or which are contrary to law, making e6press reference to the pertinent evidence or legal provisions. -Alvero v. 7ela %osaI :0 *hil 9!&, 9#". If a second (% where it is not based on a ground not e6isting or not available where +st (% was made (%#:$9I ity of ebu v. (endo4a 0! $ %A 99, (+;:"). It is also pro/forma when it has no notice of hearing or a defective notice of hearing. A pro/forma (% will not interrupt period of appeal. @6traordinary remedies (prerogative writs' certiorari, prohibition and mandamus) as modes of review) Also *%DLI$ID?AB %@(@7I@$ (%eplevin) Also *A%)I@$ (?ewAadditional parties' Intervention) Q. 1 f led a co"pla nt for the reco!ery of two $arges fro" the possess on of the 1h l pp ne Coast Kuard see6 ng the ssuance of a wr t of reple! n for the purpose. The tr al court4 after the f l ng $y 1 of the reHu s te $ond4 ssued a wr t of reple! n for the se 5ure of the two $arges wh ch n the "eanwh le were sold to a th rd party. .eanwh le4 E f led a "ot on for nter!ent on4 cla " ng ownersh p o!er the two $arges wh ch t allegedly acHu red for" 1 n a pu$l c auct on sale. The tr al court den ed E>s "ot on for lea!e to nter!ene and ordered the release of the $arges to 1. D ssat sf ed w th th s order4 E f led a pet t on for cert orar n the Court of Cppeals contend ng that the tr al court gra!ely a$used ts d scret on n deny ng E>s "ot on for lea!e to nter!ene. Iow should the Court of Cppeals resol!e the cert orar pet t on% &+,,D . dter" @Aa" BI) A. )he ourt of Appeals should deny the certiorari petition because other adequate remedies were available to petitionerI for instance, a motion for reconsideration of the order for the issuance of writ of replevin, or G could have filed a third/party claim over the barges under $ection :, %ule 0,, or, of course, G could have instituted the proper action to vindicate its claim to these barges. 3ut back to the merits of the motion for intervention, the %ules allow such intervention only where it will not unduly delay or prejudice the adjudication of the rights of the original parties and where the intervenor2s rights may not be filly protected in a separate proceeding. Eere, the barges had already been sold to a third party and to allow G to intervene in the replevin suit would merely make the proceedings unnecessarily complicated and new and unrelated issues on conflicting claims of ownership, authenticity of documents of title and regularity in the mode of acquisition thereof may be e6pected to be raised. (3ig ountry %anch orp. v. A, !: $ %A +0+ - !nd 7iv.., +;;#)

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Prof. Antonio R. Bautista

Q. Suppose the "a n case s d s" ssed $y #udg"ent after tr al and th s #udg"ent s appealed4 what happens pend ng appeal to a wr t of prel " nary n#unct on ssued $y the tr al court wh le the case was pend ng w th t% &+3() A. )he preliminary injunction is not ipso facto dissolved if the judgment of dismissal is silent on the matter as, otherwise, the case will become moot despite the appeal. $o, the preliminary injunction is dissolved only if the court e6pressly says so. -7imaunahan v. AranasI :9 *hil 9"", 90, (+;9#).. )he rule is different in case of a permanent injunction, in which case %#;, $9 e6pressly providing that the judgment granting, dissolving, or denying the injunction is immediately operative. Q0 :y sheer co nc dence4 Ctty. 8ope5 was on the sa"e day4 <3 June +,,+4 ser!ed w th ad!erse dec s ons of the Court of Cppeals and the Reg onal Tr al Court. In each case4 he f led a "ot on for recons derat on s "ultaneously on +3 July +,,+. Ie rece !ed not ces of the den al of h s two "ot ons for recons derat on on +' Cugust +,,+. If Ctty. 8ope5 dec des to appeal n each of the two cases 2 &a) 7hat "ode of appeal should he pursue n each case% &$) Iow would he perfect each appeal% &c) 7 th n what t "e should each appeal $e perfected% &+3() A' (a) (+) 8rom the ourt of Appeals to $upreme ourt / appeal by certiorari under %ule 9". (!) 8rom the %egional )rial ourt to ourt of Appeals / ordinary appeal on questions of fact and law. (#) 8rom the %egional )rial ourt to $upreme ourt / appeal by certiorari on questions of law only. (b) (+) 8rom ourt of Appeals to $upreme ourt, by filing a petition for review on certiorari with the supreme ourt and serving a copy on the ourt of Appeals and the adverse party. (!) 8rom %egional )rail ourt to ourt of Appeals by filing a notice of appeal with %egional )rial ourt and serving a copy on the adverse party. (#) 8rom %egional )rial ourt to $upreme ourt, by filing a petition for review on certiorari with $upreme ourt and serving a copy on the lower court and the adverse party. (c) (+) 8rom ourt of Appeals to $upreme ourt, on or before #, August +;;+, or fifteen days from notice of the denial of the motion for reconsideration. ($ec. + of %ule 9") Q0 On what grounds "ay the tr al court d s" ss an appeal ta6en fro" ts dec s on% &'() A' Dn two (!) grounds only, to wit' (a) for having been taken out of time, or (!) for non/payment of the docket or other lawful fees within the reglementary period. (%ule 9+, $ec. +#, as amended, effective ,+ (ay !,,,) Q0 Defendant4 who was ser!ed the .TC>s ad!erse #udg"ent n an e#ect"ent case on 3+ June ;333 "o!ed on 3< June ;333 for recons derat on of th s ad!erse dec s on. The .TC>s order deny ng the "ot on for recons derat on was ser!ed on defendant on ;3 June

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REMEDIAL LAW REVIEW Past exams Civil Procedure

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Prof. Antonio R. Bautista

;333. Then4 on ;- June ;3334 defendant f led a not ce of appeal fro" the e#ect"ent dec s on to the RTC. Is the appeal t "ely f led% &'() A' ?o. )he ejectment decision having presumably been rendered by the () under the %evised %ule on $ummary *rocedure, a motion for reconsideration is a prohibited pleading. (+;;+ revised %ule on $ummary *rocedure, $ec. +; -c.). $o, the filing of this motion did not suspend or toll the running of the period for finality of the ejectment decision which thus became final on +0 5une !,,,. Q0 Does an appeal fro" a f nal #udg"ent of the RTC stay the enforce"ent of th s #udg"ent% &'() A' 1es, unless it is an appeal from a judgment of the %) in the e6ercise of its appellate jurisdiction over a civil case governed by the %evised %ule on $ummary *rocedure. (+;;+ %evised %ule on $ummary *rocedure, $ec. !+I %ule :,, $ec. !+) Q0 F"ater al data ruleF A' %ule 9+, $ec. 0. Q0 Cn e#ect"ent co"pla nt was d s" ssed $y the .TC for pla nt ff>s alleged fa lure to esta$l sh h s pleaded cause of act on. On appeal4 the RTC aff r"ed n a dec s on wh ch reasoned that defendant2tenant had not defaulted n the pay"ent of rentals and that the lease had a f Aed ter". On recons derat on4 the RTC re!ersed n a dec s on as follows0 FCons der ng the grounds for pla nt ff2appellant>s "ot on for recons derat on4 the defendant2appellee>s oppos t on and reply to oppos t on4 the dec s on of th s court s here$y recons dered4 there$y re!ers ng the dec s on of the court a Huo and nstead a dec s on s now rendered n fa!or of pla nt ff2appellant and aga nst the defendant2appellee as pryaed for n pla nt ff2appellant>s co"pla nt.F Is the dec s on !al d% &'() A' ?o. It does not, contrary to $ection + of %ule #+ and $ection +9 of Article LIII of the onstitution, state the law and facts on which it is based (3ased on Anasco v. 5udge of %) / *asig, && D.C. &,+& - AI +;&;.) Q. 7hat are the ways $y wh ch a f nal and eAecutory #udg"ent "ay $e attac6ed% &'() *+,,, . dter" EIB/ A. a.) 3y petition for reliefI b.) 3y direct action to annul and enjoin the enforcement of the judgment where the alleged defect is not apparent on its face or from the recitals contained in the judgmentI c.) 3y special civil action of certiorariI and d.) 3y collateral attack where that challenged judgment is void upon its face or its nullity is apparent from its own recitals. ($ee 8ilinvest redit orp. vs. IA , !,: $ %A "; -+st 7iv., +;;!.) Q. D st ngu sh $etween a pet t on for cert orar as a spec al c ! l act on and a pet t on for cert orar as a "ode of appeal. *+,,, U1 :arops EI/ A. a.) As a mode of appeal it should be filed within +" days from notice of the judgment or of denial of the motion for reconsideration filed in due time. (%ule 9", $ec. !). As special civil action, it may be filed within 0, days from notice of the judgment. (%ule 0", $ec. 9) b.) )he grounds are different. ($ee %ule 9", $ec. 0 and %ule 0", $ec. +) As a mode of appeal, the respondent court need not be made a party to the petitionI as a special civil action, the respondent court should be made a party to the petition.

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REMEDIAL LAW REVIEW Past exams Civil Procedure

33

Prof. Antonio R. Bautista

Appellate proceedingsI review and correction by another court on appeal Q. Is an order deny ng a "ot on for recons derat on of a f nal and appeala$le #udg"ent tself appeala$le% &+,,? . dter" @Aa" I$) A. Arguably not. Dtherwise, a party2s period to appeal from the final judgment may be unduly e6tended whereas the time during which the motion for reconsideration was pending is supposed to be merely deducted from the time to appeal, e6cept in the case of a motion for reconsideration of a A decision which under %ule 9" completely tolls the time to appeal. Q. In an act on $y 1 aga nst D4 the RTC rendered #udg"ent wh ch was ser!ed on 1 on 3+ July +,,' and on D on 3' July +,,'. On ;3 July +,,'4 D f led h s not ce of appeal fro" th s #udg"ent to the CC4 and on the sa"e date 1 f led a "ot on fro recons derat on of the sa"e #udg"ent. Is 1>s "ot on for recons derat on t "ely% &+,,? . dter" @Aa" IBa) A. ?o. )he decision had become final in respect to *. )he clause Kupon the e6piration of the last day to appeal by any partyK in $ec. !# of the Interim %ules refers to 7 whose period to appeal has not yet e6pired, *2s period to appeal having e6pired on +0 5uly +;;". (see Abe Industries, Inc. v. A, +0! $ %A 9& -!nd 7iv., +;&&.) Q. Is there any case where an appeal "ay $e "ade to the SC $y not ce of appeal% &+,,< . dter" @Aa" IBa) A. ?o answer Q. 7hat should the CC do to an appeal $y not ce of appeal fro" the RTC to t when the appellant ra ses ssues of law only4 or to an appeal $y not ce of appeal fro" a #udg"ent of the RTC n the eAerc se of ts appellate #ur sd ct on% &+,,< . dter" @Aa" IB$) A. ?o answer Q. Is there any dec s on of the .TC n c ! l cases wh ch s d rectly re! ewa$le $y the CC% &+,,< . dter" @Aa" BIa) A. ?o answer Q. In c ! l cases4 where should the appellant pay the appellate court doc6et fee and what s the effect of non2pay"ent of such fee% &'() *;333 9 nals II/ A. )he fee should be paid to the clerk of court which rendered the judgment or final order appealed from (%ule 9+, $ec.9). ?on/payment of such fee is ground for dismissal of the appeal by the trial court (%ule 9+, $ec. +#, as amended eff. + (ay !,,,) or by the appellate court (%ule ",, sec. + -c.). Q. Can a th rd2party pla nt ff appeal fro" an order d s" ss ng h s th rd2party co"pla nt for fa lure to prosecute% &'() *+,,, . dter" EBII/ A. Dnly with the court2s permission. (%ule 9+, $ec. +-g.. $ee also %ule #0, sec. ") Q. Can a tr al court st ll act on a "ot on for eAecut on pend ng appeal of ts #udg"ent after the appeal fro" th s #udg"ent has already $een perfected% &'() *+,,' 9 nals III$/ A. 1es. $o long as the records of the case have not been transmitted to the appellate court (@chaus v A, +&: $ %A 0:!).

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34

Prof. Antonio R. Bautista

Q. In an e#ect"ent case $y 1 aga nst D4 the .TC rendered #udg"ent order ng D to !acate the pre" ses and to pay 1 rentals. In due course4 D f led h s not ce of appeal and supersedeas $ond4 whereupon the .TC ordered the trans" ttal of the case records to the RTC. :ut the RTC d s" ssed the appeal upon D>s fa lure to pay the appeal fee w th n the regle"entary per od. Is the d s" ssal correct% &+3() *+,,- . dter"s B/ A. ?o. Fhile %ule +9+, $ection & requires the payment of an appeal fee for an appeal taken from the () to the %) , the only requirement for taking an appeal from an %) judgment under $ection !, of the Interim %ules is the filing of a notice of appeal. 8ailure to pay the appellate court2s docket fee within the reglementary period confers a discretionary and not a mandatory power to dismiss the appeal. ($antos v A, !"# $ %A 0#!) @6traordinary remedies (prerogative writs' certiorari, prohibition and mandamus) as modes of review Q. In an act on for unlawful deta ner $y 1 aga nst D n the .TC4 #udg"ent was rendered aga nst D order ng h " to y eld the pre" ses to 1. On D>s t "ely appeal to the RTC4 the latter found that he had $een unlawfully w thhold ng possess on of the pre" ses for "ore than one year pr or to the f l ng of the co"pla nt and that therefore the proper act on was acc on pu$l c ana and not unlawful deta ner4 and the RTC there$y declared the .TC w thout #ur sd ct on o!er the case and null f ed the proceed ngs there n. Now 4 1 f led a Rule ?' pet t on for cert orar w th the CC aga nst th s RTC dec s on. Iow should the CC resol!e the cert orar pet t on% &+,,? . dter" @Aa" IIa) A. )he A should dismiss the certiorari petition. )here was on the %) 2s part no error of jurisdiction but only error of judgment and appeal was an available and adequate remedy. (8ernand v. Lasque4, #+ $ %A !&& -+;:,.). Q. 1 f led an act on n the CC for "anda"us aga nst D and also prayed for "oral and eAe"plary da"ages. Does the CC ha!e #ur sd ct on o!er the act on% &+,,< . dter" @Aa" BIIIa) A. ?o answer %eview and correction by another court in an independent action' direct attack Q. 1 f led an act on aga nst D for unlawful deta ner w th the .TC on the ground of non2 pay"ent of rent. Cfter D f led h s answer4 and wh le the case was st ll pend ng4 D d ed. Thereafter4 D>s he rs cont nued4 w thout any for"al su$st tut on4 w th the case and presented the r pos t on paper for the defendant. Cfter due hear ng4 the .TC rendered #udg"ent4 order ng D>s he rs to !acate the pre" ses. Cfter th s #udg"ent $eca"e f nal and eAecutory4 D f led an act on n the RTC to annul the #udg"ent on the ground that t was rendered w thout #ur sd ct on o!er D>s he rs4 there ha! ng $een no for"al su$st tut on of part es. Is the pet t on to annul the .TC dec s on tena$le% &+3() *+,,? . dter"s IE/ A. ?o. 5urisdiction over the person was acquired by the voluntary appearance of 72s heirs. At any rate, these heirs, having participated in the litigation, are already estopped to question the court2s jurisdiction over them. )he () case was properly continued since the ejectment case is an action which survives, and the judgment in an ejectment case is binding on the parties and their successors/in/interest by title subsequent to the commencement of the action. (Lda. 7e $ala4ar v A, !", $ %A #,"). Q. D sold a parcel of land to 1 w th a r ght to repurchase w th n three &<) "onths. 9a l ng to repurchase w th n the agreed per od4 1 o$ta ned t tle n h s na"e and de"anded

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Prof. Antonio R. Bautista

that D !acate the pre" ses. S nce D fa led to heed the de"and4 1 f led an act on aga nst h " for e#ect"ent and su""ons was ser!ed $y su$st tuted ser! ce on D>s $rother who was then res d ng n the place. 9or fa lure to f le an answer4 D was declared n default and ad#udged to !acate the pre" ses and to pay certa n rentals. D appealed the dec s on to the RTC on the ground that the ser! ce of su""ons was not !al d. Thereafter4 D f led a not ce of appeal s gn fy ng h s ntent on to appeal the #udg"ent to the CC. In the "eanwh le4 D f led another act on $efore the Court of Cppeals to annul the RTC #udg"ent n wh ch he aga n assa led the !al d ty of the su$st tuted ser! ce of su""ons n the RTC. 7hat should $e the rul ng on the pet t on to annul% &+3() *+,,- . dter"s II/ A. 7ismiss the petition. It is barred by res judicata under $ec. 9;(c) of %ule #;. )he decision in the ejectment suit had become final because the proper remedy against the %) judgment is a petition for review and not an appeal. (1baTe4 v A, !"# $ %A "9,). %eview and correction by the trial court of its own proceeding' (otion for reconsideration or new trial *etition for relief Q. Defendant was declared n default $y the RTC for fa lure to f le a respons !e plead ng and thereafter #udg"ent $y default was rendered aga nst h ". Th s dec s on $y default was ser!ed on the defendant on ;' July +,,'4 and on 3+ Cugust +,,' defendant f led a "ot on to ha!e th s dec s on recons dered and set as de and for t to $e allowed to f le ts answer on the ground that t had already actually pa d the o$l gat on sued upon n the co"pla nt. The RTC den ed the "ot on for recons derat on and a copy of the den al order was ser!ed on defendant on ;- Octo$er +,,'. On 3D No!e"$er +,,'4 defendant f led w th the RTC a pet t on for rel ef fro" #udg"ent. Co""ent on the t "el ness and appropr ateness of th s pet t on for rel ef. &+3() *+,,? . dter"s BI/ A. )he petition for relief is improper and premature. 7efendant had until ," ?ovember +;;" within which to perfect an appeal, and therefore, the petition for relief was the wrong remedial recourse at the time. (Driental (edia Inc. v A, !", $ %A 09:) Q. In an act on $y 1 aga nst D4 the RTC #udg"ent n fa!or of 1 was ser!ed on D on 3< .ay +,,,4 and on += .ay +,,, D f led a "ot on for new tr al on the ground of newly d sco!ered e! dence. The RTC den ed the "ot on for new tr al n an order wh ch was ser!ed on D on 3+ July +,,,. On the follow ng day4 .e.4 3; July +,,,4 D f led h s not ce of appeal. The RTC den ed the appeal for ha! ng $een f led out of t "e4 and the den al order was ser!ed on D on +; July +,,,. D f led on +< July +,,, n the !ery sa"e case a pet t on for rel ef fro" #udg"ent on the ground of acc dent or eAcusa$le neglect. Is the pet t on for rel ef the proper re"edy% &+3() *+,,, . dter" BII/ A. 1es, if the right to appeal was lost through no fault or neglect of 7. 3ut mandamus to compel the %) to give due course to the appeal may be a more appropriate remedy because the right to appeal RRRRRRRRRRRRRRRRRRlost, 7 having an e6tra day, and theR RRRRR up RRRRRRRR5uly +;;; within which to appeal. (%ule 9+, $ec. #, !nd par. In relation to %ule !!, $ec. !) Q. Suppose n Huest on a$o!e4 the RTC den es D>s pet t on for rel ef4 what re"edy4 f any4 s a!a la$le to D to challenge the order deny ng the pet t on for rel ef% &'() *+,,, . dter" BIII/ A. Dnly a %ule 0" petition for certiorari, since an appeal is not available. (%ule 9+, sec. R+ -b.) Q. Is a "ot on for recons derat on wh ch deals w th the sa"e ssues and argu"ents posed and resol!ed $y the tr al court n ts dec s on pro for"a% &'() *+,,- . dter"s III$/

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REMEDIAL LAW REVIEW Past exams Civil Procedure

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Prof. Antonio R. Bautista

A. ?ot necessarily. A pleader preparing for a motion for reconsideration must, of necessity, address the arguments made or accepted by the trial court in its decision. If a motion for reconsideration may not discuss the issues passed upon by the court, then the losing party would be confined to filing only motions for reopening and new trial and that would in effect eliminate $ec. +(c) of %ule #:. ((arikina Lalley 7ev2t. orp. v 8lojo, !"+ $ %A &:). Q. Is a "ot on for recons derat on wh ch deals w th the sa"e ssues and argu"ents treated n the "o!ant>s "e"orandu" and already cons dered and resol!ed $y the tr al court n ts dec s on pro for"a% &+3() *+,,? . dter"s B/ A. ?ot necessarily. A motion for reconsideration has to Kpoint out specifically the findings and conclusions of the judgment which are not supported by the evidence or which are contrary to law. $ince one of the ends of a motion for reconsideration is to convince the court that its ruling is erroneous and improper, contrary to law or the evidence, the movant has to dwell of necessity on the issues passed upon by the court. If movant cannot discuss these issues, he would be confined to filing only motions for reopening and new trial. A reasonable application of the pro forma doctrine relating to motions for reconsideration is called for because this doctrine impacts on the right to appeal, an important and valuable right ((arikina Lalley 7ev2t. orp v 8lojo, C% ++,&+, ,& 7ecember +;;"). Q. RTC2.an la :ranch '3 rendered a default #udg"ent aga nst defendant n C ! l Case No. +;<D'?. Cfter th s dec s on $eca"e f nal4 RTC2.an la granted pla nt ff>s "ot on for eAecut on. In the "eanwh le4 defendant f led n the RTC2.an la :ranch +;4 another case2 C ! l case +;<-=,2wh ch was a pet t on for rel ef fro" :ranch '3>s #udg"ent n C ! l case No. +;<D'?. RTC2.an la :ranch +; "otu propr o d s" ssed the pet t on for rel ef for lac6 of #ur sd ct on4 $ut defendant appealed the d s" ssal order to the CC. Ct the sa"e t "e defendant "o!ed n :ranch '3 to Huash the eAecut on wr t there ssued on the ground that the default #udg"ent was st ll re! ewa$le under Rule D+4 Sec. ; on defendant>s appeal fro" the order deny ng h s pet t on for rel ef. @!aluate 2 a. the correctness of :ranch +;>s d s" ssal order and of defendant>s appeal fro" th s order. $. The "er ts of defendant>s "ot on n :ranch '3 to Huash the eAecut on wr t. &;3() *+,,? . dter"s I/ A. a. 3ranch +!2s dismissal is correct. 7efendant did not comply with %ule 9+, $ec. !. Ee did not file his petition for relief in the same case but in another case. 3ranch +! cannot take cogni4ance of the petitionI only 3ranch ", could do so. 7efendant2s appeal to the A was wrong. It should2ve been to the $ through a petition for review on certiorari in accordance with the 5udiciary Act of +;9& as amended by %A "99, and $ec. !" of the Interim %ules. 7efendant2s motion to quash 3ranch ",2s e6ecution should be denied. 3ranch ",2s final judgment could be e6ecuted despite 72s appeal from the order denying his petition for relief. ?o preliminary injunction had been issued pursuant to %ule #&, $ection ". %ule 9+, $ection !, giving the appellate court in an appeal from an order denying a %ule #& petition the power to review the judgment on the merits, does not give the appellate court the power to reverse or modify such power on the merits. $uch a review of the judgment on the merits merely enables the appellate court to determine not only the e6istence of any of the grounds/8A(@/but also the merits of petitioner2s cause of action or defense. ($ervice $pecialists v $heriff, +9" $ %A +#;). Q. 1la nt ff f led an act on n the .TC. On defendant>s "ot on4 the .TC d s" ssed the case for lac6 of #ur sd ct on. 1la nt ff appealed to the RTC. The RTC agree ng that the .TC

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Prof. Antonio R. Bautista

d d not ha!e #ur sd ct on o!er the case4 proceeded4 o!er the defendant>s o$#ect on4 to try the case on the "er ts and thereafter ga!e #udg"ent for the pla nt ff. D d the RTC act correctly% &+3() A. ?o. )he %) should have simply ruled on whether the () 2s order of dismissal was valid or not. 8ollowing %9,$+,, if the %) found that the () had no jurisdiction, all it had to do was to affirm the judgment of the () dismissing the complaint. If the %) found the () to have had jurisdiction, then the %) should have remanded the case to the () for proper hearing. %9,$++ does not apply here because the () did not try the case on the merits. 3esides, defendant objected to the %) 2s trying of the case. -)he problem is modified from the facts of a +;:" A decision in astro v. 7e Cu4man :# DC ;0!# (+;::). $ee new %ules %9, $&. Q. In an act on $y 1 aga nst D4 the RT #udg"ent n fa!or of 1 was ser!ed on D on 3< .ay +,,,4 and on += .ay +,,, D f led a "ot on for new tr al on the ground of newly2 d sco!ered e! dence. The RTC den ed the "ot on for new tr al n an order wh ch was ser!ed on D on 3+ July +,,,. On the follow ng day4 .e. 3; July +,,,4 D f led h s not ce of appeal. The RTC den ed the appeal for ha! ng $een f led out of t "e4 and the den al order was ser!ed on D on +; July +,,,. D f led on +< July +,,, n the !ery sa"e case a pet t on for rel ef fro" #udg"ent on the ground of acc dent or eAcusa$le neglect. Is the pet t on for rel ef the proper re"edy% A. 1es. If the right to appeal was lost through no fault or neglect of *. 3ut mandamus to compel the ) to give due course to the appeal may be the more appropriate remedy because the right to appeal was not really lost, 7 having an e6tra day, and therefore up to ... 5uly +;;; within which to appeal. (%ule 9+, sec #, par ! in relation to %ule !!, $ec !) Q. Suppose that n pro$le" No. II a$o!e4 the RTC den es D>s pet t on for rel ef4 what re"edy4 f any4 s a!a la$le to D to challenge the order deny ng the pet t on for rel ef% A. Q. Dnly a %ule 0" petition for certiorari, since an appeal is not available. (%ule 9+, $ec +-b.) 7hat are the ways $y wh ch a f nal and eAecutory #udg"ent "ay $e attac6ed%

+) 3y petition for relief !) 3y direct action to annul and enjoin the enforcement of the judgment where the alleged defect is not apparent on its face or from the recitals contained in the judgment. #) 3y a special civil action of certiorariI and 9) 3y collateral attack where the challenged judgment is void upon its face or its nullity is apparent from its own recitals. ($ee 8ilinvest redit orp. v IA , !,: $ %A "; -+st 7iv., +;;!.) Q. Can the th rd2party pla nt ff appeal fro" an order d s" ss ng h s th rd2party co"pla nt for fa lure to prosecute% A. Dnly with the court2s permission. (%ule 9+, $ec +-g., $ee also %ule #0, $ec ").

Q. 1 $rought an act on n the RTC to annul a #udg"ent of an .TC n what was thought to $e a "ere unlawful deta ner act on $ut actually was one for resc ss on and therefore not capa$le of pecun ary est "at on. Defendant "o!ed to d s" ss the "ot on on the ground that pla nt ff had not eAhausted all the ord nary re"ed es of new tr al4 appeal4 and pet t on for rel ef. Rule on the "ot on to d s" ss. A. (otion to dismiss denied. )he requirement of prior resort to all of the ordinary remedies of new trial, appeal and petition for relief is contained in %ule 9:, section + and refers to motions for the annulment in the A of judgments or final orders of the %) . (+;;: %ules of ivil *rocedure, %ule 9:, sec +) 3ut there is no requirement that these ordinary remedies be first

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Prof. Antonio R. Bautista


may be filed in the %) .

e6hausted before an action to annul a judgment or final order of an () (%ule 9:, sec +,)

Q. K !e at least one eAa"ple of a c ! l case &not a spec al proceed ng) where n "ult ple appeals are allowed. A. Cenerally, in cases of several and of separate judgments. (%ule #0, secs 9 J "). $pecifically, in actions for recovery of property with accounting and for partition. In these cases the judgment for recovery of property is final and appealable without awaiting the accountingI and an order of partition is final and appealable without awaiting the actual partition. Eence, the accounting or the partition may continue pending the appeal and a second appeal may be taken from the judgment on the accounting or the partition. ((iranda v A :+ $ %A !;" -+;:0.I 7e Cu4man v A, :9 $ %A !!! -+;:0.) M. Eow final judgment may be set asideU

EBI. @N9ORC@.@NT O9 JUDK.@NTS


Q. Co"pl ant $y 1 aga nst D n the .TC for e#ect"ent. The .TC>s #udg"ent for D was duly appealed to the RTC wh ch re!ersed the .TC #udg"ent and ordered D to !acate the pre" ses. Th s RTC #udg"ent was rece !ed $y D>s counsel on +? January +,=-. on ;< January +,=-4 D f led w th the RTC a not ce of appeal of ts #udg"ent nd cat ng that he would appeal t to the CC. Cct ng on th s not ce of appeal4 the RTC on ? 9e$ruary +,=-4 ordered the records of the case to $e forwarded to the CC. On the follow ng day4 howe!er4 and $efore the records were actually ele!ated to the CC4 1 f led a "ot on n the RTC for the eAecut on of ts #udg"ent. Resol!e the "ot on for eAecut on. &+3() A. (otion for e6ecution granted. %) judgment became final and e6ecutory and its review by the A could only be had by petition for review and not by appeal. -3* +!;, $ec. !!I marino v. A +!9 $ %A RRRR (+;&#). Q0 7hat s the proper recourse of a party aggr e!ed $y an order for eAecut on pend ng appeal% &'() A' %ule 0" certiorari because such an order is not appealable. (%ule 9+, $ec. +, par. ! (f)) Q0 7hat s the per od of rede"pt on fro" a real estate "ortgage foreclosure% &+3() A' It depends. If the foreclosure is judicial, there is only an equity of redemption and this is ;, to +!, days only from entry of judgment (%ule 0&, $ec. !) or at the latest until the order of confirmation of the sale (id., $ec. #). If foreclosure is e6tra/judicial, it further depends' one year from registration of the sale (Act ?o. #+#", as amended by Act ?o. 9++&) or, under $ec. 9: of the Ceneral 3anking Act of !,,, (effective sometime in 5une !,,,), if the mortgagor is a juridical person and the mortgagee is a bank, the redemption period is # months from the foreclosure sale or until the sale is registered whichever is earlier. Q0 Fsupersedeas $ondF A' %ule #;, $ec. #I %ule :,, $ec. +;. Q0 Cff da! t of "er t

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Prof. Antonio R. Bautista

A' %ule ;, $ec. # (c)I %ule #:, $ec. !, !nd par.I %ule #&, $ec. #. 7hen eAecut on proper Q. Cct on n the "un c pal tr al court for unlawful deta ner was dec ded upon a co"pro" se of the part es. The #udg"ent allowed the defendant2lessee to pay h s $ac6 rentals n nstall"ents4 w th the pro! s on that n case of fa lure of defendant to pay any s ngle nstall"ent an ""ed ate eAecut on shall ssue upon pla nt ff>s "ot on. 9or defendant>s fa lure to pay rentals wh ch accrued after the #udg"ent4 pla nt ff "o!ed for a wr t of eAecut on4 and th s "ot on was granted $y the court wh ch d rected defendant>s e#ect"ent for" the pre" ses. Is the wr t of eAecut on !al d% &+,,D . dter" @Aa" III) A. ?o. It does not conform with the judgment / which was for payment of back rentals only and not of future rentals. $uch non/conforming writ is a nullity. And so would the judgment have been a nullity if it was for the payment of future rentals, a suit for such rentals being dismissable outright for lack of cause of action. 7efault in the payment of rentals accruing after the judgment should be the subject of new cause of action to be ventilated in a new and separate complaint. Dtherwise, a judgment would be eternal, whereas it has a lifetime of +, years only from its finality. Camboa2s Inc. v. ourt of Appeals, :! $ %A +#+ (+;:0). Q. Judg"ent $y the .TC n an e#ect"ent act on $y 1 aga nst D order ng D to y eld the pro" ses to 1 was aff r"ed $y the RTC on appeal to t $y D. The records of the case were then pro"ptly re"anded to the .TRC wh ch4 ""ed ately upon rece pt of these records4 ssued on 1>s eA2parte "ot on a wr t of eAecut on of the #udg"ent. D then f led a Rule ?' pet t on for cert orar w th the CC see6 ng to null fy the wr t of eAecut on on the ground that the ssuance of the eAecut on wr t was pre"atuer<. Is D>s cert orar pet t on tena$le% &+,,? . dter" @Aa" B) A. 1es. Fhile the () decision is immediately e6ecutory under $ection !+ of the %evised %ule on $ummary *rocedure, this decision cannot be immediately e6ecuted before a copy thereof is served on 7. @6ecution of an appealed judgment can issue, as a matter of right only from the date of service of the notice provided in $ection ++ of %ule #;. (7y v. A, +;" $ %A "&" (8irst 7iv., +;;+) Q. On + .arch +,,<4 a dec s on of the .TC n an unlawful deta ner case was ser!ed on $oth pla nt ff and the defendant. On , .arch +,,< defendant f led a not ce of appeal. .eanwh le4 a "ot on to a"end dec s on was f led on +? .arch +,,< $y the pla nt ff. Ience4 on +, Cpr l +,,<4 the .TC rendered an a"ended dec s on. Then4 on +- .ay +,,< pla nt ff f led a "ot on for eAecut on of the a"ended dec s on. Should 1>s "ot on for eAecut on $e granted% &+,,< . dter" @Aa" BII) A. ?o answer Fhen e6ecution proper' stay of e6ecution Q. In an act on for unlawful deta ner n the .TC4 defendant lessee was ordered to !acate the leased pre" ses and pay "onthly rentals of 1'34333 start ng 3+ Cpr l +,,- unt l he shall ha!e !acated the pre" ses and surrendered ts possess on to pla nt ff lessor 4 and the su" of 1<34333 as attorney>s fees. Copy of the dec s on was ser!ed on defendant lessee on 3+ .arch +,,, and4 on the neAt day4 3; .arch +,,,4 defendant f led a not ce of appeal to the RTC4 so that on 3= .arch +,,,4 the .TC trans" tted the records of the case to the RTC. On +- .arch +,,,4 the pla nt ff lessor "o!ed for eAecut on of the dec s on n h s fa!or4 alleg ng that although defendant had f led a not ce of appeal he had not f led a supersedeas $ond. Defendant opposed the "ot on4 cla " ng that he was pre!ented fro"

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f l ng a supersedeas $ond on t "e $ecause the records of the e#ect"ent case were forwarded to the RTC w thout wa t ng for the eAp rat on of h s per od to appeal and for the further reason that the .TC d d not f A the a"ount of th s $ond. Rule on the "ot on for eAecut on. &+3() *+,,, . dter" EBI/ A. (otion for e6ecution granted. 72s failure to file a supersedeas bond is a ground for the immediate e6ecution of the judgment against him. 7 should have filed a supersedeas bond before he perfected his appeal, this appeal having been perfected as to him upon filing of his notice of appeal. (%ule 9+, $ec. ;) As to the amount of the bond, the () did not have to e6pressly or specifically fi6 the amount of the supersedeas bond because this is equivalent to the amount of rentals, damages and costs stated in the judgment and this is the rentals of *",,,,, a month from ,+ April +;;: until the date of the judgment. ( hua vs. A, !&0 $ %A 9#: -+st 7iv., +;;&.) )hird/party claims Q. 7ho "ay f le a Ftercer aF4 w th who" s t f led and what s the effect of ts f l ng% *+,,, U1 :arops II/ A. A KterceriaK is a third/party claim under $ection +:, %ule #; and is filed by a third/party claimant with the officer making the levy and it is an affidavit of the claimant2s title with copy thereof served upon the judgment creditor. Fith the filing of this affidavit, the officer is not bound to keep the property unless the judgment creditor indemnifies the officer against such claim by an adequate bond. Q. .ay a th rd2party cla "ant whose property had $een le! ed upon $y the sher ff nter!ene n the act on fro" wh ch the wr t pursuant to wh ch the le!y was "ade was ssued% &'() *+,,- . dter"s IE$/ A. If on attachment/yes. If on e6ecution/no, because intervention must be Kbefore or during a trial.K @6ecution of money judgments @6ecution of judgments for specific act Q. Cct on $y 1 aga nst D n the .TC for unlawful deta ner. The part es eAecuted a co"pro" se agree"ent4 wh ch the .TC appro!ed and e"$od ed n a #udg"ent4 where$y D pro" sed to pay 1 1+34333.33 on 3; January +33D and "onthly thereafter unt l <+ .ay +,,'. The co"pro" se agree"ent also st pulated that fa lure on the part of D to pay three &<) consecut !e nstall"ents w ll ent tle 1 to a wr t of eAecut on. Upon D>s fa lure to pay the f rst three st pulated nstall"ents4 1 o$ta ned on h s "ot on a wr t of eAecut on d rect ng D to !acate the pre" ses. Is the wr t of eAecut on assa la$le on any ground% &'() *+,,' 9 nals E$/ A. 1es. )he writ of e6ecution does not conform to the judgment. 72s obligation under the compromise judgment is purely monetary but the writ of e6ecution is not for a money judgment as provided in $ec. +", %ule #; and instead in for delivery or restitution of property under $ec. +#, %ule #; (Abinujar v A, C% ?o. +,9+##, +& April +;;"). Q. Is a "oney #udg"ent enforcea$le $y conte"pt% &'() *+,,- . dter"s BIII$/ A. ?o. It is not a special judgment under %ule #;, $ec. ;. 3ut see %ule #;, $ection. 9!.

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41

Prof. Antonio R. Bautista

Q. Desp te ser! ce of the wr t of eAecut on of a #udg"ent of e#ect"ent on defendant4 defendant refused to !acate and del !er possess on of the pre" ses. Ience4 upon "ot on of the pla nt ff and after hear ng of the part es on the conte"pt charge4 defendant was declared gu lty of nd rect conte"pt. Is the conte"pt order legally assa la$le% *+,,, U1 :arops IB/ A. 1es, the refusal of the defendant to vacate the leased premises does not constitute indirect contempt. (8lores vs. %ui4, ;, $ %A 9!& -+;:;.). ontempt is not proper in the enforcement of an ordinary judgment as in this case. )he sheriff must enforce the writ of e6ecution by ousting the defendant from the leased premises and placing the plaintiff in possession. (%ule #;, $ec. +,-c.) Q. In act on $y 1 aga nst D n the RTC4 the court rendered #udg"ent award ng certa n a"ounts to D as "oral and eAe"plary da"ages and atty>s fees. D Rece !ed a copy of the dec s on on < January +,=, wh le 1 rece !ed h s copy of the dec s on on +3 January +,=, and f led a not ce of appeal on +? January +,=, on wh ch sa"e day4 the court ssued and order g ! ng due course to 1>s not ce of appeal and d rect ng that the records $e forwarded to the Court of Cppeals. On +- January +,=,4 D f led a "ot on for eAecut on pend ng appeal and th s was granted o!er 1>s oppos t on on the reason ng that D had f led a $ond and the "ere f l ng of a $ond s good enough ground for eAecut on pend ng appeal. 1 then f led a pet t on for cert orar 4 proh $ t on and "anda"us w th the Court of Cppeals where n he challenged the RTC>s grant of eAecut on pend ng appeal as an a$use of d scret on. Resol!e 1>s pet t on. &;3() A. +. In the first place, certiorari lies against an order granting immediate e6ecution where the same is not founded upon good reasons. An appeal would not be an adequate remedy from such premature e6ecution. ?or is the filing of a supersedeas bond a plain, speedy and adequate remedy because the filing of a such bond does not entitle * to the suspension of e6ecution as a matter of right. !. )he e6ecution pending appeal was timely granted by the %) because it was granted before perfection of an appeal. $ince an appeal is perfected upon the e6piration of the last to appeal by any party (Interim %ule !#), this last day is on !" 5anuary +;&;, until which day * had time to appeal. )he filing of the motion for e6ecution on +: 5anuary +;&; was, therefore, well within the time before the appeal was perfected. )he giving of Kdue courseK to the appeal was inconsequential as the notice of appeal does not require any approval. #. )here was no good reason for the issuance of immediate e6ecution. )he mere posting of a bond cannot by itself be a Kgood reasonKI otherwise, immediate e6ecution of a judgment would become routinary, the rule rather than the e6ception. (oreover, awards for moral and e6emplary damages cannot be the subject of e6ecution pending appeal because these awards are dependent on the outcome of the main case and remain uncertain and indefinite until final adjudication. - RRRRRRRRRRR v. AI +&9 $ %A ",+ (+;;,). Q. 1ursuant to a wr t of eAecut on duly ssued $y the RTC aga nst D to enforce a +,=? "oney #udg"ent aga nst h " and n fa!or of 14 the sher ff le! ed on all the r ghts and nterests of D n a parcel of land reg stered n the reg ster of deeds and annotated on the correspond ng t tle as well as ser!ed on D who had $een occupy ng the land cont nuously s nce +,=3. E was then ssued a new Torrens t tle n h s na"e $ut w th the not ce of le!y n 1>s fa!or carr ed on the $ac6 of th s new cert f cate. So4 E $rought another act on aga nst 14 the sher ff and the reg ster of deeds for the cancellat on of the annotat on of 1>s not ce of le!y on the ground that th s le!y was rregular and "proper. Defend ng aga nst E>s act on4 the defendants alleged the super or ty of the l en created $y the pr or reg strat on of the le!y o!er the su$seHuent sale n E>s fa!or. Dec de the case. &+3()

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Prof. Antonio R. Bautista

Q. In an act on for unlawful deta ner n the .TC4 defendant lessee was ordered to !acate the leased pre" ses and pay "onthly rentals of 1'34333.33 start ng 3+ Cpr l +,,unt l he shall ha!e !acated the pre" ses and surrendered ts possess on to pla nt ff lessor4 and the su" of 1<34333.33 as attorney>s fees. Copy of the dec s on was ser!ed on defendant lessee on 3+ .arch +,,, and4 on the neAt day4 3; .arch +,,,4 defendant f led a not ce of appeal to the RTC4 so that on 3= .arch +,,,4 the .TC trans" tted the records of the case to the RTC. On +- .arch +,,,4 pla nt ff lessor "o!ed for eAecut on of the dec s on n h s fa!or4 alleg ng that although defendant had f led a not ce of appeal he had not f led a supersedeas $ond. Defendant opposed the "ot on4 cla " ng that he was pre!ented fro" f l ng a supersedeas $ond on t "e $ecause the records of the e#ect"ent case were forwarded to the RTC w thout wa t ng for the eAp rat on of h s per od to appeal and for the further reason that the .TC d d not f A the a"ount of th s $ond. Rule on the "ot on for eAecut on. A. (otion for e6ecution granted. 72s failure to file a supersedeas bond is a grund for the immediate e6ecution of the judgment against him. 7 should have filed a supersedeas bond before he perfected his appeal, this appeal having been perfected as to him upon his filing of his notice of appeal. (%ule 9+, $ec ;) As to the amount of the bond, the () did not have to e6pressly or specifically fi6 the amount of the supersedeas bond because this is equivalent to the amount of rentals, damages and costs stated in the judgment and this is the rentals of *",,,,,.,, a month from ,+ April +;;: until the date of the judgment. ( hua v A, !&0 $ %A 9#: -+st 7iv., +;;&.).

EBII. S1@CIC8 CIBI8 CCTIONS


Muo warranto Q0 Relator A' %ule 00 $ec. # 8oreclosure of real estate mortgage Q. .ortgagee eAtra#ud c ally foreclosed a real estate "ortgage $ dded for and purchased the property at the auct on sale and o$ta ned a new TCT n h s na"e after the lapse of one year fro" the reg strat on of the cert f cate of sale wh ch was ssued to h " at the foreclosure sale. .ortgagor now $r ngs an act on to annul the eAtra#ud c al sale and to cancel the "ortgagee>s new TCT on the follow ng grounds0 a.) )hat the notice of sale was not posted at the place where the mortgaged property was locatedI b.) )hat no personal notice of the e6trajudicial foreclosure was furnished the mortgagorI and c.) )hat the purchase price was grossly inadequate. Q. Is the pla nt ff>s co"pla nt well2grounded% &+3() *+,,, . dter" EIE/

A. ?o. Hnder Act ?o. #+#", as amended which is the law governing e6trajudicial foreclosure of real estate mortgages, there is no requirement of personal notice to the mortgagor, and as far as notice is concerned, it is enough that it be posted in at least # public places of the municipality or city where the property is situated and it is not required that the notice be posted at the site of the property itself. )he supposed inadequacy of the purchase price is immaterial since there is a

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right to redeem and therefore a lower bid price would make it easier for the property owner to effect the redemption or sell his right to redeem and thus recover his loss. ($ee Abrina vs. *?3, ;" D.C. p. 9,0& - AI +;;"., citing 73* vs. Lda. 7e (oll, 9# $ %A &! -+;:!.) 8orcible entry and detainer Q0 .ay an nfer or court grant a wr t of prel " nary "andatory n#unct on n an unlawful deta ner case% A' 1es. $ee %:, $+". Q0 In an e#ect"ent case4 the .TC ordered the defendant to !acate the leased pre" ses and to pay a "onthly rental plus atty>s fees. On appeal4 defendant depos ted the current rentals w th the RTC. :ut the RTC granted pla nt ff>s "ot on for eAecut on on the ground of defendant>s fa lure to f le a supersedeas $ond. Is the order of eAecut on correct% A' ?o. %:, $+; requires a supersedeas bond only if there are rentals in arrears. )he atty2s fees need not be covered by a supersedeas bond. -7e Baureano v. AdilI :! $ %A +9& (+;:0). Q0 C and : nher ted fro" the r father4 C4 a parcel of land n +,='. In +,,;4 D forc $ly entered nto and too6 possess on of the property. .ay C $y h "self and w thout nclud ng : as h s co2pla nt ff $r ng an act on for e#ect"ent aga nst D% A' 1es. Anyone of the co/owners may bring an action in ejectment. (Art. 9&:, )

Q0 Can a .TC award "oral and eAe"plary da"ages n an unlawful deta ner case% A' ?o. )he only damages that can be recovered in an unlawful detainer suit are the fair rental value or the reasonable compensation for the use and occupation of the real property. Dther damages must be claimed in an ordinary action. -8elisilda v. LillanuevaI +#; $ %A 9#+ (+;&"). Q0 Unlawful deta ner act on $y 1 aga nst D was dec ded n fa!or of 1 $y the .TC. On 1>s "ot on4 .TC granted eAecut on pend ng appeal for D>s fa lure to post a supersedeas $ond. D challenged the !al d ty of the ""ed ate eAecut on for ha! ng $een ssued w thout any pre! ous not ce to h ". Rule on the !al d ty of the order of eAecut on. A' Drder of immediate e6ecution is proper. () is not duty/bound to notify 7 of immediate enforcement of the appealed decision. It is the prevailing party moving for e6ecution pending appeal who is obliged to serve a copy of such motion on the adverse party2s counsel. -7elos $antos v. (ontesaI !!+ $ %A +" (+;;#). Q0 1 f led a co"pla nt for unlawful deta ner aga nst D n the .TC. In h s co"pla nt4 1 prayed for #udg"ent order ng D to !acate the leased pre" ses and to surrender the" to 14 declar ng the res dent al $u ld ng constructed on the lot $y D as forfe ted n fa!or of 1 and ad#udg ng D l a$le to pay accrued rentals and 1'4333 atty>s fees to 1. Cfter D f led h s answer4 the .TC rendered a #udg"ent on the plead ngs grant ng all the rel efs prayed for n 1>s co"pla nt. Is th s #udg"ent assa la$le on any #ur sd ct onal ground% A' (?o clear answer. ?ote on pencil says' ownership) Q. 7hen and under what cond t ons "ay a court ssue a de"ol t on order% &'()

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Prof. Antonio R. Bautista

Q. T was leas ng h s apart"ent fro" 8 at 1'4333/"onth under a wr tten contract for + year. One "onth $efore the eAp rat on of the lease4 8 ser!ed a de"and upon T to !acate the pre" ses upon ts eAp ry $ecause he was go ng to de"ol sh the $u ld ng and erect n ts place a new $u ld ng. T refused to !acate. In conseHuence4 8>s $u ld ng plans were delayed. So4 8 $rought an act on for unlawful deta ner aga nst T and o$ta ned #udg"ent there n d rect ng T to pay h " the 1'4333 st pulated rental and 1'33 a day for e!ery day of delay as da"ages unt l he f nally !acates the pre" ses plus 1+34333 atty>s fees. Is the dec s on o$#ect ona$le n any way% &+3() A. 1es. )he award of *",, a day for damages cannot properly be made in an unlawful detainer action where the only damages recoverable are those which are caused by the loss of the use and occupation of the property and not such damages as may be recovered only by the plaintiff if he were the owner and he cannot be declared as such in an unlawful detainer action. )he award of atty2s fees is proper. -$ee %eyes v. AI #& $ %A +#& (+;:+). Q. .ay a person not n possess on of the pre" ses $r ng an act on for unlawful deta ner of these pre" ses% &'() A. 1es, as where the action is brought by a vendee or other person against whom the possession is unlawfully withheld after the e6piration of termination of the right to hold possession. -$ee *angilinan v. AguilarI 9# $ %A +#0 (+;:!). Q. Can the .TC ssue a wr t of prel " nary "andatory n#unct on n an act on of unlawful deta ner% &'() A. ?o. Art. #";, ? authori4es an () in forcible entry cases only. to issue a writ of preliminary mandatory injunction

Q. C s the owner of a parcel of land pend ng reg strat on n the RTC of R 5al. Ie per" tted :4 a fa" ly fr end4 to construct a s"all house on the land and to l !e there n for a per od of two years only. The two2year per od eAp red on + "ay +,,D4 $ut : fa led and refused to !acate the land. Ience4 on +' June +,,D4 C f led an act on aga nst n the RTC of R 5al for the reco!ery of possess on of the land. : f led a "ot on to d s" ss the case on the ground that the proper act on was for unlawful deta ner and not for reco!ery of possess on nas"uch as the alleged deta ner of the property was for a per od of less than one year at the t "e the act on was co""enced. Is the "ot on well founded% &+,,D . dter" @Aa" I$) A. A plenary action to recover possession (accion publiciana) may be filed even before the e6piration of the one/year period from dispossession. (oreover, if 3 has a claim of ownership over the land in question, the action was properly filed in the %) since the question of possession cannot be decided without first deciding the question of ownership. Q. C and : nher ted fro" the r father4 C4 a parcel of land n +,='. In +,,<4 D forc $ly entered nto and too6 possess on of the property. .ay C $y h "self and w thout nclud ng : as h s co2pla nt ff4 $r ng an act on for e#ect"ent aga nst D% &+,,D . dter" @Aa" II$L +,,< . dter" @Aa" BIII$) A. 1es, anyone of the co/owners may bring an action in ejectment. (Article 9&:, ivil ode)

Q. In an act on for e#ect"ent $y 1 aga nst D n the .TC4 #udg"ent order ng D to !acate the pre" ses and to pay all accrued and accru ng rentals was ser!ed on $oth part es on 3+ July +,,'. On +3 July +,,'4 D f led a "ot on for recons derat on of the #udg"ent on the ground that the .TC had no #ur sd ct on o!er the case s nce the ssue of ownersh p was neAtr ca$ly n!ol!ed n the case and the ssue of possess on could not $e resol!ed

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Prof. Antonio R. Bautista

w thout resol! ng th s ssue of ownersh p. The .TC den ed D>s "ot on for recons derat on and the den al order was ser!ed on D on 3+ Septe"$er +,,'. The neAt day4 3; Septe"$er +,,'4 D f led h s not ce of appeal to the RTC fro" the .TC e#ect"ent dec s on. (a) Eow should the %) A. )he %) resolve the appealU (+;;0 (idterm @6am IG)

should dismiss the appeal. GGGGG (illegible)

(b) $uppose the () had motu proprio and without any hearing, dismissed *2s ejectment complaint for lack of jurisdiction, and that it was * instead who had timely appealed this dismissal order to the %) , how should the %) resolve *2s appealU (+;;0 (idterm @6am Ga) A. It may upon appellate review of the dismissal order affirm or reverse it but in case of reversal the case shall be remanded for further proceedings (%ule 9,, $ec. +,). Q. Cct on n the .TC for unlawful deta ner. 1la nt ff rests h s r ght to possess on of the property n d spute upon h s cla " of ownersh p4 wh ch cla " n turn s $ased on a purported contract of sale w th r ght to repurchase ad" ttedly eAecuted $y defendant $ut cla "ed $y h " to $e a "ere s "ulat on to cloa6 a "ortgage o$l gat on ta nted w th usury. If th s contract was really a sale su$#ect to repurchase and the repurchase as4 as alleged $y pla nt ff4 not $een "ade w th n the t "e st pulated4 pla nt ff would already $e the owner of the property sold and4 as such4 ent tled to ts possess on. On the other hand4 f the contract was4 as defendants cla "4 n real ty a "ere "ortgage4 then the defendants would st ll $e a the owner of the property and could not4 therefore4 $e regarded as "ere lessees. Cfter tr al4 the .TC d s" ssed the case for lac6 of #ur sd ct on on the ground that the case n!ol!es a Huest on of ownersh p. Is the d s" ssal correct% &+,,< . dter" @Aa" IE) Q. On 3+ Cpr l +,,,4 1 f led n the .TC an act on for forc $le entry aga nst D alleg ng that on +' .arch +,,,4 he purchased th s parcel $ut that on ;3 .arch +,,, $ut that on ;3 .arch +,,, he found out that D too6 possess on of th s parcel under the preteAt that he s the owner thereof and that D refused to surrender possess on of the land desp te de"ands. D f led h s answer deny ng the "ater al allegat ons of the co"pla nt and4 $y way of spec al and aff r"at !e defenses4 a!erred that the .TC has no #ur sd ct on o!er the su$#ect "atter of the act on $ecause t s not for forc $le entry $ut an acc on pu$l c ana and that the deed of sale under wh ch 1 cla "s ownersh p s a forgery. Does .TC ha!e #ur sd ct on o!er the case% &+3() *+,,, . dter" EE/ A. ?o. 8or a complaint for forcible entry to fall within the jurisdiction of the () , it must allege plaintiff2s prior physical possession of the property as well as that he was deprived of such possession. 3ut here, * merely alleged that on !, (arch +;;;, he found out that 7 took possession of the parcel of land and refused to surrender its possession to himI he did not allege that * was in prior physical possession. (oreover, *2s pretended right to the possession of the disputed property ultimately rests upon his claim of ownership, a claim based upon a purported contract of sale the genuineness of which is disputed by 7, so that the case, in the final analysis, hinges on a question of ownership and is therefore not cogni4able by the () . ($ee %imando vs. 3orebor, ;" o.g., p. ;++ - A, +;;9.) Q. The .TC rendered #udg"ent n an unlawful deta ner case n pla nt ff>s fa!or order ng the defendant to !acate the pre" ses and to pay rentals n arrears. Defendant duly appealed fro" th s #udg"ent to the RTC $ut upon h s fa lure to depos t the reHu s te supersedeas $ond w th the .TC4 the .TC ssued a wr t of eAecut on order ng the eAecut on of the appealed #udg"ent w th respect to the restorat on of possess on. 7as the wr t of eAecut on !al dly ssued% *+,,, U1 :arops IE /

<=ung nag/si/strip recitation tayo, hubad na kayong lahat.>

/ *rof. 3autista

REMEDIAL LAW REVIEW Past exams Civil Procedure

46

Prof. Antonio R. Bautista

A. ?o. )he () has no jurisdiction to issue the e6ecution writ. )he appeal has already been perfected. I t is the %) which should issue the writ of e6ecution. (%ule :,, $ec. +;) ontempt Q. :y ! rtue of an eAecut on of the #udg"ent n an e#ect"ent case4 defendant was successfully ousted fro" the property n l t gat on and pla nt ff was lawfully placed n possess on thereof. :ut - years later4 defendant re2entered the property and forc $ly too6 o!er possess on. 1la nt ff now "o!es that defendant $e declared n nd rect conte"pt. Rule on the "ot on. *+,,, U1 :arops B/ A. (otion granted. )he defendant violated $ection #(b) of %ule :+ when, after being ousted from the property in litigation and the plaintiff being lawfully placed in possession, he re/enters the property and forcibly took over possession.

<=ung nag/si/strip recitation tayo, hubad na kayong lahat.>

/ *rof. 3autista