[2021 BLUE NOTES] REMEDIAL LAW

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By downloading, acquiring possession, and/or using this material, whether, by electronic or other means, the recipients agree to protect the confidentiality of the material, refraining from any action which may lead to possession, duplication, or use by third parties . Ad maiorem Dei gloriam. GRACE ANN Q. BAJO TIMOTHY JACOB J. PALAFOX 20 21 C H AI R PE R S O N S KATHLEEN KAE Z. ENDOZO ARISTEO RAPHAEL T. MARBELLA III MEG V. BUENSALIDO MARIE KAYLA C. GALIT 20 21 AD MI NI ST R A TI V E CO M MI T TE E HE A D S 20 21 A C AD E MI C C O M MI T TE E HE AD S CARLOS ROSAURO N. MANALO MA. CRISTINA ASUNCION 20 21 A C AD E MI C C O M MI T TE E U N D E R ST U D I E S JUSTICE MAGDANGAL M. DE LEON ATTY. AXEL RUPERT M. CRUZ ATTY. ERDELYNE C. GO ATTY. CARLOS LOPEZ 20 21 R E ME D I AL LA W F A CU L TY A D V I S E R S JASON DON S. DIZON JAMES PATRICK L. URQUIOLA JAIMS GABRIEL L. ORENCIA LESLIELYN L. NGO 20 21 R E ME D I AL LA W SU BJE CT HE AD S LOUIE EMMANUEL G. PAGTAKHAN STEFFI GAYLE C. BULLECER STEFFI MARTINA S. VALLE JENWIN ELLA M. BACCAY 20 21 R E ME D I AL LA W U ND E R S TU D I E S NADINE ONG MARIA JOSEFINA CONCIO NORBERTO SARIGUMBA III ANGELICA OIDEM JAMES ANDREW ESPIRITU ROSEANNE REALUBIN PATRICIA JOY IGNACIO RACHEL LEIGH COLLADO STEPHANIE SERAPIO RAYMIELLE MAGCALAS JEFFREY ABRAZALDO JONATHAN TORRES MARC ANGELO GUIBONE LORIEDEL FAJARDO ISABELLA SABIO SHAULA FLORESTA SAMANTHA ROSE MORALES VERA DE VERA CAMILLE BULATAO ANA SAMANTHA ISABELA PARUNGAO MIKKO RINGIA 20 21 R E ME D I AL LA W V OLU NTE E R S JONATHAN DF. TORRES GAEL PAULINE R. MORALES RIA ALEXANDRA D. CASTILLO NICOLE ANN C. PAGLICAWAN JULIANNE BEATRICE N. ROSARIO 20 21 C R E ATI V E S JOSEPH BILL P. QUINTOS SAMANTHA J. MAGAOAY FREEDOM JUSTIN B. HERNANDEZ STEFI MONIKA S. SUERO KATHLEEN C. ROMINA SERMAE ANGELA G. PASCUAL 20 21 TE C H NI CA L 2 02 1 FI N AN CE AINA RAE L. CORTEZ LUMINA ALINEA O. AQUINO ANNA MARIE GRACE M. ANTONIO MARY STEPHANIE CABRERA CRUZ CLARISSE MAE D. ZAPLAN CHRISTIAN GIO R. SENARLO MAEDEN M. BORCELANGO IMI LIZA B. ESPINA FRANCIS SABIN BELTRAN ANTHONY JEFFERSON Y. JULIO 20 21 S PE CI AL P R OJ E C TS 20 21 LO GI STI C S DONN MARIE ISABELLE BALINA ALISHA BEATRICE A. VERGARA PRISHA LEIGH D. CRUZ ALITHEA C. SORIANO AARON C. CHENG MELISSA GABRIELLE P. REMULLA GRACIELLA RACHEL D. ROBLES DANELLA DIANE D. DIMAPILIS REYNALDO M. REVECHE CZAREANA JOUSCH T. PARRA 20 21 M AR K E TI N G 20 21 PU BLI C R E L A TI ON S JUSTIN LUIGI V. HERNANDEZ 20 2 0 C HAI R P E R SO N YVES PETER CARLO D. MEDINA KATRINA ISABELLE G. PIMENTEL GENICA GALE F. LAHOZ THERESE ANNE C. ESPINOSA HAZEL VIANCA I. ORTEGA VINCE ZYRENCE T. BARLONGAY 20 2 0 AD MI NI S TR ATI V E CO M MI T TE E HE A D S 20 2 0 HO TE L C O M MI TTE E HE A D S EUNICE A. MALAYO FRANCES CHRISTINE P. SAYSON MEG V. BUENSALIDO MARIE KAYLA C. GALIT 20 2 0 A CAD E MI C CO M MI T TE E HE AD S 2 02 0 A CA D E M I C CO M MIT T E E U N D E R S T U DI E S JUSTICE MAGDANGAL M. DE LEON ATTY. AXEL RUPERT M. CRUZ ATTY. ERDELYNE C. GO ATTY. CARLOS LOPEZ 20 2 0 R E ME D I AL L A W F A CU L TY A D V I S E R S BRYAN GEORGE M. MANZANO ALGA MAE V. SAN DIEGO ROWELL NICO S. MACALINO REI LUIS ANTON A. DOMINGO 20 2 0 R E ME D I AL L A W SU BJE CT HE AD S JASON DON S. DIZON JAMES PATRICK L. URQUIOLA JAIMS GABRIEL L. ORENCIA 20 2 0 R E ME D I AL L A W U ND E R S TU D I E S ISABELLA SABIO ANNA BEATRICE, L. SALAZAR SOFIA GATCHALIAN APRILLE VINCIE P. TAGUDAR DOROTHY DULNOAN IRISH SELENE S. AQUINO ROSEANNE REALUBIN AILEEN LOVE H. REYES MARIA ANGELICA TORIO LORIEDEL FAJARDO KRISTINE MAE D. MEDEL SHIKYNA CASTILLO JEBEL DHANNA C. CLAUDIO SIEGFRED G. PEREZ SAMANTHA ROSE K. MORALES LESLIELYN L. NGO JEFFREY ROGER T. ABRAZALDO 20 2 0 R E ME D I AL L A W V OLU NTE E R S ANDREA RIOFLORIDO CLEON MAGAYANES VICTORIA CHANG RIZZA MATIONG REM GUEVARRA ZEKE GARCIA VEYA JOSEF JUNE LIM ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 TABLE OF CONTENTS I. GENERAL PRINCIPLES .......................................................................................................................................... 2 A. SUBSTANTIVE LAW AS DISTINGUISHED FROM REMEDIAL LAW...................................................................... 2 B. RULE-MAKING POWER OF THE SUPREME COURT.......................................................................................... 3 1. LIMITATIONS ON THE RULE-MAKING POWER OF THE SUPREME COURT....................................................... 3 2. POWER OF THE SUPREME COURT TO AMEND AND SUSPEND PROCEDURAL RULES ...................................... 3 C. NATURE OF PHILIPPINE COURTS .................................................................................................................... 4 1. MEANING OF A COURT................................................................................................................................ 4 2. DISTINGUISH: COURT AND JUDGE ............................................................................................................... 4 3. CLASSIFICATION OF PHILIPPINE COURTS...................................................................................................... 5 4. COURTS OF ORIGINAL AND APPELLATE JURISDICTION ................................................................................. 5 5. COURTS OF GENERAL AND SPECIAL JURISDICTION ....................................................................................... 6 6. CONSTITUTIONAL AND STATUTORY COURTS ............................................................................................... 6 7. COURTS OF LAW AND EQUITY ..................................................................................................................... 6 8. PRINCIPLE OF JUDICIAL HIERARCHY ............................................................................................................. 7 9. DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY .................................................... 7 II. JURISDICTION .................................................................................................................................................. 10 A. CLASSIFICATION OF JURISDICTION ............................................................................................................... 11 1. DISTINGUISH: ORIGINAL AND APPELLATE .................................................................................................. 11 2. DISTINGUISH: GENERAL AND SPECIAL........................................................................................................ 11 3. DISTINGUISH: EXCLUSIVE AND CONCURRENT ............................................................................................ 11 B. DOCTRINES OF HIERARCHY OF COURTS AND CONTINUITY OF JURISDICTION............................................... 11 (ADHERENCE OF JURISDICTION) ....................................................................................................................... 11 C. JURISDICTION OF VARIOUS PHILIPPINE COURTS .......................................................................................... 12 D. ASPECTS OF JURISDICTION........................................................................................................................... 26 1. JURISDICTION OVER THE PARTIES .............................................................................................................. 26 2. JURISDICTION OVER THE SUBJECT MATTER ............................................................................................... 26 3. JURISDICTION OVER THE ISSUES ................................................................................................................ 31 4. JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION........................................................................ 31 5. JURISDICTION OVER THE REMEDIES .......................................................................................................... 31 E. DISTINGUISH: ERROR OF JURISDICTION VS. ERROR OF JUDGMENT .............................................................. 32 F. JURISDICTION VS. VENUE ............................................................................................................................. 32 G. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY CONCILIATION............................................................................................................................... 32 H. HOW JURISDICTION IS DETERMINED ........................................................................................................... 35 III. CIVIL PROCEDURE ........................................................................................................................................... 37 A. GENERAL PROVISIONS ................................................................................................................................. 41 B. ACTIONS ...................................................................................................................................................... 41 1. MEANING OF ORDINARY CIVIL ACTIONS .................................................................................................... 41 2. MEANING OF SPECIAL CIVIL ACTIONS ........................................................................................................ 41 i ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 3. MEANING OF CRIMINAL ACTIONS.............................................................................................................. 41 4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS .......................................................................................... 42 5. PERSONAL ACTIONS AND REAL ACTIONS ................................................................................................... 42 6. LOCAL AND TRANSITORY ACTIONS ............................................................................................................ 42 7. ACTIONS IN REM, IN PERSONAM, AND QUASI IN REM ............................................................................... 42 C. CAUSE OF ACTION ........................................................................................................................................ 44 1. MEANING OF CAUSE OF ACTION ............................................................................................................... 44 2. DISTINGUISH: RIGHT OF ACTION AND CAUSE OF ACTION........................................................................... 44 3. DISTINGUISH: FAILURE TO STATE A CAUSE OF ACTION AND LACK OF CAUSE OF ACTION ............................ 45 4. TEST OF SUFFICIENCY OF A CAUSE OF ACTION ........................................................................................... 45 5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS........................................................................... 46 6. JOINDER AND MISJOINDER OF CAUSES OF ACTION .................................................................................... 47 D. PARTIES TO CIVIL ACTION ............................................................................................................................ 47 1. REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES; REPRESENTATIVES AS PARTIES; NECESSARY PARTIES; INDIGENT PARTIES; ALTERNATIVE DEFENDANTS............................................................................................ 48 2. COMPULSORY AND PERMISSIVE JOINDER OF PARTIES ............................................................................... 53 3. MISJOINDER AND NON-JOINDER OF PARTIES............................................................................................. 54 4. CLASS SUIT ................................................................................................................................................ 54 5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY ..................................................................... 55 6. EFFECT OF DEATH OF PARTY LITIGANT ...................................................................................................... 55 E. VENUE .......................................................................................................................................................... 57 1. VENUE OF REAL ACTIONS .......................................................................................................................... 57 2. VENUE OF PERSONAL ACTIONS ................................................................................................................. 58 3. VENUE OF ACTIONS AGAINST NON-RESIDENTS .......................................................................................... 58 4. WHEN THE RULES ON VENUE DO NOT APPLY ............................................................................................ 58 5. EFFECTS OF STIPULATIONS ON VENUE....................................................................................................... 59 F. PLEADINGS ................................................................................................................................................... 60 1. KINDS OF PLEADINGS AND WHEN SHOULD THEY BE FILED ......................................................................... 60 2. PLEADINGS ALLOWED IN SMALL CLAIMS CASES AND CASES COVERED BY THE RULE ON SUMMARY PROCEDURE.................................................................................................................................................. 68 3. PARTS AND CONTENTS OF A PLEADING ..................................................................................................... 70 4. ALLEGATIONS IN A PLEADING .................................................................................................................... 75 5. EFFECT OF FAILURE TO PLEAD ................................................................................................................... 82 6. DEFAULT ................................................................................................................................................... 83 7. FILING AND SERVICE OF PLEADINGS .......................................................................................................... 87 8. AMENDMENT............................................................................................................................................ 98 G. SUMMONS ................................................................................................................................................ 102 1. NATURE AND PURPOSE OF SUMMONS.................................................................................................... 102 2. VOLUNTARY APPEARANCE ...................................................................................................................... 104 3. WHO MAY SERVE SUMMONS .................................................................................................................. 104 4. PERSONAL SERVICE (SERVICE IN PERSON ON DEFENDANT) ...................................................................... 105 5. SUBSTITUTED SERVICE ............................................................................................................................ 106 6. CONSTRUCTIVE SERVICE.......................................................................................................................... 107 7. EXTRATERRITORIAL SERVICE, WHEN ALLOWED........................................................................................ 108 8. SERVICE UPON PRISONERS AND MINORS; UPON SPOUSES ...................................................................... 109 9. SERVICE UPON DOMESTIC OR FOREIGN PRIVATE JURIDICAL ENTITY ........................................................ 109 10. PROOF OF SERVICE ................................................................................................................................ 111 H. MOTIONS................................................................................................................................................... 112 ii ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 1. MOTIONS IN GENERAL ............................................................................................................................ 112 2. MOTIONS FOR BILL OF PARTICULARS....................................................................................................... 115 I. DISMISSAL OF ACTIONS............................................................................................................................... 116 1. DISMISSAL WITH PREJUDICE.................................................................................................................... 116 2. DISMISSAL UPON NOTICE BY PLAINTIFF ................................................................................................... 117 3. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM ..................................... 118 4. DISMISSAL DUE TO FAULT OF PLAINTIFF .................................................................................................. 119 5. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT .......................................... 119 J. PRE-TRIAL ................................................................................................................................................... 119 1. CONCEPT OF PRE-TRIAL ........................................................................................................................... 119 2. NATURE AND PURPOSE ........................................................................................................................... 120 3. NOTICE OF PRE-TRIAL .............................................................................................................................. 121 4. APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR ...................................................................... 121 5. PRE-TRIAL BRIEF; EFFECT OF FAILURE TO FILE .......................................................................................... 122 6. PRE-TRIAL ORDER.................................................................................................................................... 122 7. DISTINCTION BETWEEN PRE-TRIAL IN A CIVIL CASE AND PRE-TRIAL IN A CRIMINAL CASE ......................... 123 K. INTERVENTION........................................................................................................................................... 127 1. REQUISITES FOR INTERVENTION.............................................................................................................. 129 2. TIME TO INTERVENE................................................................................................................................ 129 3. REMEDY OF DENIAL OF MOTION TO INTERVENE...................................................................................... 129 L. SUBPOENA ................................................................................................................................................. 129 1. SUBPOENA DUCES TECUM ...................................................................................................................... 129 2. SUBPOENA AD TESTIFICANDUM .............................................................................................................. 129 3. SERVICE OF SUBPOENA ........................................................................................................................... 130 4. COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT.......................................................................... 130 5. QUASHING A SUBPOENA ......................................................................................................................... 131 M. COMPUTATION OF TIME ........................................................................................................................... 132 N. MODES OF DISCOVERY .............................................................................................................................. 132 1. DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE ACTION OR PENDING APPEAL ............................ 133 2. WRITTEN INTERROGATORIES TO ADVERSE PARTIES ................................................................................. 139 3. REQUEST FOR ADMISSION....................................................................................................................... 141 4. PRODUCTION AND INSPECTION OF DOCUMENTS OR THINGS .................................................................. 143 5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS ............................................................................... 144 6. CONSEQUENCES OF REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY........................................... 145 O. TRIAL ......................................................................................................................................................... 147 1. ADJOURNMENTS AND POSTPONEMENTS ................................................................................................ 147 2. REQUISITES OF MOTION TO POSTPONE TRIAL ......................................................................................... 147 3. AGREED STATEMENT OF FACTS ............................................................................................................... 147 4. ORDER OF TRIAL; REVERSAL OF ORDER ................................................................................................... 148 5. CONSOLIDATION OR SEVERANCE............................................................................................................. 149 6. DELEGATION OF RECEPTION OF EVIDENCE .............................................................................................. 150 7. TRIAL BY COMMISSIONERS...................................................................................................................... 151 P. DEMURRER TO EVIDENCE .......................................................................................................................... 152 1. GROUNDS ............................................................................................................................................... 153 2. EFFECT OF DENIAL................................................................................................................................... 153 3. EFFECT OF GRANT ................................................................................................................................... 153 4. WAIVER OF RIGHT TO PRESENT EVIDENCE ............................................................................................... 154 iii ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 5. DISTINGUISH: DEMURRER TO EVIDENCE IN A CIVIL CASE AND DEMURRER TO EVIDENCE IN A CRIMINAL CASE ........................................................................................................................................................... 154 Q. JUDGMENTS AND FINAL ORDERS .............................................................................................................. 155 1. JUDGMENT AFTER PRE-TRIAL .................................................................................................................. 155 2. JUDGMENT WITHOUT TRIAL.................................................................................................................... 156 3. JUDGMENT ON THE PLEADINGS .............................................................................................................. 156 4. SUMMARY JUDGMENT............................................................................................................................ 158 5. DISTINGUISH: JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENTS........................................... 160 6. CONTENTS OF A JUDGMENT.................................................................................................................... 160 7. RENDITION OF JUDGMENTS AND FINAL ORDERS ..................................................................................... 161 8. ENTRY OF JUDGMENT AND FINAL ORDER ................................................................................................ 162 R. POST-JUDGMENT REMEDIES ...................................................................................................................... 167 1. MOTION FOR NEW TRIAL OR RECONSIDERATION .................................................................................... 167 2. APPEALS................................................................................................................................................. 171 3. RELIEF FROM JUDGMENTS, ORDERS, AND OTHER PROCEEDINGS (Rule 38) .............................................. 201 4. ANNULMENT OF JUDMENTS AND FINAL ORDERS AND RESOLUTIONS (Rule 47)........................................ 203 5. COLLATERAL ATTACK OF JUDGMENTS ..................................................................................................... 206 S. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS .......................................................................... 206 1. DIFFERENCE BETWEEN FINAL JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION..... 206 2. WHEN EXECUTION SHALL ISSUE .............................................................................................................. 207 3. HOW JUDGMENT IS EXECUTED................................................................................................................ 211 4. PROPERTIES EXEMPT FROM EXECUTION.................................................................................................. 214 5. PROCEEDINGS WHERE PROPERTY IS CLAIMED BY THIRD PERSONS; IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND REPLEVIN ..................................................................................................................... 215 6. RULES ON REDEMPTION.......................................................................................................................... 218 7. EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS SATISFIED................................................. 220 8. EXAMINATION OF DEBTORS OF THE JUDGMENT OBLIGOR....................................................................... 220 9. EFFECT OF JUDGMENT AND FINAL ORDERS ............................................................................................. 221 10. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS............................................. 222 IV. PROVISIONAL REMEDIES .............................................................................................................................. 224 A. NATURE AND PURPOSE ............................................................................................................................. 225 B. JURISDICTION OVER PROVISIONAL REMEDIES ........................................................................................... 225 C. PRELIMINARY ATTACHMENT...................................................................................................................... 225 1. GROUNDS FOR ISSUANCE OF PRELIMINARY ATTACHMENT ...................................................................... 227 2. REQUISITES ............................................................................................................................................. 228 3. ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT; AFFIDAVIT AND BOND ...................................... 229 4. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS .......................................................... 230 5. MANNER OF ATTACHING REAL AND PERSONAL PROPERTY; WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON............................................................................................................................................ 230 6. DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND ........................................................................ 233 7. SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED .................................................................. 236 8. COMPARED WITH GARNISHMENT AND LEVY ON EXECUTION .................................................................. 237 D. PRELIMINARY INJUNCTION ........................................................................................................................ 241 1. DEFINITIONS AND DIFFERENCES: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER (TRO), AND STATUS QUO ANTE ORDER .................................................................................................................. 241 2. REQUISITES ............................................................................................................................................. 243 iv ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 3. KINDS OF INJUNCTIONS; KINDS OF TEMPORARY RESTRAINING ORDERS................................................... 247 4. WHEN WRIT MAY BE ISSUED, WHEN WRIT MAY NOT BE ISSUED .............................................................. 248 5. GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION......................................................................... 249 6. GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION OF INJUNCTION OR RESTRAINING ORDER ...... 250 7. DURATION OF TEMPORARY RESTRAINING ORDERS.................................................................................. 250 8. RULE ON PRIOR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO ATTACHMENT ............... 252 E. RECEIVERSHIP ............................................................................................................................................ 254 1. CASES WHEN RECEIVER MAY BE APPOINTED ........................................................................................... 254 2. REQUISITES ............................................................................................................................................. 255 3. REQUIREMENTS BEFORE ISSUANCE OF AN ORDER APPOINTING A RECEIVER............................................ 255 4. GENERAL POWERS OF A RECEIVER .......................................................................................................... 256 5. KINDS OF BONDS IN RECEIVERSHIP.......................................................................................................... 257 6. TERMINATION OF RECEIVERSHIP ............................................................................................................. 258 F. REPLEVIN.................................................................................................................................................... 258 1. WHEN MAY WRIT BE ISSUED ................................................................................................................... 259 2. REQUISITES ............................................................................................................................................. 259 3. AFFIDAVIT AND BOND; REDELIVERY BOND .............................................................................................. 259 4. SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD PARTY 260 G. PROVISIONAL REMEDIES AND INTERIM RELIEFS UNDER SPECIAL LAWS AND RULES .................................. 261 1. PROVISIONAL REMEDIES OF THE FAMILY COURTS (R.A. 8369) ................................................................. 261 2. HUMAN SECURITY ACT (R.A. 9372) .......................................................................................................... 262 3. ANTI-VIOLENECE AGAINST WOMEN AND CHILDREN ACT (R.A. 9262) ....................................................... 263 4. ANTI-MONEY LAUNDERING ACT (R.A. 9160, AS AMENDED) ..................................................................... 266 5. FINANCIAL REHABILITATION AND INSOLVENCY ACT (R.A. 10142) ............................................................. 267 6. PRECAUTIONARY HOLD DEPARTURE ORDERS .......................................................................................... 269 V. SPECIAL CIVIL ACTIONS .................................................................................................................................. 272 A. NATURE OF SPECIAL CIVIL ACTIONS ........................................................................................................... 273 B. DISTINGUISH: ORDINARY CIVIL ACTIONS AND SPECIAL CIVIL ACTIONS ...................................................... 273 C. JURISDICTION AND VENUE ......................................................................................................................... 274 D. INTERPLEADER ........................................................................................................................................... 274 1. REQUISITES FOR INTERPLEADER .............................................................................................................. 274 2. WHEN TO FILE ........................................................................................................................................ 274 3. DISMISSAL............................................................................................................................................... 275 E. DECLARATORY RELIEF AND SIMILAR REMEDIES.......................................................................................... 275 1. WHO MAY FILE THE ACTION .................................................................................................................... 275 2. REQUISITES OF AN ACTION FOR DECLARATORY RELIEF ............................................................................ 276 3. WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION ................................................................ 277 4. CONVERSION TO ORDINARY ACTION ....................................................................................................... 277 5. PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES. ................................................................................ 278 F. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA .................... 278 1. DISTINCTION IN THE APPLICATION OF RULE 65 AS TO JUDGMENTS OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS, AND OFFICERS ................................................ 279 G. CERTIORARI, PROHIBITION, AND MANDAMUS .......................................................................................... 281 1. DEFINITIONS AND DISTINCTIONS ............................................................................................................. 281 2. REQUISITES ............................................................................................................................................. 283 3. WHEN PETITION FOR CERTIORARI, PROHIBITION OR MANDAMUS IS PROPER .......................................... 285 v ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 4. INJUNCTIVE RELIEF .................................................................................................................................. 288 5. DISTINGUISH: CERTIORARI, APPEAL BY CERTIORARI, AND ARTICLE VIII, SECTION 1 OF HE CONSTITUTION 288 6. DISTINGUISH: PROHIBITION, MANDAMUS, AND INJUNCTION .................................................................. 288 7. WHEN AND WHERE TO FILE PETITION ..................................................................................................... 289 8. EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION BEFORE FILING PETITION ........................... 290 9. RELIEFS PETITIONER IS ENTITLED TO........................................................................................................ 290 10. ACTIONS OR OMISSIONS OF FIRST-LEVEL/REGIONAL TRIAL COURTS IN ELECTION CASES ........................ 290 11. WHERE TO FILE PETITION ...................................................................................................................... 290 12. EFFECTS OF FILING OF AN UNMERITORIOUS PETITION........................................................................... 290 H. QUO WARRANTO ...................................................................................................................................... 291 1. DISTINGUISH: QUO WARRANTO UNDER THE RULES OF COURT AND QUO WARRANTO UNDER THE OMNIBUS ELECTION CODE .......................................................................................................................... 292 2. WHEN GOVERNMENT COMMENCES AN ACTION AGAINST INDIVIDUALS OR ASSOCIATIONS..................... 292 3. WHEN INDIVIDUAL MAY COMMENCE AN ACTION .................................................................................. 293 4. JUDGMENT IN QUO WARRANTO ACTION ................................................................................................ 293 5. RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE ................................................................ 294 6. LIMITATIONS........................................................................................................................................... 294 I. EXPROPRIATION.......................................................................................................................................... 294 1. MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION...................................................................... 295 2. TWO STAGES IN EVERY ACTION FOR EXPROPRIATION.............................................................................. 295 3. WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY ......................... 296 4. NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION .............................................. 297 5. DEFENSES AND OBJECTIONS.................................................................................................................... 297 6. ORDER OF EXPROPRIATION ..................................................................................................................... 298 7. ASCERTAINMENT OF JUST COMPENSATION............................................................................................. 299 8. APPOINTMENT OF COMMISSIONERS; COMMISSIONERS’ REPORT; COURT ACTION UPON COMMISSIONERS’ REPORT ...................................................................................................................................................... 299 9. RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT ......................................................................... 300 10. EFFECT OF RECORDING OF JUDGMENT .................................................................................................. 300 J. FORECLOSURE OF REAL ESTATE MORTGAGE............................................................................................... 301 1. KINDS OF FORECLOSURE ......................................................................................................................... 301 2. NEED FOR SPECIAL POWER OF ATTORNEY ............................................................................................... 302 3. AUTHORITY TO FORECLOSE EXTRAJUDICIALLY ......................................................................................... 302 4. PROCEDURE ............................................................................................................................................ 302 5. POSSESSION BY PURCHASER OF FORECLOSED PROPERTY ........................................................................ 305 6. REMEDY OF DEBTOR IF FORECLOSURE IS NOT PROPER ............................................................................ 306 7. REDEMPTION .......................................................................................................................................... 306 8. WRIT OF POSSESSION.............................................................................................................................. 309 9. ANNULMENT OF SALE ............................................................................................................................. 309 K. PARTITION ................................................................................................................................................. 309 1. WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE DEFENDANTS ....................................................... 310 2. MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION ....................................................................... 311 3. TWO STAGES IN EVERY ACTION FOR PARTITION ...................................................................................... 311 4. ORDER OF PARTITION AND PARTITION BY AGREEMENT........................................................................... 311 5. PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT................................................................................................... 312 6. JUDGMENT AND ITS EFFECTS .................................................................................................................. 313 7. PARTITION OF PERSONAL PROPERTY ....................................................................................................... 313 vi ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 8. PRESCRIPTION OF ACTION....................................................................................................................... 313 9. WHEN PARTITION IS NOT ALLOWED ........................................................................................................ 313 L. FORCIBLE ENTRY AND UNLAWFUL DETAINER ............................................................................................. 313 1. DEFINITIONS AND DISTINCTION............................................................................................................... 313 2. DISTINGUISH: FORCIBLE ENTRY, UNLAWFUL DETAINER, ACCION PUBLICIANA, AND ACCION REINVINDICATORIA ..................................................................................................................................... 315 3. JURISDICTION IN ACCION PUBLICIANA AND ACCION REINVINDICATORIA ................................................. 315 4. WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM MAY THE ACTION BE MAINTAINED...... 315 5. PLEADINGS ALLOWED ............................................................................................................................. 317 6. ACTION ON THE COMPLAINT................................................................................................................... 317 7. WHEN DEMAND IS NECESSARY................................................................................................................ 317 8. PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION .............................................. 317 9. RESOLVING DEFENSE OF OWNERSHIP ..................................................................................................... 318 10. HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT................................................................... 318 11. PROHIBITED PLEADINGS AND MOTIONS ................................................................................................ 319 M. CONTEMPT ............................................................................................................................................... 319 1. KINDS OF CONTEMPT .............................................................................................................................. 319 2. PURPOSE AND NATURE OF EACH............................................................................................................. 319 3. REMEDY AGAINST DIRECT CONTEMPT; PENALTY ..................................................................................... 320 4. REMEDY AGAINST INDIRECT CONTEMPT; PENALTY .................................................................................. 321 5. HOW CONTEMPT PROCEEDINGS ARE COMMENCED ................................................................................ 321 6. ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT .............................................................................. 321 7. WHEN IMPRISONMENT SHALL BE IMPOSED ............................................................................................ 322 8. CONTEMPT AGAINST QUASI-JUDICIAL BODIES ......................................................................................... 322 VI. SPECIAL PROCEEDINGS ................................................................................................................................. 324 A. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS ................................................... 327 1. WHICH COURT HAS JURISDICTION........................................................................................................... 327 2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE ........................................................................................... 328 3. EXTENT OF JURISDICTION OF PROBATE COURT........................................................................................ 329 4. POWERS AND DUTIES OF PROBATE COURT.............................................................................................. 329 B. SUMMARY SETTLEMENT OF ESTATES......................................................................................................... 331 1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED ................................... 331 2. TWO-YEAR PRESCRIPTIVE PERIOD ........................................................................................................... 332 3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR .................................................................................... 333 4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE, WHEN ALLOWED ............................................... 333 5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF ESTATE ................................ 334 C. PRODUCTION AND PROBATE OF WILL........................................................................................................ 335 1. NATURE OF PROBATE PROCEEDING......................................................................................................... 335 2. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE ....................................................... 336 D. ALLOWANCE OR DISALLOWANCE OF WILL................................................................................................. 337 1. CONTENTS OF PETITION FOR ALLOWANCE OF WILL ................................................................................. 338 2. GROUNDS FOR DISALLOWANCE OF WILL ................................................................................................. 339 3. REPROBATE............................................................................................................................................. 339 4. REQUISITES BEFORE WILL PROVED OUTSIDE ALLOWED IN THE PHILIPPINES ............................................ 339 5. EFFECTS OF PROBATE .............................................................................................................................. 340 F. LETTERS TESTAMENTARY AND OF ADMINISTRATION ................................................................................. 340 vii ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 1. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED ............................................................ 340 2. ORDER OF PREFERENCE........................................................................................................................... 342 3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY, SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION ....................................................................................................................................... 344 4. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTION ON THEIR POWERS ............ 344 5.APPOINTMENT OF SPECIAL ADMINISTRATOR ........................................................................................... 346 6. GROUNDS FOR REMOVAL OF EXECUTORS AND ADMINISTRATORS........................................................... 348 F. CLAIMS AGAINST THE ESTATE .................................................................................................................... 349 1. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS .................................................................... 351 2. STATUTE OF NON-CLAIMS ....................................................................................................................... 351 3.CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE ............................................................. 352 4. PAYMENT OF THE DEBTS OF THE ESTATE ................................................................................................. 352 G. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS .................................... 355 1. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS .................................... 355 2. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY THE DECEASED ..................................................................................................................... 356 H. Distribution and Partition .......................................................................................................................... 357 1. LIQUIDATION .......................................................................................................................................... 357 2. PROJECT OF PARTITION ........................................................................................................................... 357 3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE .................................................. 357 4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION ..................................................... 357 I. TRUSTEES .................................................................................................................................................... 358 1. TRUSTEE DISTINGUISHED FROM EXECUTOR OR ADMINISTRATOR ............................................................ 359 2. CONDITIONS OF THE BOND ..................................................................................................................... 360 3. REQUISITES FOR REMOVAL AND RESIGNATION OF A TRUSTEE ................................................................. 360 4.GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE.................................................................... 360 5. EXTENT OF AUTHORITY OF TRUSTEE........................................................................................................ 360 J. ESCHEAT ..................................................................................................................................................... 361 1. WHEN TO FILE; THREE INSTANCES OF ESCHEAT ....................................................................................... 361 2. REQUISITES FOR FILING OF PETITION....................................................................................................... 362 3. REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM ........................................... 362 K. GUARDIANSHIP .......................................................................................................................................... 362 1. VENUE .................................................................................................................................................... 363 2. APPOINTMENT OF GUARDIANS ............................................................................................................... 363 3. GENERAL POWERS AND DUTIES OF GUARDIANS ...................................................................................... 365 4. TERMINATION OF GUARDIANSHIP ........................................................................................................... 367 5. RULE ON GUARDIANSHIP OVER MINORS (A.M. No. 03-02-05-SC, effective May 1, 2003) .......................... 367 N. ADOPTION ................................................................................................................................................. 369 1. DOMESTIC ADOPTION V. INTER-COUNTRY ADOPTION ............................................................................. 369 2. DOMESTIC ADOPTION ............................................................................................................................. 372 3. INTER-COUNTRY ADOPTION .................................................................................................................... 375 M. WRIT OF HABEAS CORPUS ........................................................................................................................ 384 1. CONTENTS OF THE PETITION ................................................................................................................... 385 2. CONTENTS OF RETURN............................................................................................................................ 386 3. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION ............................................................ 388 4. WHEN NOT PROPER/APPLICABLE ............................................................................................................ 388 5.WHEN WRIT DISALLOWED/ DISCHARGED ................................................................................................. 388 6. DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA ..................................................................... 389 viii ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 7. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC) ............................................................................................................................... 389 N. WRIT OF AMPARO (A.M. No. 07-9-12-SC) .................................................................................................. 391 1. COVERAGE .............................................................................................................................................. 391 2. DIFFERENCES BETWEEN AMPARO AND SEARCH WARRANT ..................................................................... 392 3. WHO MAY FILE........................................................................................................................................ 393 4. CONTENTS OF RETURN............................................................................................................................ 394 5. EFFECTS OF FAILURE TO FILE RETURN...................................................................................................... 394 6. OMNIBUS WAIVER RULE ......................................................................................................................... 394 7. PROCEDURE FOR HEARING...................................................................................................................... 395 8. INSTITUTION OF SEPARATE ACTION......................................................................................................... 395 9. EFFECT OF FILING A CRIMINAL ACTION.................................................................................................... 395 10.CONSOLIDATION .................................................................................................................................... 395 11.INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT ............................................................ 395 12. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO ........................................ 396 O. WRIT OF HABEAS DATA (A.M. No. 08-1-16-SC) .......................................................................................... 397 1. SCOPE AND AVAILABILITY OF WRIT.......................................................................................................... 397 2. DISTINGUISH FROM HABEAS CORPUS AND AMPARO ............................................................................... 397 3. CONTENTS OF THE PETITION ................................................................................................................... 398 4. CONTENTS OF RETURN ........................................................................................................................... 398 5. INSTANCES WHEN PETITION IS HEARD IN THE CHAMBERS ....................................................................... 399 6. CONSOLIDATION ..................................................................................................................................... 399 7. EFFECT OF FILING A CRIMINAL ACTION.................................................................................................... 399 8. INSTITUTION OF SEPARATE ACTION......................................................................................................... 399 9. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF HABEAS DATA .................................. 399 P. CHANGE OF NAME ..................................................................................................................................... 399 1. DIFFERENCES UNDER RULE 103, REPUBLIC ACT NO. 9048 AND RULE 108 ................................................. 399 2. GROUNDS FOR CHANGE OF NAME .......................................................................................................... 401 Q. ABSENTEES ................................................................................................................................................ 402 1. PURPOSE OF THE RULE ............................................................................................................................ 402 2. WHO MAY FILE; WHEN TO FILE................................................................................................................ 403 R. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY ........................................................ 403 1. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO R.A. 9408 ...... 404 S. APPEALS IN SPECIAL PROCEEDINGS ............................................................................................................ 404 1. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN............................................................... 404 2. WHEN TO APPEAL ................................................................................................................................... 405 3. MODES OF APPEAL.................................................................................................................................. 405 4. RULE ON ADVANCE DISTRIBUTION .......................................................................................................... 405 VII. CRIMINAL PROCEDURE ................................................................................................................................ 408 A. GENERAL MATTERS.................................................................................................................................... 410 1. DISTINGUISH JURISDICTION OVER SUBJECT MATTER FROM JURISDICTION OVER PERSON OF THE ACCUSED ................................................................................................................................................................... 410 2. REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION ........................................................................... 411 3. JURISDICTION OF CRIMINAL COURTS....................................................................................................... 413 4. WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN CRIMINAL PROSECUTION ........................................... 418 B. PROSECUTION OF CRIMINAL OFFENSES ..................................................................................................... 419 ix ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 1. CRIMINAL ACTIONS, HOW INSTITUTED .................................................................................................... 419 2. WHO MAY FILE THEM, CRIMES THAT CANNOT BE PROSECUTED DE OFICIO.............................................. 422 3. CRIMINAL ACTIONS, WHEN ENJOINED ..................................................................................................... 422 4. CONTROL OF PROSECUTION.................................................................................................................... 422 5. SUFFICIENCY OF COMPLAINT OR INFORMATION ..................................................................................... 425 6. DESIGNATION OF OFFENSE...................................................................................................................... 427 7. CAUSE OF THE ACCUSATION.................................................................................................................... 431 8. DUPLICITY OF THE OFFENSE; EXCEPTION ................................................................................................. 431 9. AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION....................................................... 432 10. VENUE OF CRIMINAL ACTIONS .............................................................................................................. 434 11. INTERVENTION OF OFFENDED PARTY .................................................................................................... 435 C. PROSECUTION OF CIVIL ACTION ................................................................................................................. 435 1. RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION.............................................. 435 2. WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY ............................................................................. 437 3. WHEN SEPARATE CIVIL ACTION IS SUSPENDED ........................................................................................ 437 4. EFFECT OF THE DEATH OF ACCUSED OR CONVICT ON CIVIL ACTION......................................................... 438 5. PREJUDICIAL QUESTION .......................................................................................................................... 439 6. RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION ...................... 440 D. PRELIMINARY INVESTIGATION................................................................................................................... 441 1. NATURE OF RIGHT................................................................................................................................... 442 2. PURPOSES OF PRELIMINARY INVESTIGATION........................................................................................... 443 3. WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE ........................................... 443 4. RESOLUTION OF INVESTIGATION PROSECUTOR ....................................................................................... 447 5. REVIEW ................................................................................................................................................... 447 6. WHEN WARRANT OF ARREST MAY ISSUE................................................................................................. 449 7. CASES NOT REQUIRING A PRELIMINARY INVESTIGATION ......................................................................... 451 8. REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION ............................................... 451 9. INQUEST ................................................................................................................................................. 451 E. ARREST....................................................................................................................................................... 453 1. ARREST, HOW MADE ............................................................................................................................... 453 2. ARREST WITHOUT WARRANT, WHEN LAWFUL ........................................................................................ 454 3. METHOD OF ARREST ............................................................................................................................... 456 4. REQUISITES OF A VALID WARRANT OF ARREST ........................................................................................ 457 5. DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST .................................... 457 F. BAIL ............................................................................................................................................................ 458 1. NATURE .................................................................................................................................................. 458 2. WHEN A MATTER OF RIGHT; EXCEPTIONS ............................................................................................... 460 3. WHEN A MATTER OF DISCRETION ........................................................................................................... 461 4. HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES .................................................................... 462 5. GUIDELINES IN FIXING AMOUNT OF BAIL................................................................................................. 463 6. BAIL WHEN NOT REQUIRED ..................................................................................................................... 466 7. INCREASE OR REDUCTION OF BAIL .......................................................................................................... 467 8. FORFEITURE AND CANCELLATION OF BAIL ............................................................................................... 467 9. APPLICATION NOT A BAR TO OBJECTIONS IN ILLEGAL ARREST, LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION .......................................................................................................................................... 469 G. ARRAIGNMENT AND PLEA ......................................................................................................................... 469 1. HOW MADE ............................................................................................................................................ 469 2. WHEN SHOULD PLEA OF NOT GUILTY BE ENTERED .................................................................................. 471 x ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 3. WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE ................................................... 472 4. ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE, WHAT THE COURT SHOULD DO....................................... 473 5. SEARCHING INQUIRY ............................................................................................................................... 473 6. IMPROVIDENT PLEA ................................................................................................................................ 474 H. MOTION TO QUASH ................................................................................................................................... 476 1. GROUNDS ............................................................................................................................................... 477 2. DISTINGUISH FROM DEMURRER TO EVIDENCE ........................................................................................ 478 3. EFFECTS OF SUSTAINING THE MOTION TO QUASH................................................................................... 479 4. EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION IS NOT A BAR TO ANOTHER PROSECUTION .... 480 5. DOUBLE JEOPARDY ................................................................................................................................. 480 6. PROVISIONAL DISMISSAL......................................................................................................................... 482 I. PRE-TRIAL.................................................................................................................................................... 484 1. MATTERS TO BE CONSIDERED DURING PRE-TRIAL ................................................................................... 484 2. WHAT THE COURT SHOULD DO WHEN PROSECUTION AND OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED ........................................................................................................................................ 484 3. PRE-TRIAL AGREEMENT ........................................................................................................................... 486 4. NON-APPEARANCE DURING PRE-TRIAL .................................................................................................... 486 5. PRE-TRIAL ORDER.................................................................................................................................... 486 J. TRIAL .......................................................................................................................................................... 490 1. INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW............................................................. 493 2. REQUISITE BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE OF WITNESS .......................... 493 3. TRIAL IN ABSENTIA .................................................................................................................................. 495 4. REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED PERIOD ......................... 496 5. REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE WITNESS ............................................... 496 6. EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS ........................................................................ 497 7. DEMURRER TO EVIDENCE........................................................................................................................ 498 8. GUIDELINES ON CONTINUOUS TRIAL ....................................................................................................... 499 K. JUDGMENT ................................................................................................................................................ 503 1. REQUISITES OF A JUDGMENT .................................................................................................................. 503 2. CONTENTS OF JUDGMENT....................................................................................................................... 503 3. PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION OF JUDGMENT IN ABSENTIA .............. 504 4. WHEN DOES JUDGMENT BECOME FINAL ................................................................................................. 505 L. NEW TRIAL OR RECONSIDERATION............................................................................................................. 507 1. GROUNDS FOR NEW TRIAL ...................................................................................................................... 507 2. GROUNDS FOR RECONSIDERATION ......................................................................................................... 507 3. REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON GROUND OF NEWLY DISCOVERED EVIDENCE ... 508 4. EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION .................................................................. 508 M. APPEAL ..................................................................................................................................................... 509 1. EFFECT OF AN APPEAL ............................................................................................................................. 509 2. WHERE TO APPEAL .................................................................................................................................. 512 3. HOW APPEAL TAKEN ............................................................................................................................... 512 4. EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED ................................................................................... 512 5. GROUNDS FOR DISMISSAL OF APPEAL ..................................................................................................... 512 N. SEARCH AND SEIZURE ................................................................................................................................ 513 1. NATURE OF SEARCH WARRANT ............................................................................................................... 513 2. DISTINGUISH FROM WARRANT OF ARREST .............................................................................................. 514 3. APPLICATION FOR SEARCH WARRANT, WHERE FILED............................................................................... 514 4. PROBABLE CAUSE FOR ISSUANCE OF SEARCH WARRANT ......................................................................... 516 xi ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 5. PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESS ................................................... 516 6. PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO BE SEIZED................................................... 517 7. PERSONAL PROPERTY TO BE SEIZED ........................................................................................................ 517 8. EXCEPTIONS TO SEARCH WARRANT REQUIREMENT................................................................................. 519 9. REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE................................................................................ 521 10. CYBERCRIME WARRANTS ...................................................................................................................... 521 O. PROVISIONAL REMEDIES ........................................................................................................................... 529 VIII. EVIDENCE ................................................................................................................................................... 532 A. GENERAL PRINCIPLES OF EVIDENCE ........................................................................................................... 534 1. CONCEPT OF EVIDENCE ........................................................................................................................... 534 2. SCOPE OF THE RULES OF EVIDENCE ......................................................................................................... 534 3. DISTINGUISH: PROOF AND EVIDENCE ...................................................................................................... 536 4. DISTINGUISH: FACTUM PROBANS AND FACTUM PROBANDUM ............................................................... 536 5. ADMISSIBILITY OF EVIDENCE ................................................................................................................... 536 6. BURDEN OF PROOF AND BURDEN OF EVIDENCE ...................................................................................... 543 7. PRESUMPTIONS ...................................................................................................................................... 544 8. CONSTRUCTION OF RULES OF EVIDENCE ................................................................................................. 554 9. QUANTUM OF EVIDENCE ........................................................................................................................ 554 B. JUDICIAL NOTICE AND ADMISSIONS .......................................................................................................... 557 1. WHAT NEED NOT BE PROVED .................................................................................................................. 557 2. MATTERS OF JUDICIAL NOTICE ................................................................................................................ 557 3. JUDICIAL ADMISSIONS............................................................................................................................. 563 C. OBJECT (REAL) EVIDENCE ........................................................................................................................... 565 1. NATURE OF OBJECT EVIDENCE ................................................................................................................ 565 2. REQUISITES OF ADMISSIBILITY................................................................................................................. 566 3. CATEGORIES OF OBJECT EVIDENCE .......................................................................................................... 567 4. CHAIN OF CUSTODY IN RELATION TO SEC. 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 ................................................................................................................................................................... 568 5. DNA EVIDENCE ........................................................................................................................................ 570 D. DOCUMENTARY EVIDENCE ........................................................................................................................ 572 1. MEANING OF DOCUMENTARY EVIDENCE ................................................................................................ 572 2. REQUISITES OF ADMISSIBILITY................................................................................................................. 573 3. ORIGINAL DOCUMENT RULE (FORMERLY THE BEST EVIDENCE RULE) ....................................................... 573 4. ELECTRONIC EVIDENCE............................................................................................................................ 579 5. PAROL EVIDENCE RULE............................................................................................................................ 583 6. AUTHENTICATION AND PROOF OF DOCUMENTS ..................................................................................... 589 E. TESTIMONIAL EVIDENCE............................................................................................................................. 595 1. QUALIFICATIONS OF A WITNESS .............................................................................................................. 595 2. DISQUALIFICATIONS OF A WITNESS ......................................................................................................... 595 3. EXAMINATION OF A WITNESS ................................................................................................................. 606 4. ADMISSIONS AND CONFESSIONS ............................................................................................................. 617 5. HEARSAY RULE ........................................................................................................................................ 626 6. OPINION RULE ........................................................................................................................................ 640 7. CHARACTER EVIDENCE ............................................................................................................................ 642 8. JUDICIAL AFFIDAVITS............................................................................................................................... 643 F. OFFER AND OBJECTION .............................................................................................................................. 646 xii ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 1. OFFER OF EVIDENCE ................................................................................................................................ 646 2. WHEN TO MAKE AN OFFER ..................................................................................................................... 646 3. OBJECTION.............................................................................................................................................. 647 4. REPETITION OF AN OBJECTION (CONTINUING OBJECTION) ...................................................................... 648 5. RULING ................................................................................................................................................... 648 6. STRIKING OUT OF AN ANSWER ................................................................................................................ 648 7. TENDER OF EXCLUDED EVIDENCE ............................................................................................................ 649 IX. REVISED RULES ON SUMMARY PROCEDURE ................................................................................................. 651 A. CASES COVERED BY THE RULE .................................................................................................................... 651 B. EFFECT OF FAILURE TO ANSWER ................................................................................................................ 652 C. PRELIMINARY CONFERENCES AND APPEARANCES OF PARTIES .................................................................. 652 D. PROHIBITED PLEADINGS AND MOTIONS.................................................................................................... 653 E. APPEAL ....................................................................................................................................................... 654 X. KATARUNGANG PAMBARANGAY................................................................................................................... 656 A. CASES COVERED......................................................................................................................................... 656 B. SUBJECT MATTER FOR AMICABLE SETTLEMENT ......................................................................................... 657 C. VENUE........................................................................................................................................................ 658 D. WHEN PARTIES MAY DIRECTLY GO TO COURT ........................................................................................... 659 E. EXECUTION................................................................................................................................................. 659 F. REPUDIATION ............................................................................................................................................. 659 XI. RULES OF PROCEDURE FOR SMALL CLAIMS CASES ........................................................................................ 662 A. SCOPE AND APPLICABILITY OF THE RULE ................................................................................................... 662 B. COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE......................................................................... 664 C. PROHIBITED PLEADINGS AND MOTIONS .................................................................................................... 666 D. APPEARANCES ........................................................................................................................................... 666 E. HEARING; DUTY OF THE JUDGE .................................................................................................................. 667 F. FINALITY OF JUDGMENT ............................................................................................................................. 667 XII. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES (AM No. 09-6-8-SC) ................................................... 669 A. SCOPE AND APPLICABILITY OF THE RULE ................................................................................................... 669 B. CIVIL PROCEDURE ...................................................................................................................................... 670 1. PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION .................... 670 2. PRE-TRIAL CONFERENCE; CONSENT DECREE ............................................................................................ 670 3. PROHIBITED PLEADINGS AND MOTIONS .................................................................................................. 670 4. TEMPORARY ENVIRONMENTAL PROTECTION ORDER (Rule 2, Sec. 8) ....................................................... 671 5. JUDGMENT AND EXECUTION; RELIEFS IN A CITIZEN’S SUIT....................................................................... 671 6. PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS ..................... 671 7. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION ............................................................................ 671 C. SPECIAL PROCEEDINGS............................................................................................................................... 672 1. WHAT IS A WRIT OF KALIKASAN .............................................................................................................. 672 2. PROHIBITED PLEADINGS AND MOTIONS .................................................................................................. 674 xiii ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 3. WHAT DISCOVERY MEASURES ARE AVAILABLE TO THE PARTIES? ............................................................. 674 4. WHAT IS A WRIT OF CONTINUING MANDAMUS? ..................................................................................... 675 D. CRIMINAL PROCEDURE .............................................................................................................................. 677 1. WHO MAY FILE........................................................................................................................................ 677 2. INSTITUTION OF CRIMINAL AND CIVIL ACTION ........................................................................................ 677 3. ARREST WITHOUT WARRANT, WHEN VALID ............................................................................................ 677 4. PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS.......................................................... 677 5. BAIL ........................................................................................................................................................ 678 6. ARRAIGNMENT AND PLEA ....................................................................................................................... 678 7. PRE-TRIAL ............................................................................................................................................... 678 8. SUBSIDIARY LIABILITIES ........................................................................................................................... 679 E. EVIDENCE ................................................................................................................................................... 679 1. PRECAUTIONARY PRINCIPLE .................................................................................................................... 679 2. DOCUMENTARY EVIDENCE ...................................................................................................................... 680 XIII. ALTERNATIVE DISPUTE RESOLUTION .......................................................................................................... 682 A. TYPES OF PROCESSES AND PROCEDURES IN ALTERNATIVE DISPUTE RESOLUTION ..................................... 682 B. DOMESTIC ARBITRATION ........................................................................................................................... 685 C. JUDICIAL REVIEW OF ARBITRAL AWARDS................................................................................................... 688 D. APPEAL FROM COURT DECISIONS ON ARBITRAL AWARDS ........................................................................ 690 E. VENUE AND JURISDICTION ......................................................................................................................... 691 F. SPECIAL RULES ON COURT ALTERNATIVE DISPUTE RESOLUTION ................................................................ 691 xiv GENERAL PRINCIPLES Remedial Law ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 I. GENERAL PRINCIPLES TOPIC OUTLINE UNDER THE SYLLABUS: I. GENERAL PRINCIPLES A. DISTINGUISH: SUBSTANTIVE LAW AND REMEDIAL LAW B. RULE-MAKING POWER OF THE SUPREME COURT 1. Limitations on the rule-making power of the Supreme Court 2. Power of the Supreme Court to amend and suspend procedural rules C. NATURE OF PHILIPPINE COURTS 1. Meaning of a court 2. Distinguish: court and judge 3. Classification of Philippine courts 4. Courts of original and appellate jurisdiction 5. Courts of general and special jurisdiction 6. Constitutional and statutory courts 7. Courts of law and equity 8. Principle of judicial hierarchy 9. Doctrine of non-interference or doctrine of judicial stability A. SUBSTANTIVE LAW AS DISTINGUISHED FROM REMEDIAL LAW Remedial Law It is a branch of law that prescribes the methods of enforcing rights and obligations created by substantive law. It provides a procedural system for obtaining redress for the invasion of rights and violations of duties. It also prescribes rules as to how suits are filed, tried and decided upon by the courts. (Bustos v. Lucero, G.R. No. L-2068, 1948) Major Aspects: Civil Procedure; Criminal Procedure; Special Proceedings; Evidence. (RIANO, 2019, p. 2). Retroactive Application of Procedural Rules to Pending Actions; Exception The retroactive application of procedural laws does not violate any personal rights because no vested rights may attach to nor rise therefrom. (In the Matter to Declare in Contempt of Court Hon. Simeon Datumanong, G.R. No. 150274, 2006). Retroactive application does not apply when the statute itself expressly or impliedly provides that pending actions are excepted from its operation, or when applying it to pending proceedings would impair vested rights. Under appropriate circumstances, courts may deny the retroactive application of procedural laws in the event that it would not be feasible or would work injustice. (Tan v. CA, G.R. No. 136368, 2002). Substantive Law vs. Remedial Law SUBSTANTIVE LAW REMEDIAL LAW Substantive law is that part of the law which creates, defines, and regulates rights, or which regulates the rights and duties which give rise to a cause of action Remedial law prescribes the method of enforcing rights or obtaining redress for their invasions. (Primicias v. Ocampo, G.R. No. L-6120, 1953) Page 2 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 (Bustos v. Lucero, G.R. No. L-2068, 1948) Makes vested rights possible. (Fabian v Desierto, G.R. 129742, 1998) Prospective in application. (Spouses Tirona v Alejo, G.R. 129313, 2001) Originates from the legislature, and it is not embraced by the rule-making power of the Supreme Court (Primicias v Ocampo, G.R. L-6120, 1953) No vested rights may attach to nor arise therefrom (Go v. Sunbanun, G.R. No. 168240, 2011) Retroactive in application. (Calacala v. Republic, G.R. No. 154415, 2005) Does not originate from the legislature, but has the force and effect of law if not in conflict with substantive law. (Alvero v. De La Rosa, G.R. No. L-286, 1946) B. RULE-MAKING POWER OF THE SUPREME COURT Power to Promulgate Procedural Rules The Supreme Court shall have the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the under-privileged. (PHIL. CONST. art. VIII, §5[5]) Separation of Powers The 1987 Constitution took away the power of the Congress to repeal, alter, or supplement rules concerning pleading, practice, and procedure. In fine, the power to promulgate rules is no longer shared by the Supreme Court with Congress, more so with the executive. (Echegaray v Secretary of Justice, 301 SCRA 96) 1. LIMITATIONS ON THE RULE-MAKING POWER OF THE SUPREME COURT REMEDIAL LAW a. The rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases; b. The rules shall be uniform for courts of the same grade; and c. The rules shall not diminish, increase, or modify substantive rights. (PHIL. CONST. art. VIII, § 5) 2. POWER OF THE SUPREME COURT TO AMEND AND SUSPEND PROCEDURAL RULES Power to Amend Procedural Rules The Supreme Court has the power to amend, repeal, or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. (Neypes v Court of Appeals, G.R. No. 141524, 2005). Power to Relax/Suspend Procedural Rules The Supreme Court’s constitutional power to promulgate rules of practice and procedure and to amend or repeal the same necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court. (Pinga v. Heirs of Santiago, G.R. No. 170354, 2006). Compliance with the procedural rules is the general rule, and abandonment thereof should only be done in the most exceptional circumstances. (Pilapil v. Heirs of Briones, G.R. No. 150175, 2007). The courts have the power to relax or suspend technical or procedural rules, or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it; what constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the courts. (Commissioner of Internal Revenue v. Migrant Pagbilao Corporation, G.R. No. 159593, 2006) The power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which the Court itself had already declared to be final. (Apo Fruits Corporation v. Land Bank of the Philippines, G.R. No. 164195, Oct. 12, 2010). Page 3 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Reasons That Would Warrant the Suspension of the Rules: 1. Most persuasive and weighty reasons; 2. To relieve a litigant from an injustice not commensurate with his failure to comply with the prescribed procedure; 3. Good faith of the defaulting party by immediately payment within a reasonable time from the time of the default; 4. The existence of special or compelling circumstances; 5. The merits of the case; 6. A cause not entirely attributable to the fault or negligence of the party favored by the suspension of the Rules; 7. A lack of any showing that the review sought is merely frivolous and dilatory; 8. The other party will not be unjustly prejudiced thereby; 9. Fraud, accident, mistake, or excusable negligence without appellant's fault; 10. Peculiar legal and equitable circumstances attendant to each case; 11. In the name of substantial justice and fair play; 12. Importance of the issues involved; and 13. Exercise of sound discretion by the judge guided by all the attendant circumstances. (Labao v. Flores, G.R. No. 187984, Nov. 11, 2010) Power to Discipline Judiciary Employees for Non-Compliance with Rules and Regulations The Supreme Court is given exclusive administrative supervision over all courts and judicial personnel. Only the Supreme Court can oversee the judges’ and court personnel’s compliance with all laws, rules and regulations. No other branch of government may intrude into this power, lest it violates the doctrine of separation of powers. (PHIL. CONST. art. VIII, § 6) Administrative jurisdiction over a court employee belongs to the Supreme Court, regardless of whether the offense was committed before or after employment in the judiciary. (Sarah Ampong v. CSC, GR No. 167916, Aug. 26, 2008) C. NATURE OF PHILIPPINE COURTS 1. MEANING OF A COURT It is an organ of the government belonging to the judicial department, the function of which is the application of the laws to controversies brought before it as well as the public administration of justice. (Black’s, 5th Edition, p. 356, see RIANO, 2019, p. 27). Judicial Power It includes the duty of the courts of justice: 1. To settle actual controversies involving rights, which are legally demandable and enforceable; and 2. To determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (PHIL. CONST. art. VIII, § 1). The Supreme Court’s power of judicial review is limited to actual cases and controversies. There is an actual case or controversy when the case presents conflicting or opposite legal rights that may be resolved by the court in a judicial proceeding. A case becomes moot and academic when, by virtue of supervening events, the conflicting issue that may be resolved by the court ceases to exist. There is no longer any justiciable controversy that may be resolved by the court. (Republic of the Philippines v. Moldex Realty Inc., GR No. 171041, 2016) 2. DISTINGUISH: COURT AND JUDGE COURT JUDGE A tribunal officially An officer assembled under tribunal authority of law; of such An organ of the Person who sits on the government with a court personality separate & distinct from the judge A being in imagination A natural person comparable to a corporation Page 4 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 An office A public officer (RIANO, 2019, p. 28) The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it. In other words, the judge may resign, become incapacitated, or be disqualified to hold office, but the court remains. (ABC Davao Auto Supply, Inc. v Court of Appeals, G.R. No. 113296, Jan. 16, 1998) 3. CLASSIFICATION OF PHILIPPINE COURTS Superior and Inferior Courts SUPERIOR COURT INFERIOR COURT Superior courts are courts with controlling authority over some other court or courts, and with certain original jurisdiction of its own. (RIANO, 2019, p. 24) Inferior courts are those which are subordinate to other courts and whose judgments and decrees can be reviewed by the higher tribunals. (RIANO, 2019, p. 24) These are courts which have the power of review or supervision over lower courts (1 REGALADO, p. 1). These are courts, in relation to a superior court, which are lower in rank and subject to review and supervision by the latter (1 REGALADO, p. 1). Courts of Record and Not of Record. Court of record are those which are bound to keep a record of their proceedings for a perpetual memorial and testimony thereof. (Melgar v. Delgado, G.R. No. 30892, Jul. 22, 1929) A court not of record is one which does not keep written accounts of its proceedings. instance must nevertheless proceed by trial de novo. Conversely, as long as the records are taken of the trial, these records may be the basis of the review and decision of the appellate court, notwithstanding that the inferior court is not a court of record. (Ramirez v. Court of Appeals, G.R. No. L-33300, Oct. 22, 1975) Note: R.A. No. 6031 mandates all Municipal Trial Courts to be courts of record. Criminal Court and Civil Court CRIMINAL COURT CIVIL COURT Those which adjudicate offenses alleged to have been committed against the State (21 CJS, Courts, Sec. 4) Those which determine controversies between private persons. (21 CJS, Courts, Sec. 4) 4. COURTS OF ORIGINAL AND APPELLATE JURISDICTION ORIGINAL COURT APPELLATE COURT Actions or proceedings Has the power of are originally filed with review over the it. decisions or orders of a lower court. (21 CJS, Courts, Sec. 3) Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts are courts of original jurisdiction. The Regional Trial Court, Court of Appeals, and the Supreme Court are both courts of original and appellate jurisdiction. (RIANO, 2019, pp. 25-26) Note: The Supreme Court En Banc is not an appellate court to which decisions or resolutions of a division of the Supreme Court may be appealed. (Id.) Even if an inferior court has already been officially declared a court of record, but if for one reason or another, no record of its proceedings has actually been taken in a given case, the appeal in such an Page 5 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 5. COURTS OF GENERAL AND SPECIAL JURISDICTION COURTS OF GENERAL JURISDICTION COURT OF SPECIAL JURISDICTION Those with competence to decide on their own jurisdiction and take cognizance of all cases, whether civil and criminal, of a particular nature. (21 CJS Courts, Sec. 3) Those which have jurisdiction only for a particular purpose, or are clothed with special powers for the performance of specified duties beyond which they have no authority of any kind (21 CJS Courts, Sec. 3) It has the competence to exercise jurisdiction over cases not falling within the jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions, i.e., the RTC. (Sec. 19[6] and 20, BP 129) These are tribunals exercising limited jurisdiction over particular or specialized categories of actions, e.g., Family Courts, Commercial Courts, Court of Tax Appeals, Sandiganbayan. (Re: Problem of Delays in Cases Before the Sandiganbayan, A.M. No. 00-8-05-SC (Resolution), Nov. 28, 2001) 6. CONSTITUTIONAL AND STATUTORY COURTS CONSTITUTIONAL COURT STATUTORY COURT One created by a One created by a law direct constitutional other than the provision. constitution. In the Philippines, only the Supreme Court is a constitutional court. (PHIL. CONST., art. 8, Sec. 1) All courts in the Philippines, except the Supreme Court, are statutory courts. (RIANO, 2019, p. 23). 7. COURTS OF LAW AND EQUITY Courts of Law and Equity, Defined A court of law is any tribunal duly administering the laws of the land. (US v. Tamparong, G.R. No. L-9527, Aug. 23, 1915). A court of equity is one when the Court relaxes the strict application of the rules where strong considerations of justice are manifest. (Lefebre v A Brown Company, G.R. 224973, Sep. 27, 2017). Philippine courts are both courts of law and equity. (US v. Tamparong, G.R. No. L-9527, Aug. 23, 1915) Equity and Equity Jurisdiction Defined Equity is justice outside legality. (Ocampo v Enriquez (Resolution), G.R. 225973, Aug. 8, 2017). Equity jurisdiction is the power of the court to resolve issues presented in a case, in accordance with the natural rules of fairness and justices, and in the absence of a clear positive law governing such issues (RIANO, 2019, p. 16-17), and must always be anchored on the basic consideration that the same must be warranted by the circumstances obtaining in the case. (Visayan Electric Co. Employees Union-ALU-TUCP v. Visayan Electric Co., Inc., G.R. No. 205575, Jul. 22, 2015) Equity jurisdiction is based on the rule of liberality in the interpretation of the Rules to achieve substantial justice. When Equity Does Not Apply a. When there is a law applicable to a given case (Smith Bell Co. v. CA, 267 SCRA 530); b. When there is a judicial pronouncement available to the issue (RIANO, p. 17); or c. When the one seeking its active interposition has been guilty of unlawful or inequitable conduct in the matter with relation to which he seeks relief. (Manotok IV v. Heirs of Barque, G.R. Nos. 162335 & 16260 (Resolution), Dec. 18, 2008) Page 6 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 8. PRINCIPLE OF JUDICIAL HIERARCHY Doctrine of Hierarchy of Courts Under the principle of hierarchy of courts, direct recourse to the Supreme Court is improper because this Court is a court of last resort and must remain to be so in order for it to satisfactorily perform its constitutional functions, thereby allowing it to devote its time and attention to matters within its exclusive jurisdiction and preventing the overcrowding of its docket. (Dy v. Bibat-Palamos, G.R. No. 196200, 2013) The judicial system follows a ladderized scheme which, in essence, requires that lower courts initially decide on a case before it is considered by a higher court. This means that a higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts below. (Capalla v. Commission on Elections, G.R. Nos. 201112, June 13, 2012) The doctrine of hierarchy of courts finds application where courts have concurrent jurisdiction – that which is exercised by different courts over the same subject matter. (Unduran v Aberasturi, G.R. 181284, 2017) This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with Regional Trial Court, and those against the latter, with the Court of Appeals. (Tolentino v. People, G.R. No. 170396, Aug. 31, 2006) Exceptions to the Doctrine A direct invocation of the Supreme Court’s original jurisdiction to issue a writ of certiorari should be allowed only when there are special and important reasons, clearly and specifically set out in the petition. (First United v. Poro Point, GR No. 178799, 2009) These cases are: a. When special and important reasons are clearly stated in the petition; b. When dictated by public welfare and the advancement of public policy; REMEDIAL LAW c. When demanded by the broader interest of justice; d. When the challenged orders were patent nullities; e. When analogous exceptional and compelling circumstances called for and justified our immediate and direct handling of the case (for a-e, Republic v. Caguioa, G.R. No. 174385, 2013); f. When there are genuine issues of constitutionality that must be addressed at the most immediate time (The Diocese of Bacolod v. Commission on Elections, G.R. 205728, 2015); g. When the issues raised are of transcendental importance. (Rama v Moises, G.R. 197146, 2017) 9. DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY General Rule This principle holds that courts of equal and coordinate jurisdiction cannot interfere with each other’s orders. (Lapu-lapu Development and Housing Corp v. Group Management Corp, G.R. No. 141407, 2002). Hence, a Regional Trial Court has no power or authority to nullify or enjoin the enforcement of a writ of possession issued by another Regional Trial Court. (Suico Industrial Corporation v. Court of Appeals, G.R. No. 123050, 1999). The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review. (Villamor v. Salas, G.R. No. L-101041, 1991). This doctrine applies with equal force to administrative bodies; when the law provides for an appeal from the decision of an administrative body to the Supreme Court or Court of Appeals, it means that such body is co-equal with the Regional Trial Court in terms of rank and stature, and logically beyond the control of the latter (Philippine Sinter Corporation v. Cagayan Electric Power and Light Co., Inc., G.R. No. 127371, 2002). Page 7 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW Exceptions to the Doctrine The doctrine of judicial stability does not apply: 1. Where a third-party claimant is involved (Santos v. Bayhon, G.R. No. 88643, 1991); 2. Execution through a separate action (Rule 39, Sec. 16); 3. Preliminary Attachment (Rule 57, Sec. 14); 4. Replevin, through intervention, since the main action is still pending (Rule 60, Sec. 7). ————- end of topic ————- Page 8 of 711 JURISDICTION Remedial Law ATENEO CENTRAL BAR OPERATIONS 2020/21 II. JURISDICTION TOPIC OUTLINE UNDER THE SYLLABUS: REMEDIAL LAW SUMMARY PROCEDURE AND BARANGAY CONCILIATION H. HOW JURISDICTION IS DETERMINED II. JURISDICTION A. CLASSIFICATION OF JURISDICTION 1. Distinguish: original and appellate 2. Distinguish: general and special 3. Distinguish: exclusive and concurrent B. DOCTRINE OF HIERARCHY OF COURTS AND CONTINUITY OF JURISDICTION C. JURISDICTION OF VARIOUS PHILIPPINE COURTS 1. Supreme Court 2. Court of Appeals 3. Court of Tax Appeals 4. Sandiganbayan 5. Regional Trial Courts 6. Family Courts 7. Metropolitan Trial Courts, Municipal Trial Courts, Municipal Trial Courts in Cities, Municipal Circuit Trial Courts D. ASPECTS OF JURISDICTION 1. Jurisdiction over the parties a. How jurisdiction over the plaintiff is acquired b. How jurisdiction over the defendant is acquired 2. Jurisdiction over the subject matter a. Meaning of jurisdiction over the subject matter b. Distinguish: jurisdiction and exercise of jurisdiction c. How jurisdiction is conferred and determined d. Distinguish: doctrine of primary administrative jurisdiction and doctrine of exhaustion of administrative remedies e. Doctrine of adherence of jurisdiction f. Objections to jurisdiction over the subject matter g. Effect of estoppel on objection to jurisdiction 3. Jurisdiction over the issues 4. Jurisdiction over the res or property in litigation 5. Jurisdiction over the remedies E. DISTINGUISH: ERROR OF JURISDICTION AND ERROR OF JUDGMENT F. DISTINGUISH: JURISDICTION AND VENUE G. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON Page 10 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 A. CLASSIFICATION OF JURISDICTION Definition of Jurisdiction The power and authority of the court to hear, try, and decide a case. (Cuenca v. PCGG, G.R. No. 159104-05, 2007) It also includes the authority of the court to execute its decisions. The power to control the execution of the decision of the court is an essential aspect of jurisdiction. (Echegaray v. Secretary of Justice, G.R. 132601, Jan. 19, 1999) It is not the authority of the judge, but of the court. (ABC Davao v. Auto Supply, G.R. No. 113296, 1998) Four Concepts of Jurisdiction 1. Jurisdiction over the Subject Matter; 2. Jurisdiction over the Parties; 3. Jurisdiction over the Issues; and 4. Jurisdiction over the Res. (Boston Equity Resources, Inc. v. CA, G.R. No. 173946, Jun. 19, 2013). 1. DISTINGUISH: ORIGINAL AND APPELLATE See above discussion on Original vs. Appellate Jurisdiction. 2. DISTINGUISH: GENERAL AND SPECIAL See above discussion on General vs. Special Jurisdiction. 3. DISTINGUISH: EXCLUSIVE AND CONCURRENT EXCLUSIVE CONCURRENT Jurisdiction which precludes the idea of co-existence and refers to jurisdiction to the exclusion of others. Jurisdiction which is held by different courts to take cognizance of the same subject matter. (RIANO, 2019, p. 26) Where there is concurrence of jurisdiction, the court first taking cognizance of the case assumes jurisdiction to the exclusion of others. (RIANO, 2019, p. 27). B. DOCTRINES OF HIERARCHY OF COURTS AND CONTINUITY OF JURISDICTION (ADHERENCE OF JURISDICTION) Doctrine of Hierarchy of Courts See previous discussion on Hierarchy of Courts. Continuity of Jurisdiction/Adherence of Jurisdiction Once jurisdiction has attached, it cannot be ousted by subsequent happenings or events, although the event is of such character which would have prevented jurisdiction from attaching in the first instance. Once jurisdiction has been acquired by the court, it retains that jurisdiction until it finally disposes of the case (Baritua v. Mercader, G.R. No. 136048, 2001). General Rule: A law enacted during the pendency of a case which transfers jurisdiction to another court does not affect cases prior to its enactment. Exceptions: 1. When the new law expressly provides for retroactive application; 2. When the change of jurisdiction is curative in character (Vda. de Ballesteros v. Rural Bank of Canaman, G.R. No. 176250, 2010). Applications of the Doctrine 1. Jurisdiction of the court is not lost by the mere fact that a judge ceases to be in office (Victory Liner v. Belosillo, A.M. No. MTJ-00-1321, Mar. 10, 2004); 2. Retirement of the public official during the pendency of an administrative case does not render the case moot and academic (Office of the Ombudsman v. Dechaves, G.R. No. 176702, Nov. 13, 2013); 3. Finality of the judgment does not deprive the court of its jurisdiction over the case, as it retains the jurisdiction to enforce and execute Page 11 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 it. What is lost is the power to amend, modify, or alter the judgment. (Echegaray v. Secretary of Justice, G.R. 132601, Jan. 19, 1999). C. JURISDICTION OF VARIOUS PHILIPPINE COURTS REMEDIAL LAW legislation. (Atlas Fertilizer v. Navarro, G.R. No. 72074, 1987) The courts acquire jurisdiction over a case only upon payment of the prescribed docket fee. (Pacific Redhouse Corp v. EIB Securities, G.R. No. 184036, 2010) General Rule The jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. (Narra Nickel Mining v. Redmont, G.R. No. 195580, 2014) Exception Unless such statute provides for its retroactive application, such as where it is a curative Page 12 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 1. SUPREME COURT (a) ORIGINAL JURISDICTION i. Original and Exclusive (FERIA, 2013, p.167-168) Petitions for the issuance of writs of certiorari, prohibition and mandamus against: 1. Court of Appeals. 2. Commission on Elections. 3. Commission on Audit. 4. Sandiganbayan. 5. Court of Tax Appeals. ii. Original and Concurrent (FERIA, 2013, p.168-172) 1. With the CA 1. Petitions for the issuance of writs of certiorari, prohibition and mandamus against: a. National Labor Relations Commission (NLRC); b. Civil Service Commission (CSC); c. Quasi-Judicial Agencies; d. RTC and lower courts. 2. Petitions for the issuance of a writ of kalikasan. NOTE: This is subject to the doctrine of hierarchy of courts. 2. With the CA, SB 1. Petition for writ of amparo; 2. Petition for writ of habeas data. and RTC NOTE: For a petition for a writ of habeas data, the action may be filed with the Sandiganbayan when the action concerns public data files of government offices. 3. With the CA and RTC 1. Petitions for habeas corpus and quo warranto; 2. Petitions for the issuance of writs of certiorari, prohibition and mandamus against lower courts or bodies; 3. Petitions for the issuance of writ of continuing mandamus in environmental cases. 4. With the RTC Actions affecting ambassadors, other public ministers and consuls. NOTE: Under R.A. 10660, Sandiganbayan has jurisdiction in criminal cases involving “officials of the diplomatic service occupying the position of consul and higher” Page 13 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 (b) APPELLATE JURISDICTION 1. Appeal by Notice of In criminal cases where: 1. The CA renders a judgment imposing reclusion perpetua, life Appeal imprisonment, or a lesser penalty, the judgment is appealable to the Supreme Court by notice of appeal filed with the CA. (Sec. 13 (c), Rule 124, as amended; Dungo v. People, G.R. No. 209464, Jul. 1, 2015). 2. The Sandiganbayan decides a case in the exercise of its original jurisdiction; the notice of appeal shall be filed with the Sandiganbayan and served upon the adverse party. (Sec. 1(a), Rule XI, 2018 Revised Internal Rules of the Sandiganbayan). 2. Appeal by Certiorari In civil cases involving: / Petition for Review 1. Appeals from the Regional Trial Court, in the exercise of its original jurisdiction, involving pure questions of law; on Certiorari (Rule 45) 2. Appeals from the following, involving questions of law, fact, or both: a. Court of Appeals; b. Court of Tax Appeals, en banc; and c. Sandiganbayan (Sec. 1(a), Rule XI, 2018 Revised Internal Rules of the Sandiganbayan) 3. Appeals in the following cases involving questions of law, fact, or both: a. Petition for a writ of amparo (Sec. 19, The Rule on the Writ of Amparo); b. Petition for a writ of kalikasan (Sec. 16, The Rules of Procedure in Environmental Cases c. Petition for a writ of habeas data. (Sec. 19, The Rule on the Writ of Habeas Data) In criminal cases where: 1. The Court of Appeals renders a judgment imposing reclusion perpetua, life imprisonment, or a lesser penalty, and the appeal raises pure questions of law. (Dungo v. People, G.R. No. 209464, Jul. 1, 2015); 2. The Sandiganbayan decides a case in the exercise of its appellate jurisdiction, involving pure questions of law, fact or both. (Sec. 1(a), Rule XI, 2018 Revised Internal Rules of the Sandiganbayan). 3. Special Civil Action Decision, order or ruling of: of Certiorari within 1. Commission on Elections; 30 days (Rule 64) 2. Commission on Audit. 4. Appeal by In criminal cases: Automatic Review 1. Whenever the CA finds that the penalty of death should be imposed, the CA shall render judgment but refrain from making an entry of judgment and forthwith certify the case and elevate its entire record to the Supreme Court for review. (Sec. 13(a), Rule 124, as amended); 2. Where the judgment of the CA also imposes a lesser penalty for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more severe offense for which the penalty of death is imposed, and the accused appeals, the appeal shall be included Page 14 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 in the case certified for review to the Supreme Court. (Sec. 13(b), Rule 124, as amended); 3. Whenever the Sandiganbayan, in the exercise of its original jurisdiction, imposes the death penalty, the records of the case, together with the stenographic notes, shall be forwarded to the SC for automatic review and judgment. (Sec. 1(b), Rule XI, 2018 Revised Internal Rules of the Sandiganbayan). 2. COURT OF APPEALS (a) ORIGINAL JURISDICTION i. Original and Exclusive (FERIA, 2013, p.182-184) Actions for annulment of judgments of the RTC on the grounds of extrinsic fraud and lack of jurisdiction. ii. Original and Concurrent (FERIA, 2013, p.182-184) 1. With the SC 1. Petitions for the issuance of writs of certiorari, prohibition and mandamus against: a. NLRC; b. CSC; c. Quasi-Judicial Agencies; d. RTC and lower courts. 2. Petitions for the issuance of a writ of kalikasan. NOTE: This is subject to the doctrine of hierarchy of courts. 2. With the SC, SB, 1. Petition for writ of amparo; 2. Petition for writ of habeas data. and RTC NOTE: For a petition for a writ of habeas data, the action may be filed with the Sandiganbayan when the action concerns public data files of government offices. 3. With the SC and 1. Petitions for habeas corpus and quo warranto; 2. Petitions for the issuance of writs of certiorari, prohibition and mandamus RTC against lower courts or bodies; 3. Petitions for the issuance of writ of continuing mandamus in environmental cases. Page 15 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 (b) APPELLATE JURISDICTION (FERIA, 2013, p.184-189) i. Exclusive Appellate 1. Ordinary Appeal by Appeals from: Notice of Appeal or 1. RTC in the exercise of its original jurisdiction, except in all cases where Record on Appeal only questions of law are raised or involved, which are appealable to the SC by petition for review on certiorari in accordance with Rule 45; 2. RTC on constitutional and jurisdictional questions which involve questions of fact; 3. Family Courts. In criminal cases when: 1. RTC decides a case in the exercise of its original jurisdiction; and 2. RTC imposes penalty of reclusion perpetua or life imprisonment, or where lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which death, reclusion perpetua or life imprisonment is imposed, appeal shall be by notice of appeal to the CA. (Sec. 3 (a) & (c), Rule 122). 2. Appeal by Petition An appeal may be taken to the CA whether the appeal involves questions of for Review fact, mixed questions of fact and law, or questions of law, in the following cases: Regular 1. Appeals from RTC in the exercise of its appellate jurisdiction. Special 1. Appeals from CSC; 2. Appeals from Quasi-Judicial Agencies; 3. Securities and Exchange Commission; 4. Office of the President; 5. Land Registration Authority; 6. Social Security Commission; 7. Civil and Aeronautics Board; 8. Intellectual Property Office; 9. National Electrification Administration; 10. Energy Regulatory Commission; 11. National Telecommunications Commission; 12. Department of Agrarian Reform under RA 6657; 13. Government Service Insurance System; 14. Employees’ Compensation Commission; 15. Insurance Commission; 16. Philippine Atomic Energy Commission; 17. Board of Investments; 18. Construction Industry Arbitration Commission; 19. Voluntary Arbitrators authorized by law; 20. Ombudsman, in administrative disciplinary cases; Page 16 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 21. National Commission on Indigenous Peoples; From the judgments or final orders or resolutions of the CA, the aggrieved party may appeal by certiorari to the SC as provided in Rule 45. Judgments and final orders of the CTA en banc are now appealable to the SC through a petition for review under Rule 45, pursuant to RA 9282. 3. Appeal by Automatic If RTC imposes death penalty, no notice of appeal is necessary; CA will automatically review the judgment. (Sec. 3(d), Rule 122). Review 3. COURT OF TAX APPEALS (RA 9282) (A) EXCLUSIVE APPELLATE JURISDICTION (BY APPEAL): 1. Decisions from the COMMISSIONER OF INTERNAL REVENUE  in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue Code (NIRC) or other laws administered by the Bureau of Internal Revenue (BIR). 2. Inaction by the COMMISSIONER INTERNAL REVENUE  in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by the BIR, where the NIRC provides a specific period of action, in which case the inaction shall be deemed a denial. 3. Decisions, orders or resolutions of REGIONAL TRIAL COURTS  in local tax cases originally decided or resolved by them in the exercise of their original and appellate jurisdiction. 4. Decisions of the COMMISSIONER OF CUSTOMS  in cases involving liability for custom duties, fees or other money charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or other matters arising under the Customs Law or other laws administered by the Bureau of Customs. 5. Decisions of the CENTRAL BOARD OF ASSESSMENT APPEALS in the exercise of its appellate jurisdiction  over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals. 6. Decisions of the SECRETARY OF FINANCE  on customs cases elevated to him/her automatically for review from decisions of the Commissioner of Customs which are adverse to the Government under Section 2315 of the Tariff and Customs Code. 7. Decisions of the SECRETARY OF TRADE AND INDUSTRY  in the case of non-agricultural product, commodity or article; and 8. Decisions of the SECRETARY OF AGRICULTURE  in the case of agricultural product, commodity or article involving dumping and countervailing duties under Sections 301 and 302, respectively, of the Tariff and Customs Code and safeguard measures under the RA 8800, where either party may appeal the decision to impose or not to impose said duties. Page 17 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 (b) CRIMINAL CASES 1. Exclusive Original Criminal cases arising from violations of the: Jurisdiction 1. National Internal Revenue Code. 2. Tariff and Customs Code. 3. Other laws administered by the BIR or the Bureau of Customs. Provided, however, that offenses or felonies mentioned in this paragraph where the principal amount of taxes and fees, exclusive of charges and penalties, claimed in less than P1M or where there is no specified amount claimed shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability for taxes and penalties shall be at all times be simultaneously instituted with, and jointly determined in the same proceeding by the CTA, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action will be recognized. 2. Exclusive Appellate 1. Over appeals from the judgments, resolutions or orders of the RTC in tax Jurisdiction cases originally decided by them, in their respective territorial jurisdiction. 2. Over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided the MeTC, MTC and MCTC in their respective jurisdiction. (c) TAX COLLECTION CASES 1. Exclusive Original Cases involving final and executory assessment for taxes, fees, charges and penalties: Provided, however, that collection cases where the principal amount Jurisdiction of taxes and fees, exclusive of charges and penalties, claimed is less than P1M shall be tried by the proper MTC, MeTC and RTC. 2. Exclusive Appellate In tax collection cases: Jurisdiction 1. Over appeals from the judgments, resolutions or orders of the RTC in tax collection cases originally decided by them, in their respective territorial jurisdiction. 2. Over petitions for review of judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax collection cases originally decided the MeTC, MTC and MCTC in their respective jurisdiction. Page 18 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 4. SANDIGANBAYAN (P.D. 1606, as amended by R.A. 10660, promulgated April 16, 2015) (a) EXCLUSIVE ORIGINAL A. Violations of the following: 1. The Anti-Graft and Corrupt Practices Act (Republic Act No. 3019); 2. An Act Declaring Forfeiture in Favor of the State any Property Found to Have Been Unlawfully Acquired by any Public Officer or Employee and Providing for the Proceedings Therefor (Republic Act No. 1379); and 3. Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, which are: a. Direct Bribery; b. Indirect Bribery; c. Qualified Bribery; and d. Corruption of Public Officials Provided that one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: 1. Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Salary Grade ‘27’ and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: i. Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads: ii. City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; iii. Officials of the diplomatic service occupying the position of consul and higher; iv. Philippine army and air force colonels, naval captains, and all officers of higher rank; v. Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent and higher; vi. City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; vii. Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. 2. Members of Congress and officials thereof classified as Grade ‘27’ and higher under the Compensation and Position Classification Act of 1989; 3. Members of the judiciary without prejudice to the provisions of the Constitution; 4. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; and 5. All other national and local officials classified as Grade ‘27’ and higher under the Compensation and Position Classification Act of 1989. B. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in “A” above in relation to their office; and C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. Provided that the RTC of the judicial region other than where the official holds office shall have exclusive original jurisdiction where the information: 1. Does not allege any damage to the government or any bribery; or Page 19 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 2. Alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding P1,000,000. Furthermore, the proper RTC or MTC shall have jurisdiction in cases where: 1. None of the accused are occupying positions corresponding to Salary Grade ‘27’ or higher, as prescribed under the Compensation and Position Classification Act of 1989; or 2. Military and PNP officers mentioned above NOTE: In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. NOTE: Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized. NOTE: Where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned. D. Money Laundering cases committed by public officers and private persons, who are in conspiracy with such public officers, shall be under the jurisdiction of the Sandiganbayan. (Sec. 5, RA 9160, Anti Money Laundering Act of 2001). E. All prosecutions under the Anti-Plunder Law shall be within the original jurisdiction of the Sandiganbayan. (Sec. 3, RA 7080, An Act Defining and Penalizing the Crime of Plunder). F. Petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. Note that the jurisdiction over these petitions shall not be exclusive of the Supreme Court. (b) EXCLUSIVE APPELLATE The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction. 1. Appeal by Notice of Appeal In civil and criminal cases, appeal to the Sandiganbayan from a decision rendered by the RTC, in the exercise of its original jurisdiction, shall be by ordinary appeal (i.e., filing of notice of appeal with the RTC), under Rules 41 and 44, and Rules 122 and 124 of the Rules of Court. (Sec. 1, Rule XIII, 2018 Revised Internal Rules of the Sandiganbayan). 2. Appeal by Petition for Review In civil and criminal cases, appeal to the Sandiganbayan from a decision rendered by the RTC, in the exercise of its appellate Page 20 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 jurisdiction, shall be by petition for review under Rule 42 of the Rules of Court. (Sec. 2, Rule XIII, 2018 Revised Internal Rules of the Sandiganbayan). 5. REGIONAL TRIAL COURTS (a) ORIGINAL JURISDICTION i. Original and Exclusive 1. Civil Cases 1. Civil actions in which the subject of litigation is incapable of pecuniary estimation; 2. Civil actions which involve the title to, or possession of, REAL property, or any interest therein, where the assessed value of the property involved exceeds P20K, or P50K if in Metro Manila, except actions forcible entry and unlawful detainer which are cognizable by the MeTC, MTC, MCTC; 3. Actions in admiralty and maritime jurisdiction where the demand or claim exceeds P300K, or P400K if in Metro Manila; 4. Matters of probate, both testate and intestate, where the gross value of the estate exceeds P300K, or P400K if in Metro Manila; 5. Cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions, as RTC being a court of general jurisdiction; 6. Actions involving the contract of marriage and marital relations in areas where there are no established Family Courts; 7. Civil actions and special proceedings falling within the exclusive original jurisdiction of the Special Agrarian Courts as now provided by law; 8. Other cases in which the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs or the value of the property in controversy, exceeds P300K, or P400K if in Metro Manila. (RIANO, p. 139-140) IMPORTANT: If the claim for damages is the main cause of action, the amount thereof shall be considered in determining the jurisdiction of the court. 2. Criminal Cases Criminal cases not within the exclusive jurisdiction of any court, tribunal or body, such as the following: 1. Penalty provided by law exceeds 6 years imprisonment, irrespective of fine. 2. Under no. 1 above not falling under the original jurisdiction of the Sandiganbayan where none of the principal accused are occupying positions corresponding to salary grade “27” or higher, or military and PNP officers occupying the rank of superintendent or higher, or their equivalent; 3. Those officers falling under the jurisdiction of the Sandiganbayan but the related information: a. Does not allege any damage to the government or any bribery;or b. Alleges damages damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding P1,000,000. Page 21 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 NOTE: Subject to the rules promulgated by the Supreme Court, the cases falling under the jurisdiction of the Regional Trial Court shall be tried in the judicial region other than where the official holds office. 4. Only penalty provided by law is a fine exceeding P4K. 5. Violations of the: a. Comprehensive Dangerous Drugs Act of 2002. b. Anti-Violence against Women and their Children Act of 2004 (specifically, those involving violence against women and children as defined under Section 5). c. Comprehensive Agrarian Reform Law. d. Omnibus Election Code and other election laws. (FERIA, 2013, p.193-194) N.B.: Family Courts have exclusive original jurisdiction over criminal cases where one or more of the accused is below 18 years old, or when one or more of the victims is a minor at the time of the commission of the offense. However, if the victim has already died, such as in homicide cases, the regular courts can have jurisdiction. (People v Dela Torre-Yadao,G.R. Nos. 162144-54, 2012) 3. Other Cases 1. Actions for recognition and enforcement of an arbitration agreement or for vacation, setting aside, correction or modification of an arbitral award, and any application with a court for arbitration assistance and supervision. 2. Actions for determination of just compensation to land under the CARL. (FERIA, 2013, p.193-194 ii. Original and Concurrent (FERIA, 2013, p.195-196) 1. With the SC Actions affecting ambassadors and other public ministers and consuls. 2. With the SC and CA 1. Issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and injunction which may be enforced in any part of their respective regions. 2. Petition for the issuance of writ of continuing mandamus in environmental cases. 3. With the SC, CA and SB 1. Petition for writ of amparo. 2. Petition for writ of habeas data. 4. With the Claims not exceeding P100K. This is applicable if subject of the action is incapable Insurance of pecuniary estimation; otherwise, jurisdiction is concurrent with the MeTC. Commissioner (b) APPELLATE JURISDICTION (FERIA, 2013, p.196) Cases decided by the MeTC, MTC, MTCC and MCTC in their respective territorial Jurisdiction. (c) SPECIAL JURISDICTION (FERIA, 2013, p.197) Page 22 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 The SC may designate certain branches of the RTC to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and agencies, and/or such other special cases as the SC may determine in the interest of a speedy and efficient administration of justice. 6. FAMILY COURTS (FERIA, 2013, p.206-208) ORIGINAL AND EXCLUSIVE JURISDICTION 1. Criminal cases where one or more of the accused is 15≤x<18 years old, or where one or more of the victims is a minor at the time of the commission of the offense: provided, that if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to the Child and Youth Welfare Code (PD 603). 2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter. 3. Petitions for adoption of children and revocation thereof. 4. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership or gains 5. Petitions for support and/or acknowledgment. 6. Summary judicial proceedings brought under the provisions of the Family Code of the Philippines (E.O No. 209). 7. Petitions for declaration of status of children as abandoned, dependent or neglected children; petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under the Child and Youth Welfare Code (PD 603), Authorizing the Ministry of Social Services and Development to Take Protective Custody of Child Prostitutes and Sexually Exploited Children, and for Other Purposes (E.O. 56), and other related laws. 8. Petitions for constitution of the family home. 9. Cases against minors cognizable under the Comprehensive Dangerous Drugs Act of 2005. 10. Violations of Special Protection of Children against Child Abuse, Exploitation and Discrimination Act (RA 7610), as amended by RA 7658 and RA 9231. 11. Cases of domestic violence against: 1. Women – which are acts of gender-based violence that results, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman’s personhood, integrity and freedom of movement; and 2. Children – which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development. If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. If any question involving any of the above matters should arise as an incident in any case pending in the regular courts, said incident shall be determined in that court. Page 23 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 7. MUNICIPAL TRIAL COURTS – MeTC, MTC and MCTC (FERIA, 2013, p.197-204) (a) ORIGINAL JURISDICTION i. Original and Exclusive 1. Civil cases 1. Civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate or amount of demand does NOT exceed P300K, or P400K if in Metro Manila, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs, the amount of which must be specifically alleged. However, interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs shall be included in the determination of the filing fees. 2. Admiralty and maritime cases where the demand or claim does NOT exceed P300K, or P400K if in Metro Manila. 3. Forcible entry and unlawful detainer regardless of value of property involved, with jurisdiction to determine the issue of ownership only to resolve the issue of possession. 4. Civil actions which involve title to, or possession of, REAL property, or any interest therein where the assessed value of the property or interest therein does NOT exceed P20K, or P50K if in Metro Manila, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs. In cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots. 5. Inclusion and exclusion of voters. Where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action irrespective of whether the causes of action arose out of the same or different transactions. 2. Crimin al cases EXCEPT in cases falling within the exclusive original jurisdiction of the RTC or SB— 1. Violations of city or municipal ordinances committed within their respective territorial jurisdiction. 2. Offenses punishable with imprisonment NOT exceeding 6 years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof. 3. Offenses under (2) above include those NOT falling within the exclusive original jurisdiction of the SB where none of the accused is occupying positions corresponding to salary grade ‘27’ or higher. 4. Offenses involving damage to property through criminal negligence. 5. In cases where the only penalty provided by law is a fine of not more than P4K. Page 24 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 (b) DELEGATED JURISDICTION Cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots where the value of which does NOT exceed P100K, such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration of the real property. These cases are assigned and not automatically delegated. (c) SPECIAL JURISDICTION In the absence of all the RTC Judges in a province of city— 1. Hear and decide petitions for writ of habeas corpus. 2. Hear and decide applications for bail in criminal cases. (d) SUMMARY PROCEDURE 1.Civil cases 1. All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, but if attorney’s fees are awarded, the same shall not exceed P20,000.00; and 2. All other cases, except probate proceedings, where the total amount of the plaintiff’s claim does not exceed one hundred thousand pesos (P100,000) or two hundred thousand pesos (P200,000) in Metropolitan Manila, exclusive of interests and costs. (Sec. 1(A), Revised Rule on Summary Procedure, as amended) 2. Criminal 1. Traffic violations. cases 2. Rental law violations. 3. Violations of city or municipal ordinances. 4. Violations of B.P. 22 (Bouncing Checks Law). 5. All other cases where penalty does NOT exceed 6 months and/or fine of P1K, irrespective of other imposable penalties, accessory or otherwise. 6. In offenses involving damage to property through criminal negligence, where the imposable fine does not exceed P10K. Page 25 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 D. ASPECTS OF JURISDICTION 1. JURISDICTION OVER THE PARTIES Jurisdiction over the parties is the power of a court to render personal judgment or to subject the parties in a particular action to the judgment or other rulings rendered in an action. (Villagracia v. Fifth Shari’a Court, G.R. No. 188832, 2014) When Jurisdiction Over Defendant is Required Jurisdiction over the person of the defendant is required only in an action in personam. It is not required in an action in rem or quasi in rem. (RIANO, 2019, p. 88). 2. JURISDICTION OVER THE SUBJECT MATTER a. How jurisdiction over the plaintiff is acquired a. Meaning of jurisdiction over the subject matter Jurisdiction over the plaintiff is acquired by his filing of the complaint, petition, or other initiatory pleading. (Davao Light & Power v. CA, G.R. No. 93262, 1991) Jurisdiction over the subject matter is the power to deal with the general subject involved in the action. It refers to jurisdiction of the class of cases to which the particular case belongs. (Allied Domecq v. Villon, G.R. No. 156264, 2004). Effect of Unauthorized Complaint An unauthorized complaint (i.e., one which is filed by a person not authorized by the plaintiff) does not produce any legal effect. Hence, the court should dismiss the complaint on the ground that it has no jurisdiction over the complaint and the plaintiff. (Palmiano-Salvador v. Angeles, G.R. No. 171219, 2012) b. How jurisdiction over the defendant is acquired Jurisdiction over the defendant is acquired either by: 1. A valid service of summons upon him; or 2. His voluntary submission to the court’s authority. (Macaset v. Co, G.R. No. 156759, Jun. 5, 2013) As a general rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. (David v. Agbay, G.R. No. 199113, 2015) As an exception, a motion to dismiss raising the ground of lack of jurisdiction over the person of the defendant is not deemed voluntary appearance. Under the 2019 Amendments, if a movant raises other grounds aside from lack of jurisdiction over the person of the defendant, this shall be deemed as voluntary appearance. (Sec. 23, Rule 14). It refers to the power of a particular court to hear the type of case that is then before it. (RIANO, 2019, p. 61) Meaning of Subject Matter The subject matter is the item with respect to which the controversy has arisen, or concerning which the wrong has been done, and it is ordinarily the right, the thing, or the contract under dispute. (Spouses Ley v. Union Bank of the Philippines, G.R. No. 167961, Apr. 3, 2007). b. Distinguish: jurisdiction and exercise of jurisdiction JURISDICTION EXERCISE OF JURISDICTION The authority to hear The exercise of such and decide a case. power or authority. It constitutes the actual It constitutes the acts power and authority of the court in itself. accordance with such jurisdiction, renders a decision on the case, and executes its decision. (RIANO, 2019, p.63) Page 26 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 c. How jurisdiction is conferred and determined How Jurisdiction is Conferred Jurisdiction over the subject matter is conferred only by the Constitution or the law. It cannot be contingent upon the action or inaction of the court. (Republic v. Bantigue, G.R. No. 162322, 2012). Jurisdiction is conferred by substantive law, and not by a procedural law. (Malaloan v. Court of Appeals, G.R. No. 104879, May 6, 1994). Consequences of Jurisdiction Being Conferred by Law Since jurisdiction is conferred only by the Constitution or by law: 1. It does not depend on the regularity of its exercise by a court or tribunal. (Salvador v. Patricia, Inc. G.R. No. 195834, Nov. 9, 2016); 2. It cannot be acquired, waived, enlarged, or diminished by any act or omission of the parties. (Department of Agrarian Reform v. Republic, G.R. No. 160560, Jul. 29, 2005); 3. It cannot be conferred by acquiescence of the courts. (Knights of Rizal v. DMCI Homes, Inc., G.R. No. 213948, Apr. 25, 2017); 4. It cannot be conferred by administrative policy of the court. (Cudia v. Court of Appeals, G.R. No. 110315, Jan. 16, 1998) 5. It cannot be presumed or implied, but it must appear clearly from the law or it will not be held to exist, but it may be conferred on a court or tribunal by necessary implication as well as by express terms. (Salvador v. Patricia, Inc. G.R. No. 195834, Nov. 9, 2016); Exceptions: 1. Estoppel by laches (Tijam v. Sibonghanoy, G.R. No. L-21450, 1968); 2. Estoppel by deed or estoppel in pais (Soliven v. Fastforms, G.R. No. 139031, 2004) Effect of Lack of Jurisdiction Over The Subject Matter of the Action Any judgment, order or resolution issued without jurisdiction is void and cannot be given any effect. This rule applies even if the issue on jurisdiction was raised for the first time on appeal or even after final judgment. (Magno v. People, G.R. No. 171542, 2011) REMEDIAL LAW If the court has no jurisdiction, but the case was tried and decided upon the theory that it has jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel. (Lozon v. NLRC, G.R. No. 107660, Jan. 2, 1995) How Jurisdiction is Determined Jurisdiction over the subject matter is determined by the allegations of the complaint and the character of the relief sought. (Heirs of Alfredo Bautista v. Lindo, G.R. No. 208232, 2014) Determining Jurisdiction From the Allegations of the Complaint It is not the title of the pleading but its allegations that must control. (Jordan v. Grandeur Security, G.R. No. 206716, 2014) The general rule is that jurisdiction is based on the allegations in the initiatory pleading. The defenses in the answer are deemed irrelevant and immaterial in its determination. (De la Cruz v. Court of Appeals, G.R. No. 139442, December 6, 2006) Thus, if by the averments of the complaint, the court has jurisdiction, it does not lose that jurisdiction just because the defendant makes a contrary allegation in his motion or answer or because the court believes that the plaintiff’s claims are ridiculous and therefore, untrue. (Tomas Claudio Memorial College, Inc., v. Court of Appeals, G.R. No. 124262, 1999) Exception: In an ejectment case filed with the MTC, where it has been determined that tenancy is the real issue, the court should dismiss the case for lack of jurisdiction. (Hilado v. Chavez, G.R. 134742, Sep. 22, 2004) Determining Jurisdiction From the Primary Relief or Ultimate Objective of the Complaint 1. A case denominated as one for cancellation of several deeds of sale, transfer certificates of title, and the joint venture agreement was deemed to be a real action because the allegations therein actually sought for the Page 27 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 recovery of real properties. (Serrano v. Delica, G.R. 136325, Jul. 28, 2005); 2. A complaint was filed for reconveyance of real property with declaration of nullity of original certificate of title, alleging that the title had been obtained by fraud. In determining jurisdiction, the Court found that the primary relief was to recover real property. The case did not involve a subject matter incapable of pecuniary estimation. (Maslag v. Monzon, G.R. No. 174908, Jun. 17, 2013); 3. A complaint to redeem a land subject of a free patent is a civil action incapable of pecuniary estimation. Jurisdiction of the court is determined by the allegations in the complaint and the character of the relief sought. His cause of action being one for specific performance, it is incapable of pecuniary estimation and cognizable by the RTC. (Heirs of Bautista v. Lindo, G.R. No. 208232, 2014). Note: If the objective of the action to recover property, title or interest therein – the action is based on the assessed value of the property. (See discussion under Jurisdictional Amounts for Real Actions) Determining Jurisdictional Amounts for Personal Actions In personal actions, the jurisdictional amount refers to the value of the personal property, estate, or amount of the demand involved in the civil action or proceedings. (Cabrera v. Francisco, G.R. No. 172293) The jurisdictional amount does not include: 1. Interest; 2. Damages of whatever kind; 3. Attorney’s fees; 4. Litigation expenses; and 5. Costs. Nevertheless, the above items are included in determining filing fees. (Sec. 33(1), B.P. 129, as amended by RA No, 7691) The exclusion of the term damages of whatever kind in determining the jurisdictional amount under Section 19 (8) and Section 33 (1) of B.P. Blg. 129, as amended by R.A. No. 7691, applies to cases where the damages are merely incidental to or a REMEDIAL LAW consequence of the main cause of action. However, in cases where the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court. (Sante v. Claravall, G.R. No. 173915, 2010). Totality Rule Where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the jurisdictional amount of the demands shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions. (B.P. Blg. 129, Sec. 33[1]; Pantranco North Express v. Standard Insurance, G.R. No. 140746, 2005). The totality rule presupposes that the various claims of the same or different parties are allowed to be embodied in the same complaint or that the different causes of action which are joined accrue in favor of the same plaintiffs or against the same defendants and that no misjoinder of the parties are involved. (RIANO, 2019, p. 115) Determining Jurisdictional Amounts for Real Actions The basis for jurisdiction in real actions is the assessed value of the real property involved as alleged in the complaint. (Salvador v. Patricia, Inc. G.R. No. 195834, Nov. 9, 2016) With the modifications introduced by R.A. No. 7691 in 1994, the jurisdiction of the first level courts has been expanded to include jurisdiction over other real actions where the assessed value does not exceed P20,000, or P50,000 where the action is filed in Metro Manila. The first level courts thus have exclusive original jurisdiction over accion publiciana and accion reinvindicatoria where the assessed value of the real property does not exceed the aforestated amounts. Accordingly, the jurisdictional element is the assessed value of the property. (Barrera v. Legaspi, G.R. No. 174346, 2008) The assessed value must be alleged in the complaint to determine which court has jurisdiction Page 28 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 over the action. (Heirs of Julao v. Spouses de Jesus, G.R. No. 176020, 2014). General Rule: If the assessed value is not alleged in the complaint, the action should be dismissed for lack of jurisdiction, for the trial court is not afforded the means of determining from the allegations of the pleading whether jurisdiction over the subject matter pertains to it or to another court. (Cabling v. Dangcalan, G.R. No. 187696, Jun. 15, 2016) Exception: The non-inclusion of the assessed value is not fatal if attached to the complaint is a tax declaration showing the assessed value of the property. Annexes to the complaint have been held to be part of, and should be considered together with the complaint in determining the jurisdiction of the court. (Banko Sentral ng Pilipinas v. Legaspi, G.R. No. 205966, Mar. 2, 2016). d. Distinguish: doctrine of primary jurisdiction and doctrine of exhaustion of administrative remedies Doctrine of Primary Jurisdiction The doctrine of primary jurisdiction precludes the courts from resolving a controversy over which jurisdiction has initially been lodged in an administrative body of special competence. (See also Sta. Ana v. Carpo, GR No. 164340, 2008) Courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of fact. (Paloma v. Mora, G.R. No. 157783, 2005) The practice is to refer specialized disputes to administrative agencies of specialized competence and the courts will not determine a controversy prior to the resolution of the question by the administrative tribunal (Fabia v. Court of Appeals, G.R. No. 132684, 2002). Exhaustion of Administrative Remedies General Rule: If a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before resort to the courts. Exception: when the proceeding before the administrative agency is merely investigative, as opposed to adjudicative. (Republic v. Transunion Corp, G.R. No. 191590, 2014). Effect of Failure to Observe Exhaustion of Administrative Remedies Failure to observe the doctrine of exhaustion of administrative remedies does not affect the jurisdiction of the Court. We have repeatedly stressed this in a long line of decisions. The only effect of non-compliance with this rule is that it will deprive the complainant of a cause of action (i.e., failure to comply with a condition precedent), which is an affirmative defense. If not invoked at the proper time, this ground is deemed waived and the court can take cognizance of the case and try it. (Republic v. Sandiganbayan, G.R. No. 112708-09, 1996) The law’s intendment was to grant jurisdiction over the enforcement of settlement/arbitration awards to the city or municipal courts the regardless of the amount. (Sebastian v. Lagmay, G.R. No. 164594, 2015) Doctrine of Primary Jurisdiction vs. Doctrine of Exhaustion of Administrative Remedies PRIMARY JURISDICTION Precludes the courts from resolving a controversy over which jurisdiction has been lodged in an administrative body of special competence. EXHAUSTION OF ADMINISTRATIVE REMEDIES Available remedy before an administrative body must first be sought before bringing an action in court Rationale is that some Rationale is the controversies demand agency should be Page 29 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 the exercise of sound administrative discretion requiring the special knowledge, experience, and services of the tribunal. given an opportunity to correct the errors, if any, of its subordinates. Involves a situation where both the court and administrative agency have jurisdiction to pass upon the question. Involves a situation where the remedy is cognizable at first instance by an administrative agency prior to judicial review. Applies to a particular Applies to case brought as an administrative original matter. remedies in the nature of a review. Its effect is to suspend judicial process pending referral of such issues to the administrative agencies. Its effect is to withhold judicial interference until the administrative process has run its course. (DE LEON, Administrative Law, 2016 ed., p.423424; RIANO, 2019, p. 76-77;) e. Doctrine of adherence of jurisdiction (continuity of jurisdiction) Doctrine of Adherence of Jurisdiction or Continuity of Jurisdiction See prior discussion on Doctrine of Continuity/Adherence of Jurisdiction. f. Objections to jurisdiction over subject matter The earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before the filing or service of an answer. Failure to raise such objection shall NOT to be deemed as a waiver. (Sec. 1, Rule 9) Similarly, lack of jurisdiction over the subject matter may also be raised as an affirmative defense. (Sec. 5, Rule 6) Thus, the prevailing rule is that jurisdiction over the subject matter may be raised at ANY stage of the REMEDIAL LAW proceedings, even for the first time on appeal (Calimlim v. Ramirez, G.R. No. L-34362, 1982). Courts may motu propio take cognizance of the issue even if not raised by the parties themselves (Asia International Auctioneers v. Parayno, G.R. No. 163445, 2007). When the court dismisses the complaint based on such ground, it cannot refer or forward the case to another court with the proper jurisdiction. This is because jurisdiction over the subject is a “matter of law” and “may not be conferred by consent or agreement of the parties.” (Villagracia v. Fifth Shari’a District Court, G.R. No. 188832, 2014) g. Effects of estoppel on objections to jurisdiction While jurisdiction over the subject matter may be raised at any stage of the proceedings, a party may still be barred from raising it on the ground of estoppel or laches. (Tijam v. Sibonghanoy, G.R. No. L-21450, 1968). The general rule is that the issue of jurisdiction may be raised at any stage of the proceedings, even on appeal, and is not lost by waiver or by estoppel. Estoppel by laches, to bar a litigant from asserting the court’s absence or lack of jurisdiction, only supervenes in exceptional cases similar to the factual milieu of Tijam v. Sibonghanoy. The fact that a person attempts to invoke unauthorized jurisdiction of a court does not estop him from thereafter challenging its jurisdiction over the subject matter, since such jurisdiction must arise by law and not by mere consent of the parties. (Figueroa v. People, G.R. No. 147406, 2008) Courts are not only courts of law but also of equity. Thus, where the respondent did not vigorously question the jurisdiction of the court and instead actively participated for ten years, a motion to dismiss based on lack of jurisdiction would render the effort, time and expenses of the parties for naught. (Bernardo v. Heirs of Villegas, G.R. No. 183357, 2010) If the lower court had jurisdiction, and the case was heard and decided upon a given theory, for Page 30 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 instance, that the court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position that the lower court had jurisdiction. (Cudiamat v. Batangas Savings, G.R. No. 182403, 2010). REMEDIAL LAW 4. JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION Definition; How Acquired Jurisdiction over the res refers to the court’s jurisdiction over the thing or property which is the subject of the action. (RIANO, 2019, p. 95) 3. JURISDICTION OVER THE ISSUES Jurisdiction over the issues refers to the power of the court to try and decide the issues raised in the pleadings of the parties. (Reyes v. Diaz, G.R. No. L-48754, 1941) An ISSUE is a disputed point or question to which parties to an action have narrowed down their several allegations and upon which they are desirous of obtaining a decision. (RIANO, 2019, p. 92) With respect to an issue raised by the pleadings, an issue arises because the material allegations of a claiming party are specifically denied by the defending party. (Id.) How Conferred and Determined: General Rule: It is conferred and determined by the pleadings of the parties that present the issues to be tried and determined whether or not the issues are of fact or of law. (Id.) Exceptions: It may be conferred: 1. By stipulation of the parties, as when in the pretrial, the parties enter into stipulations of facts and documents or enter into an agreement simplifying the issues of the case. (Sec. 2 (b), Rule 18); 2. By express or implied consent of the parties, when issues not raised by the pleadings are tried, such issues shall be treated in all respects as if they had been raised in the pleadings. (Sec. 5, Rule 10) Effect of No Issue in a Case It is proper for the court to render judgment on the pleadings if the answer fails to tender an issue, except in actions for declaration of nullity of annulment of marriage or legal separation. (Sec. 1, Rule 34). Jurisdiction over the res or property in litigation is acquired either by: 1. Actual or constructive seizure of the property under legal process, whereby it is brought into the custody of the law; or 2. As a result of the institution of legal proceedings, in which the power of the court is recognized and made effective (Biaco v. Philippine Countryside Rural Bank, G.R. No. 161417, 2007). If the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not required. What is required is jurisdiction over the res, although summons must be served upon the defendant in order to satisfy the requirements of due process (Gomez v. CA, G.R. No. 127692, 2004) In cases where jurisdiction over the person of a defendant cannot be acquired, the preliminary seizure is to be considered necessary in order to confer jurisdiction upon the court. In this case the lien on the property is acquired by the seizure; and the purpose of the proceedings is to subject the property to that lien. (El Banco Español-Filipino v. Palanca, G.R. No. L-11390, Mar. 26, 1918) In this instance, the action is converted from one in personam to one in rem. (Villareal v. CA, G.R. No. 107314, 1998.) 5. JURISDICTION OVER THE REMEDIES Fundamental is the rule that the provisions of the law and the rules concerning the manner and period of appeal are mandatory and jurisdictional requirements; hence, cannot simply be discounted under the guise of liberal construction.(Zosa v. Consilium, Inc., G.R. No. 196765, Sep. 19, 2018). Post-judgment remedies, such as an appeal, is neither a natural right nor is a component of due process. It is a mere statutory privilege and may Page 31 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 be exercised only in the manner and in accordance with the provisions of the law. (People v. Hilario, G.R. No. 210610, Jan. 11, 2018) Establishes a relation Establishes a relation between plaintiff and between the court and defendant, or the subject matter petitioner and respondent E. DISTINGUISH: ERROR OF JURISDICTION VS. ERROR OF JUDGMENT May be conferred by Fixed by law and the act or agreement cannot be conferred of the parties. by agreement of the parties ERROR OF JURISDICTION ERROR OF JUDGMENT Occurs when the court exercises a jurisdiction not conferred upon it by law or when a court or tribunal acts in excess of its jurisdiction or with grave abuse of its discretion. Occurs when a court or tribunal clothed with jurisdiction commits mistakes in the appreciation of the facts and evidence leading to an erroneous judgment. Correctible certiorari by Correctible by appeal The venue, being improperly laid, is not a ground for a motion to dismiss, but can be raised as an affirmative defense. (Sec. 12, Rule 8). Lack of jurisdiction over the subject matter is both a ground for a motion to dismiss and an affirmative defense. (Sec. 5 (b), Rule 6; Sec. 12, Rule 15). May be waived only in Cannot be waived. civil cases. In criminal cases, venue is jurisdictional. (RIANO, 2019, p. 163-164) (RIANO, 2019, p.64-65) F. JURISDICTION VS. VENUE VENUE is the place, or the geographical area where an action is to be filed and tried. (Manila Railroad Company v. Attorney General, G.R. No. L-6287, 1911) JURISDICTION is the power and authority of the tribunal to hear, try and decide a case. (Veneracion v. Mancilla, G.R. No. 158238, 2006) VENUE JURISDICTION The place where the The authority to hear case is to be heard or and determine a case tried (e.g., Regional Trial Court of Makati City or Quezon City) A matter of procedural A matter law substantive law of G. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY CONCILIATION RULE ON SMALL CLAIMS Scope and Applicability of Rules for Small Claims Cases The Rules of Procedure for Small Claims Cases shall govern the procedure in the Metropolitan Trial Courts (MeTCs), Municipal Trial Courts in Cities (MTCCs), Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) involving all actions that are purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money. The claims or demands may be: 1. For money owed under a contract of lease, loan, services, sale, or mortgage; 2. For liquidated damages arising from contracts; 3. Enforcement of a barangay amicable settlement; or Page 32 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 4. Arbitration award involving a money claim covered by this Rule pursuant to the Local Government Code. (Sec. 5, Revised Rules of Procedure for Small Claims Cases, as amended) These Rules shall govern the procedure in actions before the MTCs for payment of money where the value of claim does not exceed the jurisdictional amount of P400,000.00 for the MeTCs and P300,000.00 for the MTCCs, MTCs, and MCTCs, exclusive of interest and cost. (Sec. 2, Revised Rules of Procedure for Small Claims Cases, as amended) Venue For small claims cases, the regular rules of venue shall apply, at the election of the plaintiff, in the MeTC, MTCC, MTC, and MCTC: 1. Where the plaintiff resides; 2. Where the defendant resides; or 3. Where he may be found, in the case of a nonresident defendant. However, if the plaintiff is engaged in the business of lending, banking and similar activities, in the city where the defendant resides, if the plaintiff has a branch in that city. (Sec. 7, Revised Rules of Procedure for Small Claims Cases, as amended) KATARUNGANG PAMBARANGAY (A.C. No. 14-93) General Rule: ALL disputes between individuals/natural persons are subject to barangay conciliation pursuant to the Revised Katarungang Pambarangay Law and prior recourse thereto is a pre-condition before filing a complaint in court or any government offices is allowed. There must have been confrontation between the parties before the lupon chairman or pangkat and a showing that there was no settlement reached or that it was repudiated by the parties before a complaint, petition, action or proceeding may be filed or instituted in court or in a government office for adjudication. REMEDIAL LAW Exceptions: 1. Where one party is the government, or any subdivision or instrumentality thereof; 2. Where one party is a public officer or employee and the dispute relates to the performance of his official functions; 3. Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon; 4. Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents [Sec. 1, Rule VI, Katarungang Pambarangay Rules]; 5. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other, and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon; 6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one [1] year or a fine of over P5,000.00. 7. Offenses where there is no private offended party; 8. Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically the following: a) Criminal cases where accused is under police custody or detention [Sec. 412 (b) (1), Revised Katarungang Pambarangay Law]; b) Petitions for habeas corpus by a person illegally deprived of his rightful custody over another or a person illegally deprived of or on acting in his behalf; c) Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; d) Actions which may be barred by the Statute of Limitations. 9. Any class of disputes, which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice; 10. Where the dispute arises from the Comprehensive Agrarian Reform Law (Secs. 46 & 47, R. A. 6657); Page 33 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 11. Labor disputes or controversies arising from employer-employee relations (Montoya v. Escayo, et al., G.R. No. 82211-12, 1989); (Art. 226, Labor Code) 12. Actions to annul judgment upon a compromise that may be filed directly in court (Sanchez v. Tupaz, G.R. No. 76690, 1988) A case filed in court without compliance with prior barangay conciliation, which is a pre-condition for formal adjudication, may be dismissed upon motion of defendant/s on the ground of failure to comply with a condition precedent. The nonreferral of a case for barangay conciliation is not jurisdictional in nature, thus it necessitates a motion to dismiss before it may be considered by the Court. (Royales v. Intermediate Appellate Court, G.R. No. L-65072, Jan. 31, 1984). A prior recourse to barangay conciliation is a precondition before filing a complaint in court or any government offices. Non-compliance with the said condition precedent could affect the sufficiency of the plaintiff’s cause of action and make his complaint vulnerable to dismissal on ground of lack of cause of action or prematurity; but the same would not prevent a court of competent jurisdiction from exercising its power of adjudication over the case before it, where the defendants failed to object to such exercise of jurisdiction. (Sps. Santos v. Sps. Lumbao, G.R. No. 169129, 2007) Interruption of Prescriptive Period: While the dispute under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing of the complaint with the Punong Barangay. Agreement to Arbitrate: The parties may, at any stage of the proceedings, agree in writing to have the matter in dispute decided by arbitration by the Lupon Chairman or Pangkat. RULE ON SUMMARY PROCEDURE The rule shall govern the summary procedure in the MeTCs, MTCCs, MTCs, and MCTCs. REMEDIAL LAW Scope and Applicability of Rules on Summary Procedure for Civil Cases 1. All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, but if attorney’s fees are awarded, the same shall not exceed P20,000.00; and 2. All other cases, except probate proceedings, where the total amount of the plaintiff’s claim does not P100,000 or P200,000 in Metropolitan Manila, exclusive of interests and costs. (Sec. 1(A), Revised Rule on Summary Procedure, as amended) In small claims cases, the following amounts are excluded in determining jurisdictional amount: 1. Interest; 2. Costs. (Sec. 1(A)(2), Revised Rule on Summary Procedure, as amended) Scope and Applicability of Rules on Summary Procedure for Criminal Cases 1. Traffic violations. 2. Rental law violations. 3. Violations of city or municipal ordinances. 4. Violations of B.P. 22 (Bouncing Checks Law). 5. All other cases where penalty does NOT exceed 6 months and/or fine of P1K, irrespective of other imposable penalties, accessory or otherwise. 6. In offenses involving damage to property through criminal negligence, where the imposable fine does not exceed P10K. (Sec. 1 (B), Revised Rule on Summary Procedure, as amended) Exception: The Rule on Summary Proceedings shall not apply to a civil case where the plaintiff’s cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure. Nor is it applicable to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. (Sec. 1, Revised Rule on Summary Procedure, as amended) Page 34 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW Appeal: The judgment or final order shall be appealable to the appropriate Regional Trial Court. The decision of the Regional Trial Court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to further appeal that may be taken therefrom. (Sec. 22, Revised Rule on Summary Procedure, as amended) H. HOW JURISDICTION IS DETERMINED See prior discussion on How Jurisdiction is Conferred and Determined. ————- end of topic ————- Page 35 of 711 CIVIL PROCEDURE Remedial Law ATENEO CENTRAL BAR OPERATIONS 2020/21 III. CIVIL PROCEDURE TOPIC OUTLINE UNDER THE SYLLABUS: III. CIVIL PROCEDURE A. GENERAL PROVISIONS B. ACTIONS 1. Meaning of ordinary civil actions 2. Meaning of special civil actions 3. Meaning of criminal actions 4. Distinguish: civil actions and special proceedings 5. Personal actions and real actions 6. Local and transitory actions 7. Actions in rem, in personam and quasi in rem C. CAUSE OF ACTION 1. Meaning of cause of action 2. Distinguish: right of action and cause of action 3. Distinguish: failure to state a cause of action and lack of cause of action 4. Test of the sufficiency of a cause of action 5. Splitting a single cause of action and its effects 6. Joinder and misjoinder of causes of action D. PARTIES TO CIVIL ACTIONS 1. Real parties in interest; indispensable parties; representatives as parties; necessary parties; indigent parties; alternative defendants 2. Compulsory and permissive joinder of parties 3. Misjoinder and non-joinder of parties 4. Class suit 5. Suits against entities without juridical personality 6. Effect of death of party litigant E. VENUE 1. Venue of real actions 2. Venue of personal actions 3. Venue of actions against non-residents 4. When the rules on venue do not apply 5. Effects of stipulations on venue F. PLEADINGS 1. Kinds of pleadings and when they should be filed a. Complaint b. Answer i. Negative defenses ii. Negative pregnant c. Counterclaims i. Compulsory counterclaim REMEDIAL LAW ii. Permissive counterclaim iii. Effect on the counterclaim when the complaint is dismissed d. Cross-claims e. Third (fourth, etc.) party complaints f. Complaint-in-intervention g. Reply h. Extensions of time to file 2. Pleadings allowed in small claims cases and cases covered by the Rules on Summary Procedure 3. Parts and contents of a pleading a. Caption b. Signature and address c. Verification d. Certification against forum shopping e. Contents of a pleading 4. Allegations in a pleading a. Manner of making allegations i. Condition precedent ii. Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts b. Pleading an actionable document c. Specific denials i. Effect of failure to make specific denials ii. When a specific denial requires an oath d. Affirmative defenses 5. Effect of failure to plead a. Failure to plead defenses and objections b. Failure to plead a compulsory counterclaim and cross-claim 6. Default a. When a declaration of default is proper b. Effect of an order of default c. Relief from an order of default d. Effect of a partial default e. Extent of relief f. Actions where default are not allowed 7. Filing and service of pleadings a. Payment of docket fees b. Distinguish: filing and service of pleadings c. Periods of filing of pleadings d. Manner of filing i. Personal filing ii. Filing by registered mail iii. Filing by accredited courier iv. Transmittal by electronic mail or other electronic means Page 37 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 e. Modes of service i. Personal service ii. Service by registered mail iii. Service by accredited courier iv. Service by electronic mail, facsimile transmission, or other electronic means v. Service as provided for in international conventions f. Service of judgments, final orders or resolutions; service of court-issued orders and other documents g. Conventional service or filing of orders, pleadings, and other documents h. When service is deemed complete i. Proof of filing and service 8. Amendment a. Amendment as a matter of right b. Amendments by leave of court c. Formal amendment d. Effect of amended pleading e. Supplemental pleadings G. SUMMONS 1. Nature and purpose of summons a. In relation to actions in personam, in rem and quasi in rem b. When summons are issued c. Contents of summons d. Duty of counsel e. Return 2. Voluntary appearance 3. Who may serve summons 4. Personal service 5. Substituted service 6. Constructive service a. Service upon a defendant where his identity is unknown or where his whereabouts are unknown b. Service upon residents temporarily outside the Philippines 7. Extraterritorial service, when allowed 8. Service upon prisoners and minors; upon spouses 9. Service upon domestic or foreign private juridical entities 10. Proof of service H. MOTIONS 1. Motions in general a. Definition of a motion b. Distinguish: motions and pleadings c. Contents and form of motions d. Litigious and non-litigious motions; when notice of hearing necessary REMEDIAL LAW e. Omnibus motion rule f. Prohibited motions 2. Motions for Bill of Particulars a. Purpose and when applied for b. Actions of the court c. Compliance with the order and effect of noncompliance d. Effect on the period to file a responsive pleading I. DISMISSAL OF ACTIONS 1. Dismissal with prejudice 2. Dismissal upon notice by plaintiff 3. Dismissal upon motion by plaintiff; effect on existing counterclaim 4. Dismissal due to the fault of plaintiff 5. Dismissal of counterclaim, cross-claim or third-party complaint J. PRE-TRIAL 1. Concept of pre-trial 2. Nature and purpose 3. Notice of pre-trial 4. Appearance of parties; effect of failure to appear 5. Pre-trial brief; effect of failure to appear 6. Pre-trial order 7. Distinguish: pre-trial in civil cases and pretrial in criminal cases K. INTERVENTION 1. Requisites for intervention 2. Time to intervene 3. Remedy for the denial of motion to intervene L. SUBPOENA 1. Subpoena duces tecum 2. Subpoena ad testificandum 3. Service of subpoena 4. Compelling attendance of witnesses; contempt 5. Quashing of subpoena M. COMPUTATION OF TIME N. MODES OF DISCOVERY 1. Depositions pending action; depositions before action or pending appeal a. Meaning of deposition b. Uses; scope of examination c. When may objections to admissibility be made d. When may taking of deposition be terminated or its scope limited 2. Written interrogatories to adverse parties a. Consequences of refusal to answer b. Effect of failure to serve written interrogatories Page 38 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 3. Request for admission a. Implied admission by adverse party b. Consequences of failure to answer request for admission c. Effect of admission d. Effect of failure to file and serve request for admission 4. Production or inspection of documents or things 5. Physical and mental examination of persons 6. Consequences of refusal to comply with modes of discovery O. TRIAL 1. Adjournments and postponements 2. Requisites of motion to postpone trial a. For absence of evidence b. For illness of party or counsel 3. Agreed statement of facts 4. Order of trial; reversal of order 5. Consolidation or severance of hearing or trial 6. Delegation of reception of evidence 7. Trial by commissioners a. Reference by consent or ordered on motion b. Powers of the commissioner c. Commissioner's report; notice to parties and hearing on the report P. DEMURRER TO EVIDENCE 1. Ground 2. Effect of denial 3. Effect of grant 4. Waiver of right to present evidence 5. Distinguish: Demurrer to evidence in a civil case and demurrer to evidence in a criminal case Q. JUDGMENTS AND FINAL ORDERS 1. Judgment after pre-trial 2. Judgment without trial 3. Judgment on the pleadings 4. Summary judgments a. For the claimant b. For the defendant c. When the case not fully adjudicated d. Affidavits and attachments 5. Distinguish: judgment on the pleadings and summary judgments 6. Contents of a judgment 7. Rendition of judgments and final orders 8. Entry of judgment and final order R. POST-JUDGMENT REMEDIES 1. Motion for new trial or reconsideration REMEDIAL LAW a. Grounds b. When to file c. Denial of the motion; effect d. Grant of the motion; effect e. Remedy when motion is denied, fresh 15-day period rule 2. Appeals in general a. Judgments and final orders subject to appeal b. Matters not appealable c. Remedy against judgments and orders which are not appealable d. Modes of appeal i. Ordinary appeal ii. Petition for review iii. Petition for review on certiorari e. Issues to be raised on appeal f. Period of appeal g. Perfection of appeal h. Appeal from judgments or final orders of the Metropolitan Trial Courts/Municipal Trial Courts/Municipal Trial Courts in Cities/Municipal Circuit Trial Courts i. Appeal from judgments or final orders of the Regional Trial Courts j. Appeal from judgments or final orders of the Court of Appeals k. Appeal from judgments or final orders of the Sandiganbayan l. Appeal from judgments or final orders of the Court of Tax Appeals m. Review of final judgments or final orders of the Commission on Audit n. Review of final judgments or final orders of the Commission on Elections o. Review of final judgments or final orders of the Civil Service Commission p. Review of final judgments or final orders of the Ombudsman q. Review of final judgments or final orders of the National Labor Relations Commission r. Review of final judgments or final orders of quasi-judicial agencies 3. Relief from judgments, orders and other proceedings a. Grounds for availing of the remedy b. Time to file petition c. Contents of petition 4. Annulment of Judgments or final orders and resolutions a. Grounds for annulment b. Period to file action Page 39 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW c. Effects of judgment of annulment 5. Collateral attack of judgment S. EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS 1. Difference between finality of judgment for purposes of appeal; for purposes of execution 2. When execution shall issue a. Execution as a matter of right b. Discretionary execution 3. How judgment is executed a. Execution by motion or by independent action b. Issuance and contents of a writ of execution c. Execution of judgments for money d. Execution of judgments for specific acts e. Execution of special judgments f. Effect of levy on third persons 4. Properties exempt from execution 5. Proceedings where property is claimed by third persons; in relation to third party claim in attachment and replevin 6. Rules on redemption 7. Examination of judgment obligor when judgment is unsatisfied 8. Examination of obligor of judgment obligor 9. Effect of judgment or final orders 10. Enforcement and effect of foreign judgments or final orders Page 40 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 A. GENERAL PROVISIONS Applicability of the Rules of Court The Rules shall apply in all the courts, except as otherwise provided by the Supreme Court. (Sec. 2, Rule 1). Cases when the Rules are Available and Not Available Cases where Rules are available: 1. Civil cases; 2. Criminal cases; 3. Special Proceedings. (Sec. 3, Rule 1). Cases where Rules are not available 1. Election cases; 2. Land registration; 3. Cadastral; 4. Naturalization; 5. Insolvency proceedings; and 6. Other cases not herein provided for. Except by analogy or in a suppletory character and whenever practicable and convenient. (Sec. 4, Rule 1). How Cases are Commenced A civil action is commenced by the filing of the original complaint in court. (Sec. 5, Rule 1). If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (Id.). Construction The Rules are liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1). Rule 1, Section 6 of the Rules of Court provides that the "rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.” However, resort to liberal construction must be rational and well-grounded, and its factual bases must be so clear such that they outweigh the intent or purpose of an apparent reading of the rules. (Viva Shipping Lines Inc., v. REMEDIAL LAW Keppel Philippines Mining Inc., GR No. 177382, 17 February 2016) B. ACTIONS 1. MEANING OF ORDINARY CIVIL ACTIONS Meaning of Actions and Ordinary Civil Actions An action is a formal demand of one's legal rights in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. (Hagans v. Wislizenus, G.R. No. 16680, Sep. 13, 1920). A civil action is one by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong. (Sec. 3 (a)(1), Rule 1). An ordinary action includes those proceedings which are instituted and prosecuted according to the ordinary rules and provisions relating to actions at law or suits in equity. (Natcher v. Court of Appeals, G.R. No. 133000, Oct. 2, 2001). A civil action may be either ordinary or special. (Sec. 3 (a)(1), Rule 1). 2. MEANING OF SPECIAL CIVIL ACTIONS A special civil action contains special features not found in ordinary civil actions. It is also governed by rules on ordinary civil actions, subject to specific rules (Rules 62-71) for special civil actions. (Id.). 3. MEANING OF CRIMINAL ACTIONS A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. (Sec. 3 (b), Rule 1). Page 41 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS CIVIL ACTIONS One by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong. (Sec. 3 (a)(1), Rule 1). SPECIAL PROCEEDINGS Remedy by which party seeks to establish the status or right of a party, or a particular fact. (Sec. 3 (c), Rule 1). 5. PERSONAL ACTIONS AND REAL ACTIONS Real Actions, Defined Real actions are those which affect title to or possession of real property or an interest therein. (Sec. 1, Rule 4). For an action to be a real action, it is not enough that the action must deal with real property. It is important that the matter in litigation must involve or affect title to or possession of real property or any interest therein. (RIANO, 2019, p. 216). Personal Actions, Defined Personal actions are all other actions, except criminal actions, not involving title to or possession of real property or any interest therein. It involves actions in which personal property is sought to be recovered or damages for breach of contract are sought. (Sec. 2, Rule 4). Importance of Knowing the Distinction Between Real and Personal Actions The distinction between real and personal action is important for the purpose of determining the venue of the action and knowing which court has jurisdiction. (RIANO, 2019, p. 220). 6. LOCAL AND TRANSITORY ACTIONS A real action is local, i.e., its venue depends upon the location of the property involved in the litigation. It is filed in the court where the property or any part thereof is situated. (Sec. 1, Rule 4; supra). REMEDIAL LAW A personal action is transitory, i.e., its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff. An example of such action is recovery of sum of money. (Sec. 2, Rule 4, supra). 7. ACTIONS IN REM, IN PERSONAM, AND QUASI IN REM Actions in Rem An action in rem is: 1. A proceeding to determine the state or condition of a thing; 2. Directed against the thing itself; 3. Jurisdiction over the person of the defendant is not required; and 4. Judgment is binding on the whole world. (Frias v. Alcayde, G.R. No. 194262, Feb. 28, 2018). In an action in rem, jurisdiction over the res (or thing) is acquired either: (a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law; or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. (Alba v. Court of Appeals, G.R. No. 164041, Jul. 29, 2005). Examples of actions in rem are: petition for adoption, correction of entries in the birth certificate; or annulment of marriage; nullity of marriage; petition to establish illegitimate filiation; registration of land under the Torrens system; and forfeiture proceedings. (Frias v. Alcayde, G.R. No. 194262, Feb. 28, 2018). Nevertheless, in a proceeding in rem, summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements. (Gomez v. CA, G.R. No. 127692, Mar. 10, 2004) Actions in Personam 1. An action to impose a responsibility or liability upon a person directly. 2. Directed against a particular person. 3. Jurisdiction over the person of the defendant is required. Page 42 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 4. Judgment is binding only upon the parties impleaded or their successors in interest. (Frias v. Alcayde, G.R. No. 194262, Feb. 28, 2018). between the parties and does not bind the State or the other riparian owners who may have an interest over the island involved herein. (Jagualing v. Court of Appeals, G.R. No. 94283, Mar. 4, 1991) Where the action is in personam, that is, one brought against a person on the basis of her personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. Service of summons upon the defendants is essential in order for the court to acquire jurisdiction over their persons. (Velayo-Fong v. Spouses Velayo, G.R. No. 155488, Dec. 6, 2006). Converting an Action In Personam to an Action In Rem or Quasi In Rem If the defendant is a non-resident and, who remains beyond the range of the personal process of the court and he refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the property itself is in fact the sole thing which is impleaded and is the responsible object which is the subject of the exercise of judicial power. It follows that the jurisdiction of the court in such case is based exclusively on the power which, under the law, it possesses over the property. Upon acquisition of jurisdiction over the property, the court can validly hear the case. (El Banco Español-Filipino v. Palanca, G.R. No. L-11390, Mar. 26, 1918). Examples of actions in personam are: action for collection of sum of money and damages; action for unlawful detainer or forcible entry; action for specific performance; action to enforce a foreign judgment in a complaint for a breach of contract. (Frias v. Alcayde, G.R. No. 194262, Feb. 28, 2018). Actions Quasi in Rem 1. It is a proceeding, the purpose of which is to subject the interest of a named defendant over a particular property to an obligation or lien burdening it. 2. Directed against particular persons. 3. Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired. 4. Judgment is binding upon the particular persons. (Id.). Similar to an action in rem, in actions quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. (Banco Do Brasil v. Court of Appeals, G.R. Nos. 121576-78, Jun. 16, 2000). Examples of actions quasi in rem: suits to quiet title; actions for foreclosure; and attachment proceedings. (Frias v. Alcayde, G.R. No. 194262, Feb. 28, 2018). In converting an action in personam against a nonresident defendant, to an action in rem or quasi in rem, jurisdiction over the res must be acquired by attachment. (Perkin Elmer Singapore Pte Ltd. v. Dakila Trading Corp., G.R. No. 172242, Aug. 14, 2007) But it does not mean that notice or summons to the parties interested is not necessary. Due process still requires that they be notified and given an opportunity to defend their interest. (Gomez v. CA, G.R. No. 127692, Mar. 10, 2004). This is satisfied through extraterritorial service. (Sec. 17, Rule 14). Importance of Distinction Between Actions In Rem, In Personam and Quasi In Rem The distinction between the three types of actions is important to determine: 1. Whether or not jurisdiction over the person of the defendant is required; 2. The type of summons to be employed and how it is served; and 3. Upon whom judgment is binding. An action quasi in rem is an action in personam concerning real property. Thus, the judgment in proceedings of this nature is conclusive only Page 43 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 C. CAUSE OF ACTION of the primary rights of the plaintiff. (Sec. 2, Rule 2). 1. MEANING OF CAUSE OF ACTION A cause of action is an act or omission of one party in violation of the legal rights of another. (Sec. 2, Rule 2). Every ordinary civil action must be based on a cause of action. (Sec. 1 Rule 2). Elements of a Cause of Action (ROB): 1. Legal Right of the plaintiff; 2. Correlative Obligation of the defendant to respect plaintiff’s right; 3. Act or omission (i.e. Breach) of the defendant in violation of plaintiff’s legal right. (Heirs of Spouses Mesina v. Heirs of Fian, Sr., G.R. No. 201816, Apr. 8, 2013). Recall: The obligations referred to above are those arising from: (Civil Code, Art. 1157): 1. Law 2. Contract 3. Quasi-Contract 4. Delict 5. Quasi-Delict Even a third party outside the contract can have a cause of action against either or both contracting parties, provided all the above requisites are present. (Camarines Sur IV Electric Cooperative, Inc. v. Aquino, G.R. No. 167691, 2008). The phrase “financial and business difficulties” in the complaint is a vague notion, ambiguous in concept. With no “particular injury” alleged in the complaint, there is no delict or wrongful act or omission attributable to the petitioner that would violate the primary rights of the respondent; thus, there is failure to state a cause of action. (VinzonsChato v. Fortune, G.R. No. 141309, December 23, 2008) 2. DISTINGUISH: RIGHT OF ACTION AND CAUSE OF ACTION Cause of Action A cause of action is a delict or wrongful act or omission committed by the defendant in violation Right of Action “Right of action" is the right to commence and maintain an action. The right of action springs from the cause of action but does not accrue until all the facts which constitute the cause of action have occurred. (Spouses Borbe v. Calalo, G.R. No. 152572, Oct. 5, 2007). It is the right of a person to bring and prosecute an action to obtain a judgment, the elements of which are as follows: 1. There must be a cause of action; 2. Compliance with all the conditions precedents; and 3. Action must be instituted by the proper party. (Turner v. Lorenzo Shipping Corp., G.R. No. 157479, Nov. 24, 2010). Performance or fulfillment of all conditions precedent upon which a right of action depends must be sufficiently alleged, considering that the burden of proof to show that a party has a right of action is upon the person initiating the suit. (Philippine American General Insurance Co., v. Sweet Lines, G.R. No. 87434, Aug. 5, 1992) CAUSE OF ACTION RIGHT OF ACTION An act or omission of one party in violation of the legal rights of another. Formal statement of operational facts that give rise to remedial rights. Governed by substantive law. The reason for the action. Not affected by affirmative defenses. Right to commence and maintain an action. A remedial right belonging to persons. Governed by procedural law. The remedy afforded. May be lost or waived due to affirmative defenses. (Multi-Realty Development Corp. v. Makati Tuscany Condominium Corp., G.R. No. 146726, Jun. 16, 2006; Turner v. Lorenzo Shipping Corp.). Page 44 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 3. DISTINGUISH: FAILURE TO STATE A CAUSE OF ACTION AND LACK OF CAUSE OF ACTION Failure to State a Cause of Action The failure to state a cause of action refers to insufficiency of allegation in the pleading. Its examination is limited to the complaint, whether it contains an averment of the 3 essential elements of a cause of action. The test is whether or not, admitting hypothetically the allegations of fact made in the complaint, a judge may validly grant the relief demanded. (Philippine National Bank v. Abello, G.R. No. 242570, Sep.18, 2019). If the allegations of the complaint do not state the concurrence of the elements of a cause of action, the complaint becomes vulnerable to a motion to dismiss on the ground of failure to state a cause of action. (Zuñiga-Santos v. Santos-Gran, G.R. No. 197380, Oct. 8, 2014). NOTE: Under the 2019 Amendments, failure to state cause of action is now an affirmative defense (see Sec. 12, Rule 8), and a motion to dismiss is now a prohibited pleading, save for certain grounds (see, Sec. 12, Rule 15). Lack of Cause of Action Lack of cause of action refers to the insufficiency of factual basis for the action. (Philippine National Bank v. Abello, G.R. No. 242570, Sep.18, 2019). In a dismissal due to lack of cause of action, the court, in effect, declares that the plaintiff is not entitled to a favorable judgment for failure to substantiate his or her cause of action by preponderance of evidence. Considering that questions of fact are involved, the dismissal of the complaint due to "lack of cause of action" is usually made after trial, when the parties are given the opportunity to present all relevant evidence on such question of fact. (Id.). If the plaintiffs claim lacks a cause of action, the procedural recourse is for the respondent to raise such ground in a demurrer to evidence taken only after the plaintiff's presentation of evidence. (Zuñiga-Santos v. Santos-Gran, G.R. No. 197380, Oct. 8, 2014). REMEDIAL LAW FAILURE TO STATE LACK OF CAUSE A CAUSE OF OF ACTION ACTION Insufficiency of the Insufficiency of the allegations in the factual basis for the pleading. action. Raised before a Raised after the responsive pleading plaintiff has rested its has been filed. case. Remedy is to raise the Remedy is to file a same as an Demurrer to Evidence affirmative defense in under Rule 33, Sec. 1. the answer. (see Sec. 12, Rule 8). (Asia Brewery, Inc. v. Equitable PCI Bank, G.R. No. 190432, Apr. 25, 2017). 4. TEST OF SUFFICIENCY OF A CAUSE OF ACTION The cause of action in a complaint is not what the designation of the complaint states, but what the allegations in the body of the complaint define and describe.. (Dela Cruz v. Court of Appeals, G.R. No. 139442, Dec. 6, 2006). The test of the sufficiency of the facts alleged in the complaint as constituting a cause of action is whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint. (see Misamis Occidental II Cooperative v. David, G.R. No. 129928, Aug. 25, 2005) If the allegations in the complaint furnish sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless of the defense that may be raised by the defendants. (Ceroferr Realty Corp. v. Court of Appeals, G.R. No. 139539, 2002) In order to sustain a dismissal on the ground of lack of cause of action, the insufficiency must appear on the face of the complaint. And the test of the sufficiency of the facts alleged in the complaint to constitute a cause of action is whether or not, admitting the facts alleged, the court can render a valid judgment thereon in accordance with the prayer of the complaint. Page 45 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 (Danfoss, Inc v Continental Cement Corp, G.R. No. 143788, Sep. 9, 2005). In determining the sufficiency of stating the cause of action, to be taken into account are only the material allegations in the complaint; extraneous facts and circumstances or other matters aliunde are not considered. Nevertheless, the court may consider in addition to the complaint the appended annexes or documents, other pleadings of the plaintiff, or admissions in the records. (Spouses Zepeda v. China Banking Corp., G.R. No. 172175, Oct. 9, 2006). Anticipatory Breach An anticipatory breach may occur, for example, if the obligor manifests an unqualified and positive refusal to perform a contract, though the performance of the same is not yet due, and the renunciation goes to the whole contract, it may be treated as a complete breach, which will entitle the injured party to bring his action at once. (Blossoms & Co. v. Manila Gas Corporation, G.R. No. L32958, 1930) 5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS Effect of Splitting Cause of Action A party may not institute more than 1 suit for a single cause of action. If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others on the ground of res judicata or litis pendentia. (Secs 3 & 4, Rule 2; Sec. 12, Rule 15). NOTE: If the first action is pending when the second action is filed, the latter may be dismissed based on LITIS PENDENTIA. If a final judgment had been rendered in the first action when the second action is filed, the latter may be dismissed based on RES JUDICATA. Splitting of a single cause of action violates the policy against multiplicity of suits. (Dynamic Builders & Construction Co. v. Presbitero, G.R. No. 174202, Apr. 7, 2015). REMEDIAL LAW Test to Determine Singleness of Cause of Action The true rule which determines whether a party has only a single and entire cause of action, or has a severable demand for which he may maintain separate suits, is whether the entire amount arises from one and the same act or contract or the several parts arise from distinct and different acts or contracts. (BPI Family v. Vda. De Coscolluela, G.R. No. 167724, Jun. 27, 2006). When the facts clearly show that the filing of the first ejectment case was grounded on the violation of stipulations in the lease contract, while the filing of the second case was based on the expiration of the lease contract, the dismissal of the civil action would not prosper. To ascertain whether two suits relate to a single or common cause of action, several tests exist: 1. Whether the same evidence would support and sustain both the first and second causes of action (same evidence test); 2. Whether the defenses in one case may be used to substantiate the complaint in the other. 3. Whether the cause of action in the second case existed at the time of the filing of the first complaint. (Umale v. Canoga, G.R. No. 167246, Jul. 20, 2011) Divisible Contracts General Rule: A contract embraces only one cause of action because it may be violated only once even if it contains several stipulations. (Quiogue v. Bautista, G.R. No. L-13159, Feb. 28, 1962) Exception: A contract to do several things at several times is divisible by its nature. This kind of obligation authorizes successive actions and a judgment recovered for a single breach does not bar a suit for a subsequent breach. (Blossoms & Co. v. Manila Gas Corporation, G.R. No. L-32958, 1930) Exception to the exception: When a contract of lease provides for the payment of the rent in separate installments, each installment may be considered an independent cause of action, but in an action upon such a lease for the recovery of Page 46 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 rent, the installments due at the time the action was brought must be included in the complaint, and failure to do so constitutes a bar to a subsequent action for such overdue rent. (Larena v. Villanueva, G.R. No. L-29155, 1928) Prohibition Applies to Other Pleadings It is to be noted that splitting a cause of action is NOT allowed by the Rules of Court and such prohibition applies not only to complaints but also to counterclaims and cross-claims. (Mariscal v. CA, G.R. No. 123926, 1999) 6. JOINDER AND MISJOINDER OF CAUSES OF ACTION Joinder of Causes of Action Joinder of causes of action is the assertion of as many causes of action as a party may have against another in one pleading alone. It is not compulsory, but merely permissive. (RIANO, 2019, p. 208; Sec. 5, Rule 2). A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions: The party joining the causes of action shall comply with the rules on joinder of parties, to wit: The right to relief should arise out of the SAME transaction or series of transactions; and That there exists a question of law or fact common to ALL parties; The joinder shall not include special civil actions or actions governed by special rules; Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and Where the claims in all the causes action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (Sec. 5, Rule 2). REMEDIAL LAW (Flores v. Mallare-Philipps, G.R. No. L-66620, Sep. 24, 1986). However, the joinder of causes of action does NOT include special civil actions or those actions governed by special rules, i.e., ejectment, REM foreclosure and partition. (Sec. 5, Rule 2). Misjoinder of Causes of Action There is misjoinder of causes of action when the conditions for joinder under Section 5, Rule 2 are not met. (Spouses Perez v. Hermano, G.R. No. 147417, Jul. 8, 2005). When there is a misjoinder of causes of action, the erroneously joined cause of action can be severed from the rest of the causes of action and may proceed separately upon motion by a party or upon the court’s own initiative. (Rule 2, Sec. 6) When after severance, the case falls outside the jurisdiction of the court, the case may be dismissed motu propio or on motion for lack of jurisdiction. (Sec. 1, Rule 9) If no one objects to the misjoinder, it would be tried and decided together with the other causes of action. (Ada v. Baylon, G.R. No. 182432, 2012). Misjoinder of causes of action and parties do not involve a question of jurisdiction of the court to hear and proceed with the case. They are not even accepted grounds for dismissal thereof. Instead, under the Rules of Court, the misjoinder of causes of action and parties involve an implied admission of the court's jurisdiction. (Republic v. Herbieto, G.R. No. 156117, May 26, 2005). But if a party, despite the order from the court, fails or refuses to sever the misjoined causes of action, the complaint is dismissible under Rule 17, Sec. 3 of the Rules of Court. (RIANO, 2019, p. 212). D. PARTIES TO CIVIL ACTION When there are two or more defendants, or one or more plaintiffs, the causes of action against the defendants can only be joined if there is compliance with the rules on joinder of parties. Who May Be Parties Only the following may be parties to a civil action 1. Natural persons; 2. Juridical persons; and Page 47 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 3. Entities authorized by law. (Sec. 1, Rule 3). A complaint commenced by a plaintiff not authorized to be a party to a case can be raised as an affirmative defense based on the ground of lack of legal capacity to sue. (Sec. 12, Rule 8). Juridical Persons as Parties The following are juridical persons under the law: 1. The State and its political subdivisions; 2. Other corporations, institutions, and entities for public interest or purpose, created by law; and 3. Corporations, partnerships, and associations for private interest or purpose, to which the law grants a juridical personality separate and distinct from its shareholders, partners, or members. (Art. 44, Civil Code). Who are Plaintiffs and Defendants PLAINTIFF DEFENDANT Generally refers to the Does not only refer to claiming party or more the original defending appropriately, the party. original claiming party, and is the one who files the complaint. The term may refer to the claiming party, the counter-claimant, the cross-claimant or the third-party plaintiff. If a counterclaim is filed against the original plaintiff, the latter becomes a defendant and the former, a plaintiff in the counterclaim. (Sec. 1, Rule 3). Entities Authorized by Law to be Parties One need not be a natural or juridical person to be a party to a civil action, so long as it is authorized by law to be such. Examples of such entities are: 1. Corporation by estoppel; 2. Partnership which failed to comply with registration requirements; 3. Estate of a deceased person; 4. Legitimate labor organization; 5. The Roman Catholic Church; 6. Dissolved corporation prosecuting and defending suits within 3 years from its dissolution pursuant to its liquidation; 7. Partnership in the exercise of a profession. (RIANO, 2019, p. 236); When two or more persons not organized as an entity without juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. (Sec. 15, Rule 3). An unlicensed foreign corporation doing business in the Philippines cannot sue before Philippine courts. On the other hand, an unlicensed foreign corporation not doing business in the Philippines can sue before Philippine courts in cases involving an isolated transaction. (Van Zuiden v. GTVL, G.R. No. 147905, 2007) Defenses When a Party Impleaded is Not Authorized to be a Party: 1. If PLAINTIFF- raise an affirmative defense in the answer that the plaintiff has no legal capacity to sue. (Sec. 12, Rule 8). Note: Under the 2019 Amendments, the plaintiff’s lack of legal capacity to sue is no longer a ground for a motion to dismiss (See Sec. 12, Rule 15 of the New Rules) It is now considered an affirmative defense (See Sec. 12, Rule 8 of the New Rules). Rule 16 on Motions to Dismiss under the 1997 Rules has been deleted. 2. If DEFENDANT- raise an affirmative defense that the pleading states no cause of action. (Sec. 12, Rule 8). 1. REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES; REPRESENTATIVES AS PARTIES; NECESSARY PARTIES; INDIGENT PARTIES; ALTERNATIVE DEFENDANTS Real Party-in-Interest One who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. (Sec. 2, Rule 3). Page 48 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW Every action must be prosecuted and defended in the name of the real party-in-interest. (Id.). rescinded when the creditors cannot collect the claims due them. (Civil Code, Art. 1177) The interest must be real, which is a present substantial interest as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential interest. (Rayo v. Metrobank, G.R. No. 165142, Dec. 10, 2007) Examples Involving Real Parties in Interest 1. In one case, the Court debunked the petitioners’ contention that they are not real parties-ininterest since they are not parties nor signatories to the contract and hence should not have been impleaded as defendants. It is undeniable that petitioner Chan is an heir of Ramon Chan and, together with petitioner Co, was a successor-in-interest to the restaurant business of the late Ramon Chan. Both continued to operate the business after the death of Ramon. Thus, they are real parties-ininterest in the case filed by private respondent, notwithstanding that they are not signatories to the Contract of Lease. (Sui Man Hui Chan v. CA, G.R. No. 147999, Feb. 27, 2004); 2. A lawful possessor (who is not the owner) who was disturbed of his possession can bring an action to recover possession. (Phil. Trust Company v. CA, G.R. No. 124658, Dec. 15, 1999); 3. Unless otherwise authorized by a special power of attorney, an agent may not file a suit on behalf of the principal as he is not the real party-in-interest. (Art. 1878, Civil Code); 4. Any one of the co-owners may bring an action for ejectment (Art. 487, Civil Code); 5. Condominium unit owners and residents thereof affected by the oil leaks of the pipelines of the defendant may sue as real parties-in-interest. (West Tower Condominium, et.al., v. First Phil. Industrial Condominium, G.R. No. 194239, Jun. 16, 2015). The purposes of the requirement for the real partyin-interest prosecuting or defending an action at law are: i. To prevent the prosecution of actions by persons without any right, title or interest in the case; ii. To require that the actual party entitled to legal relief be the one to prosecute the action; iii. To avoid a multiplicity of suits; and iv. To discourage litigation and keep it within certain bounds, pursuant to sound public policy. (Stronghold Insurance Company, Inc. v. Cuenca, G.R. No. 173297, 2013) Determining the Real Party-in-Interest The determination of who is the real party-ininterest requires consideration of the elements of a cause of action. A cause of action involves the existence of a right and a violation of such right. Thus, the owner of the right violated stands as the real party-in-interest as plaintiff, and the person responsible for violation is the real party in interest as defendant. (RIANO, 2019, p. 239). If a suit is brought not against a real party-ininterest, a motion to dismiss (now an affirmative defense) may be filed on the ground that the complaint states no cause of action. (Sps. Laus v. Optimum Security Services, Inc., G.R. No. 208343, Feb. 3, 2016). General Rule: Only parties to a contract may sue. Exceptions: 1. A beneficiary of a stipulation pour autrui may demand fulfillment of the contract. (Civil Code, Art. 1311) A beneficiary is a real party-ininterest/indispensable party. 2. Those who are not principally or subsidiarily obligated in a contract may show the detriment that could result from it i.e., when contracts entered into in fraud of creditors may be Locus Standi vs. Real Party-in-Interest Legal standing or locus standi refers to a party's personal and substantial interest in a case, arising from the direct injury it has sustained or will sustain as a result of the challenged governmental action. (Chamber of Real Estate and Builders' Association, Inc. v. Energy Regulatory Commission, G.R. No. 174697, July 8, 2010). Locus standi calls for more than just a generalized grievance. The term "interest" means a material interest, an interest in issue affected by the Page 49 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 decree, as distinguished from mere interest in the question involved, or a mere incidental interest.|||(Abaya v. Ebdane, Jr., G.R. No. 167919, Feb. 14, 2007) Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. (Agan, Jr. v. Philippine International Air Terminals Co., Inc., G.R. No 155001, May 5, 2003). On the other hand, a real party in interest involves private suits, wherein he is "the party who would be benefited or injured by the judgment, or the 'party entitled to the avails of the suit. (Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995) LOCUS STANDI Refers to a party’s personal or substantial interest of a case involving a government action. May be relaxed when brought by taxpayers, citizens, voters, or lawmakers pursuant to public interest. REAL PARTY-ININTEREST Refers to a party who stands to be benefited or injured by the judgment in a private suit, or the party entitled to the avails of the same. May not be relaxed, and a suit brought by a party not a real party in interest is subject to the affirmative defense of lack of capacity to sue (plaintiff) or failure to state a cause of action (defendant). Indispensable Party A real party-in-interest without whom NO FINAL DETERMINATION can be had of an action. They are those with such an interest in the controversy that a final adjudication cannot be made, in his absence, without injuring or affecting that interest. (Sec. 7, Rule 3). REMEDIAL LAW Meanwhile, a party is not indispensable if his interest in the controversy or subject matter is distinct and divisible from the interest of the other parties and will not necessarily be prejudiced by a judgment which does complete justice to the parties in court. (Benedicto v. Cacho, G.R. No. 179121, Nov. 9, 2015) Effect of Absence of Indispensable Party Absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. (MWSS v. Court of Appeals, G.R. No. 126000, Oct. 7, 1998) Failure to implead an indispensable party makes available the affirmative defense of failure to state a cause of action. (Sec. 12, Rule 8) Outright dismissal is not the immediate remedy for failure to implead an indispensable party because under the Rules, non-joinder or misjoinder is not a ground to dismiss, and parties may be dropped or added at any stage upon motion of any party or on court’s own initiative (see Sec. 11, Rule 3); only when the order of the court to implead an indispensable party goes unheeded may the case be dismissed (see Sec. 3, Rule 17). Compulsory Joinder of Indispensable Party Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. (Sec. 7, Rule 3). Thus, it is mandatory to implead indispensable parties to the suit. If it appears to the court that an indispensable party has not been joined, it is its duty to stop the trial and order the inclusion of such party. The responsibility to implead rests on the plaintiff, and the defendant has no right to compel the plaintiff to prosecute the action against a party if he does not wish to do so, but the latter is to suffer the consequences of any error he might commit in exercising his option. (Uy v. CA, GR. 157065, Jul. 11, 2006). NOTE: While the general rule is that joinder of parties is permissive, it becomes compulsory when the one involved is an indispensable party. Page 50 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Examples Involving Indispensable Parties 1. In an action for the cancellation of memorandum annotated at the back of a certificate of title, the persons considered as indispensable include those whose liens appear as annotations pursuant to Section 108 of Presidential Decree (PD) No. 1529. (Crisologo v. JEWM Agro, G.R. No. 196894, Mar. 32014); 2. In a suit for breach of contract, the contracting parties are indispensable parties (St. Luke’s College of Medicine v. Sps. Perez, G.R. No. 222740, Sep. 28, 2016); 3. The registered owner of a lot whose title the plaintiff seeks to nullify is an indispensable party (Tumagan v. Kairuz, G.R. No. 198124, Sep. 12, 2018); 4. In an action for partition of real property, the coheirs and persons having interest in the property are indispensable parties. (Divinagracia v. Parilla, G.R. No. 196750, Mar. 11, 2015); 5. A transferee pendente lite is not an indispensable party because in any event he will be bound by the judgment against his predecessor (Santiago Land Dev. Corp. v. CA, GR No. 106194, Jan. 28, 1997); 6. A person whose right to the office is challenged (quo warranto) is an indispensable party (Galarosa v. Valencia, G.R. No. 109455, Nov. 11, 1993). 7. In a joint obligation, a joint debtor is not an indispensable party in the suit against his codebtor/s. (Art. 1208, Civil Code). (RIANO, 2019, pp. 250-252). Representatives as Parties Even where the action is allowed to be prosecuted or defended by a representative party or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest (Sec. 3, Rule 3.) NOTE: Impleading the beneficiary as a party is mandatory. The attorney-in-fact of the principal plaintiff filed the complaint in his residence. An attorney-in-fact is not a real party in interest. Hence, his residence is immaterial. A real party-in-interest is the party REMEDIAL LAW who, by the substantive law has the right sought to be enforced. Nowhere in Rule 3, Sec. 3 is it stated or implied that the representative is likewise deemed as the real party in interest. The Rule simply states that in actions which are allowed to be prosecuted or defended by a representative, the beneficiary shall be deemed the real party in interest and hence, should be included in the title of the case. (Ang v. Ang, G.R. No. 186993, 2012) If a complaint is filed for and on behalf of the plaintiff [by one] who is not authorized to do so, the complaint is not deemed filed. An unauthorized complaint does not produce any legal effect. Hence, the court should dismiss the complaint on the ground that it has no jurisdiction over the complaint and the plaintiff (Palmiano-Salvador v. Angeles, G.R. No. 171219, 2012) Grandchildren-heirs will only be deemed to have a material interest over the subject land - and the rest of the decedent’s estate for that matter - if the right of representation provided under Article 970, in relation to Article 982, of the Civil Code is available to them. In this situation, representatives will be called to the succession by the law and not by the person represented; and the representative does not succeed the person represented but the one whom the person represented would have succeeded. (Ang v. Pacunio, G.R. No. 208928, 2015) Necessary Party A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action; he should nevertheless be joined whenever possible. (Sec. 8, Rule 3; Law Firm of Laguesma Magsalin Consulta and Gastardo v. Commission on Audit, G.R. No. 185544, 2015) Effect of Non-Joinder of Necessary Parties The non-inclusion of a necessary party does NOT prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party. (Sec. 9, Rule 3; Agro Conglomerates, Inc. v. CA, G.R. No. 117660, Dec. 18, 2000). Page 51 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW Whenever a necessary party is not joined, the pleader shall set forth his: 1. Name, if known; and 2. Shall state why he is omitted. (Sec. 9, Rule 3). Indigent Party A party may be authorized to litigate as an indigent if the court is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities. (Sec. 21, Rule 3). Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. (Id.). The application and the hearing to litigate as an indigent litigant may be made ex parte. (Id.). The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against the necessary party. (Id.). Distinction Between an Indispensable and a Necessary Party INDISPENSABLE PARTY NECESSARY PARTY Must be joined under Should be joined any and all conditions. whenever possible. No final decree can be A final decree can be had in case of his or had despite his or her her absence. absence. Decision rendered without impleading the indispensable party is null and void. Decision rendered when necessary not impleaded is still valid, without prejudice to the rights of such party. (RIANO, 2019, p. 255). Examples Involving Necessary Parties 1. A joint debtor in a joint obligation is merely a necessary party because each debt is separate and distinct from the other. However, the creditor cannot collect the entire debt unless all joint debtors are impleaded. (RIANO, 2019, p.256); 2. Where the obligation of the parties is solidary, either of the parties is indispensable, and the other is not even a necessary party because complete relief is available from either. (Cerezo v. Tuazon, G.R. No. 141538, 2004) When an application to litigate as an indigent litigant is filed, the court shall determine if the applicant complies with the income and property standards prescribed in the present Section 19 of Rule 141—that is: 1. The applicant’s gross income and that of the applicant’s immediate family do not exceed an amount double the monthly minimum wage of an employee; and 2. The applicant does not own real property with a fair market value of more than P300,000, as stated in the current tax declaration. (Sec. 19, Rule 141). Further, the applicant must: 1. Execute an affidavit stating he falls within the income and property value thresholds; 2. Such affidavit must be supported by: a. Affidavit of a disinterested person attesting to such fact; b. The current tax declaration, if any, which shall be attached to the indigent’s affidavit. If the trial court finds that the applicant meets the income and property requirements, the authority to litigate as indigent litigant is automatically granted and the grant is a matter of right. However, if the trial court finds that one or both requirements have not been met, then it would set a hearing to enable the applicant to prove that the applicant has “no money or property sufficient and available for food, shelter and basic necessities for himself and his family.” (Spouses Algura v. City of Naga, G.R. No. 150135, Oct. 30, 2006). Only a natural party litigant may be regarded as an indigent litigant. (Re : Query of Mr. Roger C. Prioreschi, A.M. No. 09-6-9-SC, Aug. 19, 2009). Page 52 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Exemption of Indigent Party from Fees If one is authorized to litigate as an indigent, such authority shall include an exemption from the payment of: 1. Docket fees; 2. Other lawful fees; and 3. Transcripts of stenographic notes which the court may order to be furnished by him. (Sec. 21, Rule 3). However, the amount of the docket and other lawful fees, which the indigent was exempt from paying, shall be lien on the judgment rendered in the case favorable to the indigent, unless the court otherwise provides. (Id.). REMEDIAL LAW 2. COMPULSORY AND PERMISSIVE JOINDER OF PARTIES General Rule: Joinder of parties compulsory, but merely permissive. is Exception: When it refers to joinder indispensable parties. (Sec. 7, Rule 3). not of Compulsory Joinder of Parties The joinder of parties is compulsory if the parties to be joined are indispensable parties. (Id.). Note: See prior discussions on Compulsory Joinder of Indispensible Parties. Consequences of Falsity Committed by the Indigent Litigant Any falsity in the affidavit of the litigant or disinterested person shall cause: 1. The dismissal of the complaint or action; 2. The striking out of the indigent litigant’s pleading; and This is without prejudice to any criminal liability that may have been incurred. (Sec. 19, Rule 141). Permissive Joinder of Parties A permissive joinder of parties is allowed when the following is complied with: 1. The right to relief should arise out of the SAME transaction or series of transactions; and 2. That there exists a question of law or fact common to ALL parties. (Sec. 6, Rule 3; Central Bank Board of Liquidators v. Banco Filipino Savings and Mortgage Bank, G.R. No. 173399, Feb. 21, 2017). Alternative Defendant Where the plaintiff cannot definitely identify who among two or more persons should be impleaded as a defendant, he may join all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. (Rule 3, Sec. 13) Note that there must be at least two or more plaintiffs and/or defendants to be joined. (RIANO, 2019, p. 210) Spouses as Parties Husband and wife shall sue or be sued jointly, except as provided by law. (Sec. 4, Rule 3). Under the 2019 Amendments, when the spouses are sued jointly, summons must nevertheless be served on each of them individually. (Sec. 11, Rule 14). Minors or Incompetents as Parties A suit may be brought by OR against a minor or a person alleged to be incompetent with the assistance of his parents or his guardian. (Rule 3, Sec. 5) But the court may make such orders as may be just to prevent any party from: a. Being embarrassed; or b. Put to expense in connection with any proceedings in which he may have no interest. (Sec. 6, Rule 3). NOTE: Same transaction means that it pertains to transactions connected with the same subject matter of the suit. Examples of Permissive Joinder of Parties i. A is the passenger of the bus owned by B and driven by C. Due to the negligent driving of C, A suffered injuries. Here, A may join B and C as defendants in a complaint for quasi-delict; ii. D1 and D2 signed a promissory note in favor of C for P1 million. By law, D1 and D2 are joint debtors, unless otherwise indicated. Page 53 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Nevertheless, C may join D1 and D2 as defendants in a collection suit. (RIANO, 2019 p.210). 3. MISJOINDER AND NON-JOINDER OF PARTIES Misjoinder of Parties A party is MISJOINED when he is made a party to the action although he should not be impleaded. (supra at 254). Non-Joinder of Parties A party is NOT JOINED when he is supposed to be joined but is not impleaded in the action. (Id.). Effect of Misjoinder or Non-Joinder of Parties Neither of the two is a ground for the dismissal of an action, as parties may be dropped or added by order of the court or on motion of any party OR on its own initiative at any stage of the action and on such terms as are just. (Sec. 11, Rule 3). Only when the party fails to obey the order of dropping or adding parties can the court order the dismissal of the case. (Sec. 3, Rule 17). Unwilling Co-Plaintiff If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. (Sec. 10, Rule 3). 4. CLASS SUIT Nature of a Class Suit A class suit is an action where one or more may sue for the benefit of all if the requisites for said action are complied with. (RIANO, 2019, p. 267). A class suit is a representative suit insofar as the persons who institute it represent the entire class of persons who have the same interest or who suffered the same injury. However, unlike representative suits, the persons instituting a class suit are not suing merely as representatives. They themselves are real parties in interest directly injured by the acts or omissions complained of. (Paje v. Casiño, G.R. No. 207257, Feb. 3, 2015). REMEDIAL LAW An action does not become a class suit merely because it is designated as such in the pleadings; it depends upon the attendant facts. (Banda v. Ermita, G.R. No. 166620, Apr. 20, 2010). Courts must exercise utmost caution before allowing a class suit, which is the exception to the requirement of joinder of all indispensable parties. A quandary may result if the decision was unfavorable as those who were deemed impleaded by their self-appointed representatives would certainly claim denial of due process. (Manila International Airport Authority v. Rivera Village Lessee Homeowners Association, Inc., G.R. No. 143870, Sep. 30, 2005). Requisites of a Class Suit: For a class suit to prosper, the following must concur: 1. Subject matter of the controversy of common or general interest to many persons; 2. Persons are so numerous that it is impracticable to join all as parties; 3. The parties actually before the court are sufficiently numerous and representative; and 4. The representatives sue or defend for the benefit of all. (Juana Complex I Homeowners Association v. Fil-Estate Land, G.R. No. 152272, Mar. 5 2012). Common Interest in a Class Suit As a requisite for a class suit to prosper, common interest in the subject matter (e.g., money, land, chattel) of the litigation is required. It does not pertain to the delict or wrong committed by the defendant. (Arigo v. Swift, G.R. No. 206510, Sep. 16, 2014). Adequacy of Representation in a Class Suit In determining the question of fair and adequate representation of members of a class, the court must consider: i. Whether the interest of the named party is coextensive with the interest of the other members of the class; ii. The proportion of those that were made a party, as it so bears, to the total membership of the class; and Page 54 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 iii. Any other factor bearing on the ability of the named party to speak for the rest of the class. (Banda v. Ermita, G.R. No. 166620, Apr. 20, 2010) Examples Involving Class Suits i. The Court upheld the institution of a class suit in a case against a developer where its excavation and other activities led to the closure of a common road. The plaintiffs are commuters and motorists who regularly use the said road and that its permanent closure would cause them great and irreparable injury. (Juana Complex I Homeowners Assoc. v. Fil-Estate Land, Inc. G.R. No. 152272); ii. There can be no class suit in an action for damages filed by the relatives against the airline owner in a plane crash. There is no common or general interest in the injuries or death of the passengers, and separate interests must be proven individually; (RIANO 2019, p. 269); iii. There can be no class suit where the interests of the plaintiffs are conflicting (Ibañes v. Roman Catholic Church; G.R. No. L-4695, Dec. 12, 1908); iv. There can be no class suit filed by a corporation on behalf of its members for the recovery of parcels of land belonging to its members (Sulo ng Bayan, Inc. v. Araneta, G.R. No. L-31061, Aug. 17, 1976); v. There is no common or general interest of the plaintiffs in a suit against a libelous article. Each of the plaintiffs has a separate and distinct reputation not shared with others. NT (Newsweek, Inc. v. Intermediate Appellate Court, G.R. No. L-63559, May 30, 1986); vi. There is a class suit in an action filed to cancel the timber license agreements granted by the defendants and forthwith enjoin them from issuing further timber license agreements. There is a common and general interest in the plaintiffs suing in behalf of succeeding generations’ right to a balance and healthful ecology, based on the concept of intergenerational responsibility. (Oposa v. Factoran, G.R. No. 101083, Jul. 30, 1993). REMEDIAL LAW 5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. (Sec. 15, Rule 3). The responsive pleading of the entity sued must disclose the names and addresses of its members since they are the persons ultimately liable to the plaintiff. (Id.). 6. EFFECT OF DEATH OF PARTY LITIGANT Effect of Death of a Party on the AttorneyClient Relationship Juridical capacity and civil personality are extinguished upon death of a person. (Arts. 37 & 42, Civil Code). Attorney-client relationship is terminated upon the client's death. A dead client has no personality and cannot be represented by an attorney. (Borlongan v. Buenaventura, G.R. No. 167234, Feb. 27, 2006). Neither does the counsel become the counsel of the heirs of the deceased, unless said heirs engage his services. (Lawas v. Court of Appeals, G.R. No. L-45809, Dec. 12, 1986). Duty of Counsel Upon Death of Client Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to: 1. Inform the court within 30 days after such death of the fact thereof, and 2. Give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. (Sec. 16, Rule 3). The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. (Id.). Page 55 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Although the heirs may be allowed to substitute for the deceased without requiring the appointment of an administrator or executor, however, if within the specified period a legal representative fails to appear, the court may order the opposing counsel, within a specified period, to process the appointment of an administrator or executor who shall immediately appear for the estate of the deceased (San Juan v. Cruz, G.R. No. 167321, Jul. 31, 2006) The purpose behind this rule is the protection of the right to due process of every party to the litigation who may be affected by the intervening death. The deceased litigant is herself or himself protected as he/she continues to be properly represented in the suit through the duly appointed legal representative of his estate. (Sumaljag v. Spouses Literato, G.R. No. 149787, Jun. 18, 2008). REMEDIAL LAW jurisdiction over the substitute. (Ferreria v. Vda. de Gonzales, G.R. No. L-11567, Jul. 17, 1958). When Formal Substitution is Not Necessary The substitution is not necessary and would not be ordered if the death would extinguish the action. The proper course is for the court to dismiss the case. (RIANO, 2019, pp. 259, 263). Formal substitution of heirs is not necessary when the heirs themselves voluntarily appeared, participated in the case and presented evidence in defense of deceased defendant. (Vda. de Salazar v. CA, G.R. No. 121510, Nov. 23, 1995). Where the deceased has no heirs, the court shall require the appointment of an executor or administrator; if the heir is a minor, a guardian ad litem. (Rule 3, Sec. 16) Non-compliance with the rule on substitution of a deceased party renders the proceedings and judgment of the trial court infirm, because the trial court acquired no jurisdiction over the persons of the legal representatives or of the heirs on whom the trial and judgment would be binding on. (Brioso v. Rili-Mariano, G.R. No. 132765, Jan. 31, 2003). Examples of Claims Not Extinguished by Death i. Recovery of real and personal property against the estate. (RIANO, 2019, pp. 262-263); ii. Enforcement of liens on such properties. (RIANO, 2019, pp. 262-263); iii. Recovery for an injury to person or property by reason of tort or delict committed by the deceased. (Sec. 1, Rule 87); iv. Actions to recover personal or real property (Saligumba v. Palanog, G.R. No. 143365, Dec. 4, 2008); v. An ejectment case against the deceased defendant (Vda. de Salazar v. Court of Appeals, G.R. No. 121510, Nov. 23, 1995); vi. Action to recover damages arising from delict (Sec. 4, Rule 111); vii. Actions based on the tortious conduct of a deceased defendant (Melgar v. Buenviaje, G.R. No. L-55750, Nov. 8, 1989). viii. Action for collection against the deceased defendant based on contractual claims (Sec. 20, Rule 3). It is not the amendment of the pleading but the substitution of his legal representatives or heirs that is required. Service of summons upon the heirs or representatives is also not required. It is the order of the court that enables it to acquire Action on Contractual Money Claims – Plaintiff Dies Plaintiff’s heirs or legal representatives will be substituted for him and case will proceed. (Sec. 16, Rule 3) Effect of Non-Substitution The court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased in cases when: a. If no legal representative is named by the counsel for the deceased party; or b. If the legal representative so named shall fail to appear within the specified period. (Sec. 16, Rule 3). The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (Id.). Page 56 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Action on Contractual Money Claims – Defendant Dies Before Entry of Final Judgment The case shall not be dismissed but shall be allowed to continue until entry of final judgment. (Sec. 20, Rule 3). The judgment favorable to the plaintiff shall be filed as a money claim against the estate. (Id.). NOTE: The action may arise from an implied contract (Id.). Action on Contractual Money Claims – Defendant Dies After Entry of Final Judgment If the judgment obligor (defendant) dies, but before levy or execution, the judgment may be enforced against his executor or administrator or successors in interest filed as a claim against the estate. (Sec. 7 (b), Rule 39). But if the judgment obligor dies after the judgment has been enforced or his property has already been levied, such property may actually be sold for the satisfaction of the judgment obligation. (Sec. 7 (c), Rule 39). Death or Separation of Party Who is a Public Officer When a public officer is a party in an action, in his official capacity and during its pendency, dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor provided that: 1. Satisfactory proof by any party that there is substantial need for continuing or maintaining the action; 2. The successor adopts or continues or threatens to adopt or continue the acts of his or her predecessor; 3. The substitution must be effected within 30 days after the successor assumes office or within the time granted by the court; and, 4. Notice of the application to the other party. (Sec. 17, Rule 3, Rufus v. Jardine, G.R. No.141834, Jul. 30, 2007). b. Such other designation as the case may require. When his identity or true name is discovered, the pleading must be amended accordingly. (Sec. 14, Rule 3). Party Becoming Incompetent or Incapacitated If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem. (Sec. 18, Rule 3). Notice to the Solicitor General The court, in its discretion, may require the appearance of the Solicitor General in any action involving the validity of: i. Treaty; ii. Law; iii. Ordinance; iv. Executive order; v, Presidential decree; or vi. Rules or regulations. The Solicitor General may be heard in person or through a representative duly designated by him. (Sec. 22, Rule 3). E. VENUE Definition of Venue Venue is the place where the case is to be heard or tried. (Nocum v. Tan, G.R. No. 145022, Sept. 23, 2005). 1. VENUE OF REAL ACTIONS The venue for real actions shall be in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. (Sec. 1, Rule 4). Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated. (Id.). Unknown Identity or Name of Defendant Whenever the identity or name of a defendant is unknown, he may be sued as: a. The unknown owner, heir, devisee; or Page 57 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 2. VENUE OF PERSONAL ACTIONS The venue for personal actions shall be, at the election of the plaintiff: a. Where the plaintiff or any of the principal plaintiffs resides; b. Where the defendant or any of the principal defendants resides; or c. In the case of a non-resident defendant, where he may be found. (Sec. 2, Rule 4). Based on the allegations of the complaint, if the respondent seeks the nullification of promissory notes, continuing surety agreements, checks and mortgage agreements for being executed against their will and vitiated by irregularities, not the recovery of the possession or title to the properties burdened by the mortgages, then the action is personal in nature and not real, therefore, the proper venue would be governed by Rule 4 Section 2(b) of the Rules of Court. (BPI v Hontanosas, G.R. No. 157163, Jun. 25, 2014). Meaning of Residence Residence means physical or actual habitation or actual residence or place of abode, (Fule v. CA, G.R. No. L-40502, 1976) whether permanent or temporary as long as he resides with continuity and consistency therein. (Dangwa Transportation Co v. Sarmiento, G.R. No. L-22795, 1977) When there is more than one plaintiff in a personal action case, the residences of the principal parties should be the basis for determining proper venue. Otherwise, the purpose of the Rule would be defeated since a nominal or formal party is impleaded in the action since the latter would not have the degree of interest in the subject of the action which would warrant and entail the desirably active participation expected of litigants in a case. (Marcos-Araneta v. CA, G.R. No. 154096, Aug. 22, 2008) 3. VENUE OF ACTIONS AGAINST NONRESIDENTS If the Action Involves the Personal Status of the Plaintiff or Property of Defendant If the action involves the personal status of the plaintiff, or any property of said defendant located in the Philippines and the defendant does REMEDIAL LAW NOT reside or is NOT found in the Philippines, the venue of the action may be the court: a. Where the plaintiff resides, if the case affects the status of the latter; or b. Where the property or portion thereof is situated, if the case involves the property of the defendant. (Sec. 3, Rule 4). If Defendant Does Not Reside But is Found in the Philippines When it is a personal action, the action may be commenced and tried in the court of the place where the plaintiff resides or where the defendant may be found, e.g., if the defendant is a U.S. resident, but is on vacation in Makati, summons may be served on defendant in Makati. (Sec. 2, Rule 4). If there are several defendants, but one of them is a resident, or a nonresident but can be found in the Philippines, the action may be commenced where the plaintiff resides or where the resident defendant resides or where the nonresident defendant may be found. (Id.). 4. WHEN THE RULES ON VENUE DO NOT APPLY The rules on venue are not applicable in any of the following cases: a. Where a specific rule or law provides otherwise; or b. Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (Sec. 4, Rule 4). First Exception: When a Specific Rule or Law Provides Otherwise Venue for Derivative Suits As regards the venue of derivative suits, Section 5, Rule 1 of A.M. No. 01-2-04-SC states: all actions covered by these Rules shall be commenced and tried in the Regional Trial Court, which has jurisdiction over the principal office of the corporation, partnership, or association concerned. Where the principal office of the corporation, partnership or association is registered in the Securities and Exchange Commission as Metro Manila, the action must be filed in the city Page 58 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 or municipality where the head office is located. (Hi-Yield Realty, Inc. v. CA, G.R. No. 168863, 2009). Venue for Revival of Judgment The proper venue in an action for revival of judgment depends on the determination of whether the present action for revival of judgment is a real or personal action. The allegations in the complaint for revival of judgment determine whether it is a real action or a personal action. (Infante v. Aran Builders, G.R. No. 156596 Aug. 24, 2007). Venue for Petition of Declaration of Nullity and Annulment of Voidable Marriage The petition shall be filed in the Family Court of the province or city where: a. The petitioner or the respondent has been residing for at least 6 months prior to the date of filing; or b. In case of nonresident respondent, where he may be found in the Philippines, at the election of the petitioner; or c. In stations where no branches of the Regional Trial Court are designated as Family Courts, the cases falling within the jurisdiction of the Family Courts shall be raffled among the branches of the Regional Trial Court with the same station which shall try and decide such cases according to the existing issuances. (Sec. 4, A.M. No. 02-11-10-SC, Re: Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, as amended). Venue for Adoption The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside. (Sec. 6, A.M. No. 02-6-02-SC, Rule on Adoption). Venue for Probate of Wills If the decedent died in the Philippines: Where the deceased last resided at his time of death. (Sec. 1, Rule 73). If the decedent died abroad: in any of the provinces where he has property. (Id.). REMEDIAL LAW Second Exception: When the Parties Agree to an Exclusive Venue The parties may stipulate on the venue as long as the agreement to that effect is: 1. In writing; 2. Made before the filing of the action; and 3. Exclusive as to the venue. (Sec. 4(b), Rule 4; RIANO, 2019, p. 172). 5. EFFECTS OF STIPULATIONS ON VENUE Restrictive and Permissive Written Stipulations Written stipulations as to venue are either mandatory (restrictive) or permissive. In interpreting stipulations, inquiry must be made as to whether or not the agreement is restrictive in the sense that the suit may be filed only in the place agreed upon or merely permissive in that the parties may file their suits not only in the place agreed upon but also in the places fixed by the rules. (Supena v. Dela Rosa, A.M. No. RTJ-931031, Jan. 28, 1997). The mere stipulation on the venue of an action is not enough to preclude parties from bringing a case in other venues. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place. (Sps. Lantin v. Lantion, G.R. No. 160053, Aug. 28, 2006) Examples of Restrictive Words Examples of qualifying or restrictive words: "exclusively" and "waiving for this purpose any other venue," "shall only" preceding the designation of venue, "to the exclusion of the other courts," or words of similar import. (Auction in Malinta, Inc. v. Luyaben, G.R. No. 173979, Feb. 12, 2007). Stipulations of Venue Apply Only When the Cause of Action is Breach of Contract Exclusive venue stipulation embodied in a contract restricts or confines parties thereto ONLY when the suit relates to breach of said contract. Since the other causes of action in petitioner’s complaint do not relate to the breach of the agreement it forged embodying the exclusive venue stipulation, they should not be subject to the exclusive venue. Page 59 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 The stipulation should be strictly confined to the specific undertaking or agreement. (Uniwide v. Cruz, G.R. No. 171456, Aug. 9, 2007). If the complaint was assailing the validity of the written instrument itself, the parties should not be bound by the exclusive venue stipulation contained therein and should be filed in accordance with the general rules on venue. It would be inherently inconsistent for a complaint of this nature to recognize the exclusive venue stipulation when it, in fact, precisely assails the validity of the instrument in which such stipulation is contained. (Briones v. Court of Appeals, G.R. No. 204444, Jan. 14, 2015) A restrictive stipulation on the venue of actions contained in a promissory note applies to the surety agreement supporting it, because the nature of the two contracts and the factual circumstances surrounding their execution are intertwined or interconnected. The surety agreement is merely an accessory to the principal loan agreement embodied in the promissory note. Hence, the enforcement of the former depends upon the latter. (PBCOM v. Lim, G.R. No. 158138, Apr. 12, 2005) The exclusive venue, as stipulated by the parties and sanctioned by Rule 4 of the Rules of Court, cannot be made to apply to the Petition for Extrajudicial Foreclosure because the provisions of Rule 4 pertain to venue of actions, which an extrajudicial foreclosure is not. Rule 2 of the Rules of Court defines an action as means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prevention or redress of a wrong. (Ochoa v. Chinabank, G.R. No. 192877, Mar. 23, 2011). Waiver of Venue The ground of improperly laid venue must be raised seasonably, else it is deemed waived. Where the defendant failed to either file a motion to dismiss on the ground of improper venue or include the same as an affirmative defense, he is deemed to have waived his right to object to improper venue. Here, petitioners raised at the earliest time possible, meaning “within the time for but before filing the answer to the complaint,” the matter of improper venue. (Marcos-Araneta v. Court of Appeals, G.R. No. 154096, Aug. 22, 2008). Note: Under the 2019 Amendments, the ground of improper venue is now an affirmative defense. (Sec. 12, Rule 8). F. PLEADINGS 1. KINDS OF PLEADINGS AND WHEN SHOULD THEY BE FILED Pleadings, defined The written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Rule 6, Sec. 1) Nature and purpose Pleadings are designed to develop and present the precise points in dispute between the parties. Their office is to inform the court and the parties of the facts in issue. (RIANO, 2019, p. 274). Pleading vs. Motion A motion is an application for relief other than by a pleading. (Rule 15, Sec. 1) The rules that apply to pleadings shall also apply to written motions so far as concerns caption, designation, signature, and other matters of form. (Rule 15, Sec. 11) PLEADING MOTION A submission of claims An application for an or defenses for order not included in appropriate judgment. the judgment. May be initiatory or not. Cannot be initiatory as motions are made in a case already filed in court. Must be written. May be oral when made in open court or in the course of a hearing or a trial. Page 60 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Must be filed before May be filed judgment. judgment. after PLEADINGS ALLOWED BY THE RULES OF COURT: 1. Complaint; 2. Answer; 3. Counterclaim; 4. Cross-claim; 5. Third (fourth, etc. – party complaint); 6. Complaint-in-intervention; and 7. Reply. (Rule 6, Sec. 2) a. Complaint The complaint is the pleading alleging the plaintiff’s or claiming party’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. (Rule 6, Sec. 3) b. Answer An answer is a pleading in which a defending party sets forth his defenses. (Sec. 6, Rule 4) It may be an answer to a complaint, a counterclaim or a cross-claim but not to a reply. Since it responds to a claim, an answer is called a responsive pleading. (RIANO, 2019, p. 323). i. Negative Defenses Negative defenses refer to the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. (Rule 6 Sec. 5(a)) ii. Negative Pregnant It is a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was, in effect, an admission of the averments it was directed at. (Marcos, Jr. v. PCGG, G.R. No. 189434, April 25, 2012) A negative pregnant is a form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. (Valdez v. Dabon, Jr., A.C. No. 7353, November 16, 2015). Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, it has been held that the qualifying circumstances alone are denied while the fact itself is admitted. (Serrano Mahilum v. Spouses Ilano, G.R. No. 197923, June 22, 2015) Example of a Negative Pregnant A complaint, in par. 4, alleged that the plaintiff was unable to take actual possession of the property because of the “unwarranted adverse claim of rights of ownership and possession by the defendant, alleging sale by a certain Fe of said property to defendant, which if true, had no right whatsoever to legally dispose the abovedescribed property not being the owner thereof.” In response, the answer of the defendant stated: “The defendant denies the material averments contained in par. 4, the truth being, that the defendant never asserted title of ownership to the property described in the complaint to anybody, much less to the herein plaintiff in virtue of any deed of conveyance executed in favor of the defendant by one Fe, nor claimed any possessory right over the said property, either by himself or through another. The Court held that there was a negative pregnant in the defendant’s reply, which is to be construed as an implied admission. Particularly, when the plaintiff alleged that his inability to take actual possession of the parcel of land due to "an unwarranted adverse claim of rights of ownership and possession by the defendant," followed by an allegation of how such claim was exercised, the defendant’s denial is as to "the material averments contained in par. 4 of the Complaint," conjoined with his disclaimer of dominical or possessory rights in the manner alleged in the complaint. It thus appeared that he denied the averments in par. 4, but he did not deny the fact of ownership and right to possession of the plaintiff. (Galofa v. Nee Bon Sing, G.R. No. L-22018, 1968). Page 61 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 c. COUNTERCLAIMS Counterclaims, Defined A counterclaim is any claim, which a defending party may have against an opposing party. (Rule 6, Sec. 6) A counterclaim is in itself a distinct and independent cause of action and when filed, there are two simultaneous actions between the same parties. (Padilla v. Globe Asiatique Realty Holdings Corporation, G.R. No. 207376, August 6, 2014). When a defendant files a counterclaim against the plaintiff, he becomes the plaintiff in the counterclaim and the original plaintiff becomes the defendant. (RIANO, 2019, p. 346). i. Compulsory Counterclaim REMEDIAL LAW Despite the lack of jurisdiction of the court to adjudicate on the counterclaim, the same may nevertheless be pleaded in the same action, not to obtain affirmative relief because the court, for want of jurisdiction cannot do so. The purpose would merely be as a defense to weaken the plaintiff’s claim. (Maceda v. Court of Appeals, G.R. No. 83545, 1989). Incompatibility Between a Compulsory Counterclaim and a Motion to Dismiss A compulsory counterclaim is auxiliary to the proceeding in the original suit and derives its jurisdictional support therefrom. A counterclaim presupposes the existence of a claim against the party filing the counterclaim. Hence, where there is no claim against the counterclaimant, the counterclaim is improper and it must be dismissed. (Financial Building Corporation v. Forbes Park Association, G.R. No. 133119, August 17, 2000). Elements of a Compulsory Counterclaim 1. Arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim; 2. It does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction; 3. The court has jurisdiction over the amount and nature of the case; and 4. It must be cognizable by the regular courts of justice. (Rule 6, Sec. 7, see Alba v. Malapajo, G.R. No. 198752, January 13, 2016). A party who desires to plead a compulsory counterclaim should NOT file a motion to dismiss. If he files a motion to dismiss and the complaint is dismissed, then there will be no chance to invoke the counterclaim. The better move is to file an answer with a counterclaim. (RIANO, 2019, p. 351). Test to Determine Whether a Counterclaim is Compulsory or Permissive i. Are the issues of fact or law raised by the claim and the counterclaim largely the same? ii. Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule? iii. Will substantially the same evidence support or refute plaintiff’s claim as well as the defendant’s counterclaim? And iv. Is there any logical relation between the claim and the counterclaim? Affirmative answers to the above queries indicate the existence of a compulsory counterclaim. (Financial Building v. FPA, G.R. No. 133119, 2000). General Rule: A compulsory counterclaim that a defending party has at the time he or she files his or her answer shall be contained therein. (Sec. 8, Rule 11; Sec. 2, Rule 9). A compulsory counterclaim not initially set up in the same action is barred. (Sec. 7, Rule 6). Rule on Barring of Compulsory Counterclaims A compulsory counterclaim that a defending party has at the time he or she files his or her answer shall be contained therein. (Sec. 8, Rule 11) If it is filed concurrently with the main action but in a different proceeding, it would be abated on the ground of litis pendentia; if filed subsequently, it would meet the same fate on the ground of res judicata. (Alba, Jr. v. Malapajo, G.R. No. 198752, Jan. 13, 2016). Page 62 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Exceptions: a. A counterclaim which either matured or was acquired by a party after serving his or her pleading may, with permission of the court, be presented as a counterclaim by supplemental pleading before judgment (Sec. 9, Rule 11); or b. When a pleader fails to set up the counterclaim through oversight, inadvertence, or excusable negligence, or when justice requires, he or she may set up the counterclaim by amendment before judgment. (Sec. 10, Rule 11). Difference between Counterclaims filed in the Municipal Trial Court / Metropolitan Trial Court and in the Regional Trial Court: A counterclaim filed in the Municipal Trial Court or in the Metropolitan Trial Court must be within the court’s jurisdiction both as to the nature and to the amount of the claim. (Sec. 7, Rule 6). A counterclaim filed in the RTC may be deemed compulsory regardless of the amount, but it must be within its jurisdiction as to nature – i.e., the RTC cannot try an unlawful detainer case as a counterclaim, but it may take cognizance of a counterclaim involving an amount below its jurisdictional threshold. (Sec. 7, Rule 6). ii. Permissive Counterclaim Nature of Permissive Counterclaim A counterclaim is permissive if any of the elements of a compulsory counterclaim is absent (see prior discussion on Elements of Compulsory Counterclaim; see also Sec. 7, Rule 6). The most commonly treated feature of a permissive counterclaim is its absence of a logical connection with the subject matter of the complaint. (International Container Terminal Services Inc. v. CA, G.R. No. 90530, 1992). A permissive counterclaim does not necessarily arise out of or is not directly connected with the subject matter of the first claim; it can be filed as a separate case altogether. There is a need to pay for docket fees since it is seen as a different action altogether with defendants becoming ‘plaintiffs’ in respect of such counterclaim. (Reillo v. San Jose, G.R. No. 166393, 2009) If the compulsory counterclaim is by reason of an unfounded suit, then it may prosper even if the main complaint is dismissed. The cause of action of the counterclaimant is not eliminated by the mere dismissal of the main complaint. (Padilla v. Globe Asiatique, G.R. No. 207376, 2014) Compulsory vs. Permissive Counterclaim COMPULSORY PERMISSIVE COUNTERCLAIM COUNTERCLAIM It arises out of or is It does not arise out of necessarily connected or is it necessarily with the transaction or connected with the occurrence that is the subject matter of the subject matter of the opposing party’s opposing party’s claim. claim. It shall be contained in It may be set up as an the answer. If not set independent action up it shall be barred. and will not be barred if not contained in the answer to the complaint. It is not an initiatory It is an initiatory pleading. pleading. Does not require Should be certification of forum accompanied by a shopping. certification against forum shopping and whenever required by law, a certificate to file action issued by Lupong Tagapamayapa. A compulsory It must be answered counterclaim that by the party against merely reiterates whom it is interposed special defenses are otherwise, he may be deemed controverted declared in default as even without a reply. to the counterclaim. Issues raised in a counterclaim are deemed automatically joined by the allegations of the complaint, which need not be answered. The answer must be made within ten (10) days from service. Page 63 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 COMPULSORY COUNTERCLAIM No requirement for the presence of third parties whom the court cannot acquire jurisdiction over for its adjudication. Does not require the payment of docket fees Failure to answer is not a ground to be declared in default. PERMISSIVE COUNTERCLAIM May require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. Requires the payment of docket fees. Must be answered by the party against whom it is interposed. Otherwise, the party may be declared in default. If not raised in the Failure to set it up in same action, it shall the same action does be barred. not bar its filing. (RIANO, 2019, p. 353 – 356). iii. Effect On The Counterclaim When The Complaint Is Dismissed Three Situations Involving the Effect of a Dismissal of a Complaint on the Counterclaim Already Set Up 1. When the defendant files an answer raising therein an affirmative defense, as well as a counterclaim, and upon hearing of the affirmative defenses, the court dismisses the case – Under Rule 16, Sec. 6 of the 1997 Rules on Civil Procedure, the dismissal of the complaint shall be without prejudice to the prosecution of the counterclaim in the same or a separate action. 2. When the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim, and the court grants the motion - Again, the dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. (Sec. 2, Rule 17). 3. When complaint is dismissed through the plaintiff’s fault and at a time when a counterclaim has already been set up - The dismissal is without prejudice to the right of the defendant to prosecute REMEDIAL LAW his counterclaim in the same or separate action. (Sec. 3, Rule 17). The counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim, because the Rules make no distinction. (RIANO, 2019, p. 461). d. Cross-claims Nature of Cross-claims A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may cover all or part of the original claim. (Sec. 8, Rule 6). A cross-claim that a party has at the time the answer is filed shall be contained in the answer. (Sec.8, Rule 11). Requirements: 1. A claim by one party against a co-party; 2. Must arise out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim; and 3. The cross-claimant is prejudiced by the claim against him by the opposing party. Effect of Failure to Set Up Cross-Claim General Rule: a cross-claim which is not set up in the action is barred. (Sec. 2, Rule 9). Exceptions: a. A cross-claim which either matured or was acquired by a party after serving his or her pleading may, with permission of the court, be presented as a cross-claim by supplemental pleading before judgment (Sec. 9, Rule 11); or b. When a pleader fails to set up the cross-claim through oversight, inadvertence, or excusable negligence, he or she may set up the crossclaim by amendment before judgment. (Sec. 10, Rule 11). c. When it is outside the jurisdiction of the court; d. If the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim. In which case, the cross-claim is considered PERMISSIVE; Page 64 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW e. Cross claim that may mature or may be acquired after service of the answer. fendant. (Sy Tiong Shiou v. Sy Chim, G.R. Nos. 174168 & 179438, Mar. 30, 2009) A cross-claim cannot be set up for the first time on appeal. (Loadmasters Customs Services v. Glodel Brokerage Corp., G.R. No. 179446, 2011) Requisites for a Third-party Action 1. The party to be impleaded must not yet be a party to the action; 2. The claim against the third-party defendant must belong to the original defendant; 3. The claim of the original defendant against the third-party defendant must be based upon the plaintiffs claim against the original defendant; and 4. The defendant is attempting to transfer to the third-party defendant the liability asserted against him by the original plaintiff. (Philtranco Services v. Paras, G.R. No. 161909, 25 April 2012). The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking an affirmative relief. (Torres v. CA, G.R. No. L-25889, 1973) Counter-counterclaims and Counter-crossclaims A counter-counter claim is filed when there is a claim against the original counter-claimant. A counter-cross-claim is filed against an original cross-claimant. (Rule 6, Sec. 9) e. Third, (Fourth, etc.) Party Complaint Nature of Third-party Complaint A claim that a defending party may, with leave of court, file against a person not a party to the action, in respect of his opponent’s claim, for: a. Contribution; b. Indemnity; c. Subrogation; or d. Any other relief. (Sec. 11, Rule 6) The Rules permit defendant to bring in a third party defendant or so to speak, to litigate his separate cause of action in respect of plaintiff's claim against a third party in the original and principal case with the object of avoiding circuitry of action and unnecessary proliferation of lawsuits and of disposing expeditiously in one litigation the entire subject matter arising from one particular set of facts. (Development Bank of the Philippines v. Clarges Realty Corp., G.R. No. 170060, 2016) The defendant may implead another as thirdparty defendant: a. On an allegation of liability of the third-party defendant to the defendant for contribution, indemnity, subrogation or any other relief; b. On the ground of direct liability of the thirdparty defendant to the plaintiff; or c. The liability of the thirdparty defendant to both the plaintiff and the de A prerequisite to the exercise of such right is that some substantive basis for a third-party claim be found to exist, whether the basis be one of indemnity, subrogation, contribution or other substantive right. There must be a causal connection between the claim of the plaintiff in his complaint and a claim for contribution, indemnity or other relief of the defendant against the thirdparty defendant. (Asian Construction & Dev’t Corp v. CA, G.R. No. 160242, 2005) Denial of Admission of Third-party Complaint Under Rule 6, Sec. 11 of the 2019 Amendments, the third-party complaint shall be denied admission, and the court shall require the defendant to institute a separate action, where: a. The third-party defendant cannot be located within 30 calendar days from the grant of such leave; b. Matters extraneous to the issue in the principal case are raised; or c. The effect would be to introduce a new and separate controversy into the action. Causal Connection Between Third-party Complaint and Plaintiff’s Complaint There must be a causal connection between the claim of the plaintiff in his complaint and a claim for contribution, indemnity or other relief of the defendant against the third-party defendant. (Asian Construction & Dev’t Corp v. CA, G.R. No. 160242, 2005). Page 65 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 To check whether there is a causal connection, the Court made out the following tests: 1. Whether it arises out of the same transaction on which the plaintiff’s claim is based, or although arising out of another or different transaction, is connected with the plaintiff’s claim; 2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant; and 3. Whether the third-party defendant may assert any defenses that the third-party plaintiff has or may have to plaintiff’s claim. (Id.). Jurisdiction Over Third-party Defendant Summons on third, fourth etc.-party defendant must be served for the court to obtain jurisdiction over his person, since he is not an original party. (FERIA, 2013 Vol. 1, p. 333) Since the trial court had acquired jurisdiction over the complaint, it necessarily follows that it likewise had jurisdiction over the third-party complaint which is but an incident thereof. This must be so because jurisdiction over the main case embraces all incidental matters arising therefrom and connected therewith. (Republic v. Central Surety & Insurance Co., G.R. No. L-27802, October 26, 1968) Effect of Dismissal and Appeal of Complaint on Third-party Complaint If the complaint is dismissed, the third-party complaint will also necessarily be dismissed. If the plaintiff appeals, the third-party plaintiff should also appeal so that judgment could be rendered against third-party defendant. In this jurisdiction, the rule is pretty well-settled that a party who does not appeal from the decision may not obtain any affirmative relief from the appellate court other than what he has obtained from the lower court, if any, whose decision is brought up on appeal. (FERIA, 2013 Vol. 1, p. 337, citing Go v. Court of Appeals, G.R. No. L-25393, October 30, 1980) Bringing New Parties When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. (Sec. 12, Rule 6) Bringing New Parties vs. Third-party Complaint BRINGING NEW THIRD-PARTY PARTIES COMPLAINT Other necessary The third-party parties are brought in defendants are NOT when one or more of one of the parties to the defendants in a the main action. counterclaim or crossclaim is ALREADY a party to the action. (FERIA, 2013 Vol. 1, p. 338) Cross-claim vs. Complaint CROSS CLAIM Against a coparty No need for leave of court. Must arise out of the transaction that is the subject matter of the original action or of a counterclaim therein. Counterclaim vs. Third-party COUNTERCLAIM Against an opposing party. No need for leave of court. May arise out of or be necessarily connected with the transaction or that is the subject matter of the opposing party’s claim in which case, it is called a compulsory counterclaim, or it may not, in which case it is called a permissive counterclaim. 3RD PARTY COMPLAINT Against a person not a party to the action. Leave of court is required. Must be in respect of the opponent’s (plaintiff) claim. Page 66 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 f. Complaint-In-Intervention Nature of Intervention Intervention is a remedy by which a third party, who is not originally impleaded in a proceeding, becomes a litigant for purposes of protecting his or her right or interest that may be affected by the proceedings. (Neptune Metal Scrap Recycling, Inc. v. Manila Electric Co., G.R. No. 204222, July 4, 2016) If the purpose of the motion for intervention is to assert a claim against either or all of the original parties, the pleading shall be called a COMPLAINT-IN-INTERVENTION. Meanwhile, if the purpose is to unite with the defending party in resisting a claim against the latter, the pleading is called an ANSWER-IN-INTERVENTION. (Rule 19, Sec. 3) Intervention is not an absolute right but may be granted by the court when the movant shows facts which satisfy the requirements of the statute authorizing intervention. (Executive Secretary v. Northeast Freight Forwarders, Inc., G.R. No. 179516, March 17, 2009) The allowance or disallowance of a motion to intervene is within the sound discretion of the court. (Heirs of Restrivera v. De Guzman, G.R. No. 146540, July 14, 2004). Requisites for Intervention The intervention shall be allowed when: 1. A person has legal interest: a. In the matter in litigation; b. In the success of any of the parties; c. An interest against the parties; or d. He is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or an officer thereof. (Rule 19, Sec. 1, Mactan-Cebu International Airport Authority v. Heirs of Miñoza, G.R. No. 186045, Feb. 2, 2011) 2. The intervention will not unduly delay or prejudice the adjudication of the rights of the original parties; and 3. The intervenor’s rights may not be fully protected in a separate proceeding. REMEDIAL LAW (Asia's Emerging Dragon Corp. v. Department of Transportation and Communications, G.R. Nos. 169914 Mar. 24, 2008). Meaning of Legal Interest The interest contemplated by law must be actual, substantial, material, direct and immediate, and not simply contingent or expectant. It must be of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. (Asia's Emerging Dragon Corp. v. Department of Transportation and Communications, G.R. Nos. 169914 & 174166, Mar. 24, 2008) Procedure for Intervention 1. The motion for intervention must be filed before judgment (Rule 19, Sec. 2); 2. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (Rule 19, Sec. 2). 3. The answer to the complaint-in-intervention shall be filed within 15 calendar days from the notice of the order admitting the complaint-inintervention, unless otherwise fixed by the court. (Rule 19, Sec. 4). Effect of Dismissal of the Original Action on the Complaint-in-intervention It has been held that the simple fact that the trial court properly dismissed plaintiff’s action does not require dismissal of the action of the intervenor. An intervenor has the right to claim the benefit of the original suit and to prosecute it to judgment. The right cannot be defeated by dismissal of the suit by the plaintiff after the filing of the petition and notice thereof to the other parties. A person who has an interest in the subject matter of the action has the right, on his own motion, to intervene and become a party to the suit, and even after the complaint has been dismissed, may proceed to have any actual controversy established by the pleadings determined in such action. The trial court's dismissal of plaintiff's action does not require dismissal of the action of the intervenor. (Metropolitan Bank and Trust Co. v. Presiding Judge, RTC Manila, Br. 39, G.R. No. 89909, September 21, 1990) Page 67 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Client May Settle Even if Attorney Does Not Intervene in the Case A client has an undoubted right to settle her litigation without the intervention of the attorney, for the former is generally conceded to have exclusive control over the subject matter of the litigation and may at any time, if acting in good faith, settle and adjust the cause of action out of court before judgment, even without the attorney’s intervention. (Malvar v. Kraft Food Phils., Inc., G.R. No. 183952, 2013). g. Reply Nature of a Reply A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged in, or relating to, an actionable document. (Rule 6, Sec. 10). It is the responsive pleading to an answer. (RIANO, 2019, p. 367). The allegations in plaintiffs' reply were in answer to defendants' defenses, and the nature of plaintiffs' cause of action, as set forth in their complaint, was not and could not be amended or changed by the reply (Calo v. Roldan, G.R. No. L252, March 30, 1946) A reply to a counterclaim or cross-claim is improper. An answer thereto must be filed instead. (FERIA, 2013 Vol. 1, p. 327) When Filing of Reply is Allowed The plaintiff may file a reply only if the defending party attaches an actionable document to his or her answer. If the plaintiff wishes to interpose any claim arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. (Rule 6, Sec. 10) Actionable Document An actionable document is a document upon which an action or defense is based. (Rule 8, Sec. 7). A document is actionable when an action or defense is grounded upon such written instrument or document. (Asian Construction & Dev’t Corp. v. Mendoza, G.R. No. 176949, Jun. 26, 2012) REMEDIAL LAW Examples of an actionable document: i. Promissory note in an action for collection of sum of money; ii. Deed of mortgage in an action for foreclosure of mortgage; iii. Official receipt of payment on the part of a defendant raising payment as a defense. (RIANO, 2019, p. 310) Effect of Not Filing a Reply If a party does not file such reply, all the new matters alleged in the answer are deemed controverted or denied. No admission follows from the failure to file a reply. (Rule 6, Sec. 10) h. Extension Of Time To File Pleadings Extension is Allowed Only for Filing an Answer A defendant may, for meritorious reasons, be granted an additional period of not more than 30 calendar days to file an answer. A defendant is only allowed to file 1 motion for extension of time to file an answer. A motion for extension to file any pleading, other than an answer, is prohibited and considered a mere scrap of paper. (Sec. 11, Rule 11). The court, however, may allow any other pleading to be filed after the time fixed by the Rules. (Id.). 2. PLEADINGS ALLOWED IN SMALL CLAIMS CASES AND CASES COVERED BY THE RULE ON SUMMARY PROCEDURE a. Pleadings Allowed In Small Claims Cases Under the Revised Rules of Procedure for Small Claims Cases, the pleadings allowed in small claims cases are: i. Statement of Claims (Sec.6); ii. Response (Sec. 13); and iii. Counterclaim (Sec. 15). Procedure for Small-Claims Cases A small-claims action is commenced by filing with the court: 1. An accomplished and verified Statement of Claim in duplicate; 2. A Certification of Non-forum Shopping, Splitting a Single Cause of Action, and Page 68 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Multiplicity of Suits accompanying the Statement of Claim; and 3. Two (2) duly certified photocopies of the actionable document/s subject of the claim, as well as the affidavits of witnesses and other evidence to support the claim. (Sec. 6, Revised Rules of Procedure for Small Claims Cases, as amended) The plaintiff may join in a single statement of claim one or more separate small claims against a defendant provided that the total amount claimed, exclusive of interest and costs, does not exceed the jurisdictional amounts. (Sec. 8, Revised Rules of Procedure for Small Claims Cases, as amended) If the court finds no grounds for dismissal, it shall issue summons to the defendant accompanied by a copy of the Statement of Claim and documents submitted by the plaintiff, and a blank Response Form to be accomplished by the defendant. (Sec. 12, Revised Rules of Procedure for Small Claims Cases, as amended) The defendant shall file his Response within 10 days from the receipt of the summons and serve the same upon the plaintiff. It shall be accompanied by certified photocopies of the documents, as well as the affidavits of witnesses and other evidence to support his defense. (Sec. 13, Revised Rules of Procedure for Small Claims Cases, as amended) Any claim that the defendant has against the plaintiff shall be filed as a Counterclaim in the Response, if at the time the action is commenced, the defendant has a claim against the plaintiff that: 1. Is within the coverage of this Rule exclusive of interests and costs; 2. Arises out of the same transaction or event that is the subject matter of the plaintiff’s claim; 3. Does not require the joinder of third parties; and 4. Is not the subject of another pending action. (Sec. 15, Revised Rules of Procedure for Small Claims Cases, as amended) REMEDIAL LAW Prohibited Pleadings in Small Claims Cases The prohibited pleadings in small-claims cases are: i. Motion to dismiss the complaint; ii. Motion for a bill of particulars; iii. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; iv. Petition for relief from judgment; v. Motion for extension of time to file pleadings, affidavits or any other paper; vi. Memoranda; vii. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; viii. Motion to declare the defendant in default; ix. Dilatory motions for postponement; x. Reply and rejoinder; xi. Third-party complaints; and xii. Interventions. (Sec. 16, Revised Rules of Procedure for Small Claims Cases, as amended) Venue for Small-Claims Cases For small-claims cases, the regular rules of venue shall apply, to wit, at the election of the plaintiff, in the MeTC, MTCC, MTC, and MCTC: a. Where the plaintiff resides; b. Where the defendant resides; or c. Where he may be found, in the case of a nonresident defendant. However, if the plaintiff is engaged in the business of lending, banking and similar activities, in the city where the defendant resides, if the plaintiff has a branch in that city. (Sec. 7, Revised Rules of Procedure for Small Claims Cases, as amended) b. Pleadings Allowed By The Rules On Summary Procedure Allowed Pleadings in Summary-Procedure Cases The pleadings allowed in summary proceedings are: i. Complaint; ii. Compulsory Counterclaim pleaded in the Answer; iii. Cross-Claims pleaded in the Answer; and iv. Answers to the above pleadings. All pleadings shall be verified (Sec. 3, Revised Rule on Summary Procedure, as amended) Page 69 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Procedure for Cases Under Summary Procedure Should the court find that the case falls under summary procedure and there are no grounds for dismissal of the complaint, it shall then issue summons stating that the rules for summary procedure shall apply. (Sec. 4, Revised Rule on Summary Procedure, as amended) An answer shall then be filed within 10 days from the service of summons and serve a copy thereof to the plaintiff. (Sec. 5, Revised Rule on Summary Procedure, as amended) Defenses not pleaded are deemed waived except for lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer are likewise barred. (Sec. 5, Revised Rule on Summary Procedure, as amended) Answer to the counterclaims or cross-claims shall be filed and served within 10 days from the service of the answer in which they are pleaded. (Sec. 5, Revised Rule on Summary Procedure, as amended) Failure to file an answer the complaint within the reglementary period shall allow the court, motu propio, or on motion by the plaintiff, render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. (Sec. 6, Revised Rule on Summary Procedure, as amended) Prohibited Pleadings The prohibited pleadings in cases falling under summary procedure are: i. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the preceding section; ii. Motion for a bill of particulars; iii. Motion for new trial, or for reconsideration of judgment, or for opening of trial; iv. Petition for relief from judgment; v. Motion for extension of time to file pleadings, affidavits or any other paper; vi. Memoranda; REMEDIAL LAW vii. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; viii. Motion to declare the defendant in default; ix. Dilatory motions for postponement; x. Reply; xi. Third party complaints; and xii. Interventions. (Sec. 19, Revised Rule on Summary Procedure, as amended) 3. PARTS AND CONTENTS OF A PLEADING a. Caption The caption contains the following: 1. The name of the court; 2. The title of the action, which indicates: a. The names of all the parties to the original complaint or petition, but in subsequent pleadings, the name of the first party on each side with an indication that there are other parties shall be sufficient; and b. The parties’ respective participation in the case; 3. The docket number, if assigned. (Sec. 1, Rule 7). Insufficiency in form and substance, as a ground for dismissal of the complaint, should not be based on the title or caption, especially when the allegations of the pleading support an action. (Sps. Munsalud v. NHA, G.R. No. 167181, 2008) Body The body of the pleading sets forth: 1. Its designation; 2. The allegation of the party’s claims and defenses; 3. The relief(s) prayed for; and 4. The date of the pleading. (Sec. 2, Rule 7) The pleadings shall specify the relief sought, but it may add a general prayer for such further or other reliefs as may be deemed just or equitable. (Sec. 2(c), Rule 7). It is settled that courts cannot grant a relief not prayed for in the pleadings or in excess of what is being sought by the party. (Diona v. Balangue, G.R. No. 173559, January 7, 2013). Page 70 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Nevertheless, even without the prayer for a specific remedy, proper relief may be granted by the court if the facts alleged in the complaint and the evidence introduced so warrant. The prayer in the complaint for other reliefs equitable and just in the premises justifies the grant of a relief not otherwise specifically prayed for. (Prince Transport v. Garcia, G.R. No. 167291, 2011) Insufficiency in form and substance, as a ground for dismissal of the complaint, should not be based on the title or caption, especially when the allegations of the pleading support an action. (Sps. Munsalud v. NHA, G.R. No. 167181, 2008) b. Signature And Address Requirement of Signature The complaint must be signed by the plaintiff or counsel representing him/her indicating his/her address. (Sec. 3(a), Rule 7) The signature of the counsel constitutes a certification that he or she: 1. Has read the pleading and documents; and 2. That to best of his knowledge, information, and belief, and formed after an inquiry reasonable under the circumstances: i. The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; ii. The claims, defenses, and other legal contentions are warranted by existing law or jurisprudence, or by a non-frivolous argument for extending, modifying, or reversing existing jurisprudence; iii. The factual contentions have evidentiary support or if specifically, so identified, will likely have evidentiary support after availing of the modes of discovery; iv. The denials of factual contentions are warranted on the evidence or, if specifically, so identified, are reasonably based on belief or a lack of information. (Sec. 3(b), Rule 7) The court, upon motion or motu propio, and after notice and hearing, may impose an appropriate sanction or refer the disciplinary action to the proper office upon determination that any attorney, REMEDIAL LAW law firm, or party violated the above rule. (Sec. 3(c), Rule 7). A counsel's signature is such an integral part of a pleading that failure to comply with this requirement reduces a pleading to a mere scrap of paper totally bereft of legal effect. Thus, faithful compliance with this requirement is not only a matter of satisfying a duty to a court but is as much a matter of fidelity to one's client. A deficiency in this respect can be fatal to a client's cause. (Uy v. Maghari, III, A.C. No. 10525, Sep.r 1, 2015). c. Verification Requirement of Verification Generally, a pleading need not be verified or under oath except only when verification is required by a law or by a rule. (Sec. 4, Rule 7) How Verification is Made A pleading is verified by an affidavit of an affiant duly authorized to sign said verification. The affiant shall allege the following attestations: 1. The allegations in the pleading are true and correct based on his or her personal knowledge or based on authentic documents; 2. The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and 3. The factual allegations therein have evidentiary support or, if specifically, so identified, will likewise have evidentiary support after a reasonable opportunity for discovery. The signature of the affiant shall further serve as certification of the truthfulness of the allegations in the pleading. (Sec. 4, Rule 7). The authorization of the affiant to act on behalf of another party shall be attached to the pleading. (Sec. 4, Rule 7). Significance of Verification Verification is intended to assure that the allegations in the pleading have been prepared in good faith or are true and correct, not mere speculations. (Pfizer Inc. v. Galan, G.R. No. 143389, May 25, 2001) Page 71 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Effect of Lack of Verification A pleading which is required to be verified but lacks the proper verification shall be treated as an unsigned pleading which produces no legal effect and is dismissible. (Sec. 4, Rule 7). Furthermore, a pleading which requires a verification shall also be treated as an unsigned pleading if: a. It contains a verification based on “information and belief”; or b. It contains a verification based upon “knowledge, information, and belief”. However, it has been held that the requirement regarding verification of a pleading is formal, not jurisdictional—non-compliance with which does not necessarily render the pleading fatally defective. The court may order the correction of the pleading if verification is lacking or act on the pleading although it is not verified, if the attending circumstances are such that the strict compliance with the rules may be dispensed with in order that the ends of justice may thereby be served. (Republic v. Coalbrine International Philippines, Inc., G.R. No. 161838, 2010) d. Certification Against Forum Shopping Meaning of Forum Shopping The essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. It exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion in another, or when he institutes two or more actions or proceedings grounded on the same cause to increase the chances of obtaining a favorable decision. (Alonso v. Relamida, A.C. No. 8481, August 3, 2010). Three Ways of Committing Forum Shopping Forum shopping can be committed in 3 ways: a. Filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved (litis pendentia); b. Filing multiple cases based on the same cause of action and with the same prayer, the REMEDIAL LAW previous case having been resolved with finality (res judicata); and c. Filing multiple cases based on the same causes of action but with different prayers (splitting causes of action where the ground for dismissal is also either litis pendentia or res judicata). (In re: Ferrer, A.C. No. 8037, Feb. 17, 2016). Test to Determine Existence of Forum Shopping There is forum shopping when the following elements concur: 1. Identity of the parties or, at least, of the parties who represent the same interest in both actions; 2. Identity of the rights asserted and relief prayed for, as the latter is founded on the same set of facts; and 3. Identity of the two preceding particulars, such that any judgment rendered in the other action will amount to res judicata in the action under consideration or will constitute litis pendentia (PAL Employees Savings and Loan Association, Inc. v. Philippine Airlines, Inc., G.R. No. 161110, March 30, 2006) Otherwise stated, to determine forum shopping, the test is to see whether in the two or more cases pending, there is identity of parties, rights or causes of action, and reliefs sought.||| (Huibonhoa v. Concepcion, G.R. No. 153785,[August 3, 2006) Simultaneously pursuing an appeal (or motion for reconsideration) and a petition for annulment of judgment is an act of forum shopping. (City of Taguig v. City of Makati, G.R. No. 208393, Jun. 15, 2016) The rule against forum shopping was violated when petitioner filed its petition for Certiorari despite its pending appeal before the CTA. (PPA v. City of Davao, G.R. No. 190324, 2018) Certification Against Forum Shopping The certification against forum shopping is a statement executed by the plaintiff or the principal party under oath and must be signed by the party Page 72 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 himself/herself and not attorney. (Sec. 5, Rule 7) merely by his The certification against forum shopping is a sworn statement certifying the following matters: 1. That the party has not commenced any action or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency and, to the best of his/her knowledge, no such other action or claim is pending therein; 2. That if there is such other pending action or claim, a complete statement of the present status thereof; and 3. That if he/she should thereafter learn that the same or similar action or claim has been filed or is pending, he/she shall report that fact within 5 days therefrom to the court wherein his/her complaint or initiatory pleading was been filed. (Sec. 5, Rule 7) The authorization of the affiant to act on behalf of a party should be attached together with the pleading and the certification against forum shopping (Sec. 5, Rule 7) A certification against forum shopping signed by counsel is a defective certification that is equivalent to non-compliance with the requirement and constitutes a valid cause for the dismissal of the petition. (Ty-De Zuzuarregui v. Villarosa, G.R. No. 183788, 2010) The certificate of non-forum shopping is a mandatory requirement in filing a complaint and other initiatory pleadings asserting a claim or relief. (Sec. 5, Rule 7) Aside from a complaint, an initiatory pleading also includes: 1. Permissive counterclaim; 2. Cross-claim; 3. Third (fourth, etc.)-Party complaint; 4. Complaint-in-intervention; and 5.Petition or any application in which a party asserts his claim for relief. (A.M. No. 04-94) Effect of Failure Comply with the Rule on Certification Against Forum Shopping The failure to comply with the requirements is not curable by mere amendment of the pleading but shall be cause for dismissal of the case, without prejudice, unless otherwise provided. Dismissal shall be upon motion and after hearing. (Sec. 5, Rule 7) Willful and deliberate forum shopping shall be a ground for summary dismissal and shall constitute direct contempt as well as a cause for administrative sanctions. (Id.). Submission of false certification or noncompliance with the undertakings therein shall constitute indirect contempt of court, without prejudice to corresponding administrative and criminal actions. (Id.). If the forum shopping is not willful and deliberate, the subsequent cases shall be dismissed without prejudice on one of the two grounds mentioned above. But if the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice. (Heirs of Sotto v. Palicte, G.R. No. 159691, 2014). In order to be held liable for willful and deliberate forum shopping, there should be, on the party’s part, either a failure to include the certification in one's initiatory pleading, or a misrepresentation as to the pendency of another case involving the same issues, parties, and causes of actions with the second complaint. But where plaintiff files his second complaint, after the court with jurisdiction over the first complaint had granted a dismissal order, and such dismissal order has attained finality, the plaintiff cannot be made liable for forum shopping. (Daswani v. BDO Universal, G.R. No. 190983, 2015). Summary of Violations and the Corresponding Sanctions Under Sec. 5, Rule 7 VIOLATION SANCTION Failure to comply with the requirements of a certificate of nonforum shopping. Submission of false certification or noncompliance with certification undertaking Cause for dismissal without prejudice, unless otherwise provided Indirect contempt of court, without prejudice to corresponding Page 73 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Willful and deliberate forum shopping administrative and criminal actions Summary dismissal with prejudice, direct contempt, administrative sanctions Requirement of a Corporation Executing the Verification/ Certification of Non-Forum Shopping The certification may be executed by an authorized person as long as he/she is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification against forum shopping, the certification may be signed by the authorized lawyer. (National Steel Corporation v. CA, G.R. No. 134468, 2002) If the petitioner is a corporation, a board resolution authorizing a corporate officer to execute the certification against forum shopping is necessary—a certification not signed by a duly authorized person renders the petition subject to dismissal. (Gonzales v. Climax Mining Ltd., 452 SCRA 607, 2005) Where a general manager of a corporation signs the verification and certification against forum shopping without attaching therewith a corporate secretary’s certificate or board resolution that he is authorized to sign for and on behalf of the petitioner-corporation, such failure is not fatal to the complaint of the corporation. This is especially true where the requisite board resolution was subsequently submitted to the court together with the pertinent documents. The dismissal on a purely technical ground is frowned upon especially if it will result in unfairness. The rules of procedure ought not to be applied in a very rigid, technical sense for they have been adopted to help secure, not override, substantial justice. (Mid-land Pasig Land Development Co. v. Mario Tablante, G.R. No. 162924, 2010) There is substantial compliance with the Rules regarding the need for an authorized person to sign the certificate when a corporate officer, previously empowered via board resolution to sign the certification against forum shopping, executes a special power of attorney in favor of a manager of the corporation, and it is the latter who signs the verification and certificate against forum shopping. In other words, the power granted by a corporation to a corporate officer to sign the verification and certificate may be further delegated, via special power of attorney, to another. (Fuji Television Network v. Espiritu, G.R. No. 204944-45, 2014). . Verification and Certification Against Forum Shopping When Petitioner is a Government Entity Where the petitioner is a government entity created by the Constitution, and headed by its Chairman, there is no need for the Chairman himself to sign the verification. Its representative, lawyer or any person who personally knew the truth of the facts alleged in the petition could sign the verification. HOWEVER, with regard to the certification of nonforum shopping, the established rule is that it must be executed by the plaintiff or any of the principal parties and not by counsel. Failure to show such authority to execute the petition on behalf of the plaintiff or principal party renders the petition dismissible. (People v. Iroy, G.R. No. 187743, 2010). Differentiating the Rules on Verification and Certificate Against Forum Shopping VERIFICATION Non-compliance or a defect therein does not necessarily render the pleading fatally defective. The court may order its submission, correction or act on the pleading depending on the attending circumstances. CERTIFICATE AGAINST FORUM SHOPPING Non-compliance or a defect therein, is generally not curable by its subsequent submission or correction thereof, unless there is a need to relax the Rule on the ground of "substantial compliance" or presence of "special circumstances or compelling reasons. Page 74 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint signs the verification. Must be signed by all the plaintiffs in a case; those who did not sign will be dropped as parties. Under justifiable circumstances, however, as when all the plaintiffs or petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them substantially complies with the Rule. (Fuji Television Network v. Espiritu, G.R. No. 204944-45, 2014). e. Contents of a pleading The following are the contents of a pleading: 1. Designation of the pleading; 2. Allegation of the party’s claims and defenses; 3. Reliefs prayed for; 4. Date of the pleading (Sec. 2, Rule 7); 5. Names of witnesses who will be presented to prove a party’s claim or defense; 6. Summary of the witnesses’ intended testimonies, as supported by judicial affidavits attached to the pleading; and 7. Documentary and object evidence in support of the allegations contained in the pleading. (Sec. 6, Rule 7) Only witnesses whose judicial affidavits are attached in the pleading shall be presented by the parties during trial, except if a party presents meritorious reasons as basis for the admission of additional witnesses. (Sec. 6, Rule 7) 4. ALLEGATIONS IN A PLEADING a. Manner Of Making Allegations REMEDIAL LAW evidence on which the party pleading relies for his or her claim or defense, as the case may be. (Sec. 1, Rule 8). If a cause of action or defense relied on is based on law, the pertinent provisions thereof and their applicability to him or her shall be clearly and concisely stated. (Id.). The allegations must also be supported by their respective documentary and object evidence. (Sec. 6, Rule 7). Ultimate Facts The ultimate facts are the facts essential to a party’s cause of action or defense, or such facts as are so essential that they cannot be stricken out without leaving the statement of the cause of action inadequate. They are to be stated in a methodical and logical form, and in a plain, concise, and direct manner. (RIANO, 2019, p. 280) Ultimate facts refer to the principal, determinative, constitutive facts upon the existence of which the cause of action rests. The term does not refer to details of probative matter or particulars of evidence which establish the material ingredients. (Philippine Bank of Communications v. Trazo, G.R. No. 165500, Aug. 30, 2006). Test of Sufficiency of Facts Alleged in the Complaint to Constitute a Cause of Action The test of sufficiency of the facts alleged in a complaint to constitute a cause of action is whether, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer of the petition or complaint. To determine whether the complaint states a cause of action, all documents attached thereto may, in fact, be considered, particularly when referred to in the complaint. But the consideration of the annexed documents should only be taken in the context of ascertaining the sufficiency of the allegations in the complaint. (Lazaro v. Brewmaster International, Inc., G.R. No. 182779, Aug. 23, 2010). Manner of Making Allegations in General Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts, including the Page 75 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 What are NOT Ultimate Facts: i. Evidentiary or immaterial facts (Id.); ii. Legal conclusions, conclusions or inferences of facts not stated, or incorrect inferences or conclusions from facts stated (Dalandan v. Julio, G.R. No. L-19101, Feb. 29, 1964); iii. The details of probative matter or particulars of evidence, statements of law, inferences and arguments (Biñan Rural Bank v. Carlos, G.R. No. 193919, June 15, 2015], 759 PHIL 416422); or iv. An allegation that a contract is valid or void is a mere conclusion of law (Cañete v. Genuino Ice Co., Inc., G.R. No. 154080, Jan. 22, 2008). Evidentiary Facts Evidentiary facts are those which are necessary to prove the ultimate fact or which furnish evidence of the existence of some other facts. (Locsin v. Sandiganbayan, G.R. No. 134458, Aug. 9, 2007) i. Condition precedent Nature of a Condition Precedent Conditions precedent are matters which must be complied with before a cause of action arises. (RIANO, 2019, p. 304). The characteristic of a condition precedent is that the acquisition of the right is not effected while said condition is not complied with or is not deemed complied with. (Parks v. Tarlac, G.R. No. 24190, Jul. 13, 1926) REMEDIAL LAW How to Allege Fraud or Mistake In averments of fraud or mistake, the circumstances constituting such fraud or mistake must be stated with particularity. (Sec. 5, Rule 8) How to Allege Malice, Intent, or Other Conditions of the Mind Malice, intent, knowledge or other conditions of the mind of a person may be averred generally. (Id.) How to Plead a Judgment In pleading a judgment, it is sufficient to aver the judgment or decision without alleging matters showing the jurisdiction to render judgment or decision. (Sec. 6, Rule 8). Note that jurisdiction is merely a disputable presumption and not conclusive. (Sec. 3 (n), Rule 131). Hence, lack of jurisdiction may be used as an affirmative defense (Sec. 5 (b), Rule 6) or as a ground for a motion to dismiss (Sec. 12 (a)(1), Rule 15). It is required to attach an authenticated copy of the judgment or decision together with the pleading. (Sec. 6, Rule 8). How to Plead an Official Document or Act In pleading an official document or act, it is sufficient to aver that the official document or the act was issued or done in compliance with law. (Sec. 9, Rule 8) How Are Conditions Precedent Alleged A general averment of the performance or occurrence of all conditions precedent shall be sufficient. (Sec. 3, Rule 8) The written official acts, or records of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country are considered public documents. (Sec. 19 (a), Rule 132). Effect of Failure to Comply with a Condition Precedent The defendant may raise as an affirmative defense the failure of the plaintiff to comply with a condition precedent for filing the claim. (Sec. 12 (a)(5), Rule 8). Public documents are admissible in evidence without further proof of their due execution and genuineness, and has, in their favor, the presumption of regularity (Pen Development Corporation v. Martinez Leyba, Inc., G.R. No. 211845, Aug. 9, 2017). ii. Fraud, Mistake, Malice, Intent, Knowledge And Other Condition Of The Mind, Judgments, Official Documents, And Acts Capacity to Sue Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence Page 76 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 of an organized association of persons that is made a party, must be averred. (Sec. 4, Rule 8) Example: i. If X is suing on behalf of Y as an agent, the fact of Y being an agent must be alleged; ii. If a corporation is to sue, its due incorporation in accordance with the law must be duly alleged. (RIANO, 2019, p. 306). Facts That May be Averred Generally i. Conditions precedent (BUT there must still be an allegation that the specific condition precedent has been complied with, otherwise, it will be dismissed); (Sec. 3, Rule 8) ii. Capacity to sue or be sued; (Sec. 4, Rule 8) iii. Capacity to sue or be sued in a representative capacity; (Sec. 4, Rule 8) iv. Legal existence of an organization; (Sec. 4, Rule 8) v. Malice, intent, knowledge, or other condition of the mind; (Sec. 5, Rule 8) vi. Judgments of domestic or foreign courts, tribunals, boards, or officers (no need to show jurisdiction); and (Sec. 6, Rule 8) vii. Official document or act. (Sec. 9, Rule 8) Alternative Causes of Action or Defenses A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. (Sec. 2, Rule 8). For example, a plaintiff may raise in the alternative that the liability of the defendant may be based on either a quasi-delict or a breach of contract even though he is not yet certain which of the causes of action will fit the set of facts alleged in the complaint. (RIANO, 2019, p. 307). Note that defenses may also be raised in the alternative. This is consistent with the Omnibus Motion Rule. (Sec. 9, Rule 15). When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (Sec. 2, Rule 8). REMEDIAL LAW b. Pleading An Actionable Document In pleading an actionable document, the pleader must: 1. Set forth in the pleading the substance of the instrument or the document, and 2. Attach the original or the copy of the document to the pleading as an exhibit and which shall form part of the pleading, (Sec. 7, Rule 8). Note that under the 2019 Amendments, an original or a copy of the actionable document must be attached to the pleading. It can no longer be merely set forth in the pleading. How to Contest an Actionable Document An actionable document can be contested: 1. By specific denial under oath; and 2. By setting forth what is claimed to be the facts. (Sec. 8, Rule 8). If the defending party attaches an actionable document to his or her answer, the plaintiff may file a reply. (Sec. 10, Rule 6). In current usage, the requirement that the denial must be under oath means that the denial must be verified. (RIANO, 2019, p. 310). Specific denial under oath is not required when: a. The adverse party does not appear to be a party to the instrument; or b. The compliance with an order for an inspection of the original instrument is refused. (Sec. 8, Rule 8). Effect of Failure to Properly Contest an Actionable Document Save for the aforementioned exceptions, failure to specifically deny under oath an actionable document results in the admission of the genuineness and due execution of the instrument by the adverse party. (Sec. 8, Rule 8) Thus, where the defense in the answer is based on an actionable document, a reply specifically denying it under oath must be made; otherwise, the genuineness and due execution of the document will be deemed admitted. (Casent Realty v. Philbanking, G.R. No. 150731, 2007). Page 77 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Note: under the 2019 Amendments, a reply is filed only when an actionable document is attached in the answer. (Sec. 10, Rule 6). Admission of Genuineness and Due Execution By the admission of the genuineness and due execution of an instrument is meant that the party whose signature it bears admits that he signed it or that it was signed by another for him with his authority; that at the time it was signed it was in words and figures exactly as set out in the pleading of the party relying upon it; that the document was delivered; and that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him. (Hibberd v. Rohde, G.R. No. 8418, Dec. 9, 1915). GENUINENESS DUE EXECUTION Means that the document is not spurious, counterfeit, or of different import on its face from the one executed by the party; that the party whose signature it bears has signed it; or that at the time it was signed, it was in words and figures exactly as set out in the pleadings. Means that the document was signed voluntarily and knowingly by the party whose signature appears thereon; if signed by somebody else, such representative had the authority to do so; and it was duly delivered, and that the formalities were complied. (FERIA, 2013, p. 358-359). Defenses Cut Off by the Admission of Genuineness and Due Execution By the admission of the genuineness and due execution of the instrument, the following defenses are waived: 1. Forgery in the signature; 2. Lack of authority or capacity to execute the document; 3. Want of delivery; or 4. At the time the document was signed, it was not in words and figures exactly as set out in the pleading. (Hibberd v. Rohde, G.R. No. 8418, Dec. 9, 1915). Defenses Not Cut Off by the Admission of Genuineness and Due Execution i. Payment or non-payment; ii. Want or illegality of consideration; iii. Fraud; iv. Mistake v. Usury; (Id.) vi. Prescription; vii. Release; viii. Statute of Frauds; ix. Estoppel; x. Former Recovery or Discharge; and xi. Bankruptcy. (RIANO, 2019, p. 313, 330, citing Acabal v. Acabal, G.R. No. 148376, Mar. 31, 2005). Failure to specifically deny under oath the genuineness and due execution of an actionable document generally implies an admission of the same by the other party. However, such implied admission is deemed waived if the party asserting the same has allowed the adverse party to present evidence contrary to the contents of such document without objection. (Central Surety v. Hodges, G.R. No. L-28633, 1971). c. Specific Denials How Made and Purpose A specific denial is made by specifying each material allegation of fact, the truth of which the defendant does not admit and, whenever practicable, setting forth the substance of the matters upon which he/she relies to support his/her denial. (Sec. 10, Rule 8; UA vs. Wallem Philippines Shipping, Inc G.R. No. 171337. July 11, 2012). The purpose of requiring the defendant to make a specific denial is to make him disclose the matters alleged in the complaint which he succinctly intends to disprove at the trial, together with the matter which he relied upon to support the denial. (Aquintey vs. Tibong, G.R. No. 166704, Dec. 20, 2006, see Rule 8, Sec. 10). Page 78 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW Three Types of Specific Denial Under Rule 8, Sec.10, there are three modes of specific denial: i. Absolute Denial - by specifying each material allegation of the fact in the complaint, the truth of which the defendant does not admit, and whenever practicable, setting forth the substance of the matters which he will rely upon to support his denial; ii. Partial Denial - by specifying so much of an averment in the complaint as is true and material and denying only the remainder (Partial Denial); and iii. Denial by Disavowal of Knowledge - by stating that the defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment in the complaint, which has the effect of a denial. (Republic v. Gimenez, G.R. No. 174673, Jan. 11, 2016). Where an answer states that the defendants “specifically deny the allegations in pars. 2 and 3 of the complaint for want of knowledge or information sufficient to form a belief as to the truth thereof, the truth of the matter being those alleged in the special and affirmative defenses of the defendants...," this is considered a valid denial, as the explanation is said to be provided for in the affirmative and special defenses. (Gaza v. Lim, G.R. No. 126863, Jan. 16, 2003). Examples: i. Absolute Denial – “Defendant denies the truth of the allegation in par. 7 of the complaint that he owes the plaintiff P450,000; the truth is that the plaintiff is the one who owes the defendant the same amount.” ii. Partial Denial – “Defendant admits the allegations in par. 5 of the complaint that plaintiff sustained injuries in a collision with the former’s car but denies that the collision was through the defendant’s fault.” iii. Denial by Disavowal of Knowledge – In a complaint for collection of a sum of money, the complaint duly pleaded a promissory note as an actionable document. Defendant did not sign the note and thus denied knowledge of the note in good faith. (RIANO, 2019, p. 326-327). The answer should be so definite and certain in its allegations that the pleader's adversary should not be left in doubt as to what is admitted, what is denied, and what is covered by denials of knowledge as sufficient to form a belief. (Republic v. Spouses Gimenez, G.R. No. 174673, Jan. 11, 2016). But the rule, which specifically authorizes an answer of the defendant that he has no knowledge or information sufficient to form a belief to the truth of an averment and which would have an effect of a denial, does not apply where the fact as to which want of knowledge is asserted is to the knowledge of the court as plainly and necessarily within the defendant’s knowledge that his averment of ignorance must be palpably untrue. (Warner Barnes v. Reyes, G.R. No. L-9531, May 14, 1958). i. Effect Of Failure To Make A Specific Denial General Rule on Effect of Failure to Make or Absence of Specific Denial Failure to make a specific denial will be considered an admission of the material averments in a pleading asserting a claim or claims. (Sec. 11, Rule 8). The purpose of requiring specific denials from the defendant is to make the defendant disclose the matters alleged in the complaint which he [or she] succinctly intends to disprove at the trial, together with the matter which he [or she] relied upon to support the denial. (Id.). Matters Not Deemed Admitted Notwithstanding the absence of a specific denial, the following are not deemed admitted: 1. Allegations as to the amount of unliquidated damages; 2. Allegations immaterial as to the cause of action; and 3. Conclusions of law and fact in a pleading. (Sec. 8, Rule 11; RIANO, 2019, p. 331;). Conclusions of Law A “conclusion of law" is defined as a proposition not arrived at by any process of natural reasoning from a fact or combination of facts stated but by the application of the artificial rules of law to the Page 79 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 facts pleaded. (Siquian v. People, G.R. No. 82197, Mar. 13, 1989). REMEDIAL LAW ii. When A Specific Denial Requires An Oath A pleading should state the ultimate facts essential to the rights of action or defense asserted, as distinguished from mere conclusions of fact, or conclusions of law. General allegations that a contract is valid or legal, or is just, fair and reasonable, are mere conclusions of law. Likewise, allegations that a contract is void, voidable, invalid, illegal, ultra vires, or against public policy, without stating facts showing its invalidity, are mere conclusions of law. (Abad v. Court of First Instance of Pangasinan, Branch VIII, G.R. Nos. 58507-08, February 26, 1992). When Oath is Required in a Specific Denial When an action or defense is based on an actionable document, the denial must be under oath and must set forth what he or she claims to be the facts. (Sec. 8, Rule 8) Labelling an obligation to have prescribed without specifying the circumstances behind it is a mere conclusion of law. (Mercene v. Government Service Insurance System, G.R. No. 192971, January 10, 2018). d. Affirmative Defenses General Denial Amounting to Admission A general denial is one which puts in issue all the material averments of the complaint or petition and permits the defendant to prove any and all facts which tend to negate those averments or someone or all of them. (Loyola vs. House of Representatives Electoral Tribunal, G.R. No. 109026, Jan. 4, 1994). The 2019 Amendments do not require anymore that allegations of usury in a complaint to recover usurious interest be denied under oath. See prior discussions on Denial of an Actionable Document. Definition An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant would nevertheless prevent or bar recovery by him. (Sec. 5(b), Rule 6) Before an allegation qualifies as an affirmative defense, it must be of such nature as to bar the plaintiff from claiming on his cause of action (Pesane Animas Mongao v. Pryce Properties Corp., G.R. No. 156474, 2005) A general denial does not become specific by the use of the word "specifically." When matters of whether the defendant alleges having no knowledge or information sufficient to form a belief are plainly and necessarily within the defendant’s knowledge, an alleged "ignorance or lack of information" will not be considered as a specific denial. (Republic v. Gimenez, G.R. No. 174673, Jan. 11, 2016). Classification of Affirmative Defenses Under the 2019 Amendments, the affirmative defenses can be classified into three groups: i. Affirmative defenses under the first paragraph of Section 5 (b) of Rule 6; ii. Affirmative defenses under the second paragraph of Section 5 (b) of Rule 6; and iii. Affirmative defenses under Section 12 (a), Rule 8. Negative Pregnant Amounting to Admission It is a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at. (Marcos, Jr. v. PCGG, G.R. No. 189434, April 25, 2012) Affirmative Defenses Under the First Paragraph of Section 5 (b) of Rule 6 The affirmative defenses under the first paragraph of Section 5 (b) of Rule 6 are: 1. Fraud; 2. Statute of limitations (Prescription); 3. Release; 4. Payment; 5. Illegality; 6. Statute of frauds; Page 80 of 711 Note: See prior discussions on Negative Pregnant. ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 7. Estoppel; 8. Former recovery; 9. Discharge in bankruptcy; and 10. Any other matter by way of confession and avoidance. In resolving the above affirmative defenses, the court may conduct a summary hearing within 15 calendar days from the filing of the answer. Such affirmative defenses shall be resolved by the court within 30 calendar days from the termination of the summary hearing. (Sec. 12 (d), Rule 8). Affirmative Defenses Under the Second Paragraph of Section 5 (b) of Rule 6 The affirmative defenses under the second paragraph of Section 5 (b) of Rule 6 are: 1. That the court has no jurisdiction over the subject matter; 2. That there is another action pending between the same parties for the same cause; 3. That the action is barred by prior judgment. Under the 2019 Amendments, the above affirmative defenses, including prescription, are also the grounds for a motion to dismiss under Section 12 (a) of Rule 15. Affirmative Defenses Under Section 12 (a) of Rule 8 The affirmative defenses under Section 12 (a) of Rule 8 are: 1. That the court has no jurisdiction over the person of the defending party; 2. That venue is improperly laid; 3. That the plaintiff has no legal capacity to sue; 4. That the pleading asserting the claim states no cause of action; and 5. That a condition precedent for filing the claim has not been complied with. As to the above affirmative defenses, the court shall motu propio resolve them within 30 days from the filing of the answer. (Sec. 12 (c), Rule 8). Effect of Failure to Raise Affirmative Defenses Failure to raise the affirmative defenses at the earliest opportunity shall constitute waiver thereof. (Sec. 12 (b), Rule 8). Exception: The following affirmative defenses are not deemed waived: 1. The court has no jurisdiction over the subject matter; 2. There is another action pending between the same parties for the same cause; 3. The action is barred by a prior judgment; or 4. The action is barred by the statute of limitations. (Sec. 1, Rule 9). When the above grounds appear from the pleadings or from the evidence on record, the court shall dismiss the claim motu propio. (Id; (Heirs of Valientes v. Ramas, G.R. No. 157852, Dec. 15, 2010). However, the ground for dismissal must be evident from the pleadings or from the evidence on record before a Court can dismiss a case motu proprio (De Leon v. Chu, G.R. No. 186522 Sep. 2, 2015). Summary of Affirmative Defenses Under Rule Under Rule Under Sec. 6, Sec. 5(b) 6, Sec. 5(b) 12 (a), Rule 8 par. 1 par. 2 1. Fraud; 2. Lack of 1. Lack of 2. Statute of jurisdiction jurisdiction limitations; over the over the 3. Release; subject person of the 4. Payment; matter; defendant 5. Illegality; 2. Res 2. Improper 6. Statute of judicata; venue; frauds; 3. Litis 3. Lack of 7. Estoppel; pendentia capacity to 8. Former sue of the recovery; plaintiff; 9. Discharge 4. Failure to in bankruptcy; state a cause and of action; 10. Any other 5. Nonmatter by way compliance of confession with condition and precedent avoidance. Court may conduct a summary hearing within 15 days from Resolved by the court motu propio when the grounds (including Resolved by the court motu propio within 30 days from Page 81 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Under Rule 6, Sec. 5(b) par. 1 filing the answer and resolve the same within 30 days from the termination of the summary hearing. Affirmative defenses not a ground for a motion to dismiss except for statute of limitations/ prescription. Under Rule 6, Sec. 5(b) par. 2 prescription) appear from the pleadings or the evidence on record. Affirmative defenses are grounds for a motion to dismiss. Under Sec. 12 (a), Rule 8 filing answer. the Affirmative defenses not a ground for a motion to dismiss. Striking Out of Pleading or Matter Contained Therein The court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (Sec. 13, Rule 8). When Can Striking Out be Made a. Upon motion by a party before responding to a pleading; b. Upon motion by a party within 20 days after service of the pleading upon him if no responsive pleading is permitted; or c. Upon court’s own initiative at any time. (Id.). 5. EFFECT OF FAILURE TO PLEAD a. Failure To Plead Defenses And Objections Effect of Failure to Plead Defenses and Objections Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. (Sec. 1, Rule 9). Grounds Not Deemed Waived Failure to plead the following defenses does not result in their waiver: i. Lack of jurisdiction over the subject matter; ii. Litis pendentia; iii. Res judicata iv. Prescription or Statute of limitations. (Id.). While not included in the above enumeration under Section 1, Rule 9 of the Rules of Court, the Court has ruled in previous cases that laches need not be specifically pleaded and may be considered by the court on its own initiative in determining the rights of the parties. (Heirs of Valientes v. Ramas, G.R. No. 157852, Dec. 15, 2010). Lack of jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal. Exception: Estoppel by laches (Tijam Sibonghanoy, G.R. No. L-21450, 1968) v. See prior discussion on Effect of Failure to Raise Affirmative Defenses regarding defenses not deemed waived. b. Failure To Plead A Compulsory Counterclaim Or Cross-Claim Effect of Failure to Set Up Counterclaim or Cross-Claim A compulsory counterclaim, or cross-claim, not set up at the time a defending party files his answer, shall be BARRED. (Sec. 2, Rule 9). Note, however, that this applies to a compulsory counterclaim. A permissive counterclaim will not be barred. (RIANO, 2019, p. 356). How to Set Up Omitted Counterclaim or Crossclaim An AMENDED ANSWER is proper if the counterclaim or cross claim ALREADY EXISTED at the time the original answer was filed, but due to oversight, inadvertence, or excusable neglect, it was not set up. (Sec. 10, Rule 11; FERIA, 2013, p. 379). Page 82 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 A SUPPLEMENTAL ANSWER is proper if the counterclaim or cross-claim matures or is acquired AFTER the answer is filed. (Sec. 9, Rule 11; FERIA, 2013, p. 379). See prior discussions on Counterclaims and Cross-claims 6. DEFAULT Nature of Default Default is a procedural concept that occurs when the defending party fails to file his answer within the reglementary period. It does not occur from the failure of the defendant to attend either the pre-trial or the trial. (RIANO, 2019, p.333). A declaration or order of default is issued as a punishment for unnecessary delay in joining issues. In such event, defendants lose their standing in court, and they cannot expect the trial court to act upon their pleadings. (Vlason Enterprises Corp. v. Court of Appeals, G.R. Nos. 121662-64, Jul. 6, 1999). The defendant’s non-appearance in the hearing and the failure to adduce evidence does NOT constitute default when an answer has been filed within the reglementary period. Instead, it amounts to a waiver of the defendant’s right to object to the evidence presented during such hearings and to cross-examine the witness presented. (Monzon v. Sps Relova v. Addio Properties, G.R. No. 17182, 2008) a. When A Declaration Of Default Is Proper Declaration of Default If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. (Sec. 3, Rule 9). An answer is to be filed by the defendant within 30 days after service of summons, unless the court fixes a different period. (Sec. 1, Rule 11). Filing a motion to dismiss or a motion for a bill of particulars will interrupt the running of the period REMEDIAL LAW to file an answer. Thus, if these two motions are filed, a defendant may NOT be declared in default pending the resolution of these two motions. (see Sec. 5, Rule 12; Spouses Barraza v. Campos, Jr., G.R. No. L-50437, Feb. 28, 1983). Extension of Time to File an Answer Under the 2019 Amendments, a defendant may, for meritorious reasons, be granted an additional period of not more than 30 days to file an answer. A defendant is only allowed to file one motion for extension of time to file an answer. (Sec. 11, Rule 11). Admission of Answer Filed Out of Time When there is no declaration of default yet, the answer may be admitted even if filed out of time. The rule is that the defendant's answer should be admitted where it is filed before a declaration of default and no prejudice is caused to the plaintiff. Where the answer is filed beyond the reglementary period but before the defendant is declared in default and there is no showing that defendant intends to delay the case, the answer should be admitted. (Spouses Lumanas v. Sablas, G.R. No. 144568, Jul. 3, 2007). Requisites Before a Party May be Declared in Default: 1. The court has validly acquired jurisdiction over the person of the defending party, either by service of summons or voluntary appearance; 2. The defending party failed to file the answer within the time allowed therefore; 3. The claiming party must file a motion to declare the defending party in default; 4. The claiming party must prove that the defending party has failed to answer within the period provided by the Rules of Court; 5. The defending party must be notified of the motion to declare him in default; 6. There must be a hearing of the motion to declare the defending party in default. (FERIA, 2013 p. 383, citing Sps. Delos Santos v. Carpio, G.R. No. 153696, Sep. 11, 2006). The default of the defending party cannot be declared motu proprio. (Momarco Import Co., Inc. v. Villamena, G.R. No. 192477, Jul. 27, 2016). Page 83 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Two Stages of Default 1. Declaration or Order of Default; and 2. Rendition of Judgment by Default (Sec. 3, Rule 9). General Rule: A default order and consequently, a default judgment are triggered by the failure to file the required answer by the defending party. (Id.). Exceptions: Despite an answer being filed, a JUDGMENT BY DEFAULT may still be rendered in the following circumstances: a. If a party refuses to obey an order requiring him to comply with the various modes of discovery (Sec. 3 (c), Rule 29); or b. If a party or officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition (Sec. 5, Rule 29). But note that the failure to attend the pre-trial does not result in the “default” of the defendant. Instead, the failure to attend shall be cause to allow the plaintiff to present evidence ex parte and for the court to render judgment on the basis thereof. (RIANO, 2019, p. 334, citing Aguilar v. Lightbringers Credit Cooperative, G.R. No. 209605, Jan. 12, 2015). While the effect of the failure of the defendant to appear at the pre-trial is similar to that of default, this consequence is not to be called “declaration of default.” (Id.) Order of Default vs. Judgment by Default ORDER OF JUDGMENT BY DEFAULT DEFAULT Issued by the court Rendered by a court upon plaintiff’s motion after a default order for failure of the has been issued or defendant to file his after it has received, responsive pleading ex parte, plaintiff’s within the evidence. reglementary period. Bars the party in Grants the claimant default from the relief his pleading participating in trial, may warrant, unless but he is entitled to the court requires him to submit evidence, notices of subsequent proceedings. but it shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. Final Order – Appealable. Interlocutory Order – Not appealable through ordinary appeal. (Sec. 3, Rule 9; Manila Electric Co. v. La Campana Food Products, Inc., G.R. No. 97535, Aug. 4, 1995). b. Effect Of An Order Of Default Effects of an Order of Default Once a party has been declared in default, he shall not take part in the trial, but he shall be entitled to notices of subsequent proceedings. (Sec. 3 (a), Rule 9). A defendant declared in default loses his or her standing in court. He or she is deprived of the right to take part in the trial and forfeits his or her rights as a party litigant, has no right to present evidence supporting his or her allegations, and has no right to control the proceedings or cross-examine witnesses. Moreover, he or she has no right to expect that the court would act upon his or her pleadings, or that he or she may oppose motions filed against him or her. (Lui Enterprises, Inc. v. Zuellig Pharma Corp., G.R. No. 193494, Mar. 12, 2014). While the defendant can no longer take part in the trial, he is nevertheless entitled to notices of subsequent proceedings. He may participate in the trial not as a party but as a witness. (Cavili v. Florendo, G.R. No. 73039, Oct. 9, 1987). Notices Which Party in Default is Entitled To 1. Motion to declare him in default; 2. Order declaring him in default; 3. Subsequent proceedings; and 4. Service of final orders and judgments. (Sec. 3, Rule 9). Page 84 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Options of the Court After Declaration of Default The court, upon its own discretion may: a. Proceed to render judgment; OR b. Require the plaintiff to present his evidence ex parte according to judicial discretion. The reception of the evidence may be done by the court or delegated to the clerk of court. (Id.). A declaration of default is NOT an admission of the truth or the validity of the plaintiff’s claims. (Monarch Insurance v. CA, G.R. No. 92735, Jun. 8, 2000) Complainants are not automatically entitled to the relief prayed for, once the defendants are declared in default. Favorable relief can be granted only after the court has ascertained that the relief is warranted by the evidence offered and the facts proven by the presenting party. Quantum of proof of plaintiff remains the same even with defendant’s default. (Gajudo v. Traders Royal Bank, G.R. No. 151098, Mar. 21, 2006). c. Relief From An Order Of Default Remedies of a Party Declared in Default 1. After notice of order of default but before judgment: motion under oath to set aside order of default when failure to answer is based on fraud, accident, mistake, excusable negligence and the defendant has a meritorious defense (Sec. 3 (b), Rule 9). 2. After judgment but before it becomes final and executory: motion for new trial (Sec. 1 (a), Rule 37); or appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him (Sec. 2, Rule 41); 3. After the judgment has become final and executory: petition for relief (Sec. 1, Rule 38) 4. After an improvident declaration of default: Petition for certiorari to declare the nullity of a judgment by default is also available if the trial court improperly declared a party in default, or even if the trial court properly declared a party in default, if grave abuse of discretion attended such declaration. (Gomez v. Montalban, G.R. No. 174414, Mar. 14, 2008). REMEDIAL LAW The remedies of the motion to set aside order of default, motion for new trial, and petition for relief from judgment are mutually exclusive, not alternative or cumulative. Depending on when the default was discovered and whether a default judgment was already rendered, a defendant declared in default may avail of only one of the three remedies. (Lui Enterprises, Inc. v. Zuellig Pharma Corp., G.R. No. 193494, Mar. 12, 2014). Requisites for Motion to Set Aside Order of Default The defendant's motion to set aside order of default must satisfy three conditions: 1. The defendant must challenge the default order before judgment by filing a motion under oath. 2. The defendant must have been prevented from filing his answer due to fraud, accident, mistake or excusable negligence; 3. The defendant must have a meritorious defense. (Sec. 3 (b), Rule 9; Lui Enterprises, Inc. v. Zuellig Pharma Corp., G.R. No. 193494, Mar. 12, 2014). 4. The motion to lift order of default must be appended an affidavit showing the invoked ground, and another, denominated affidavit of merit, setting forth facts constituting the party's meritorious defense or defenses. (Spouses Manuel v. Ong, G.R. No. 205249, Oct. 15, 2014). Rule 9, Section 3 (b) gives an exclusive list of only 4 grounds that allow for relief from orders of default. Moreover, these grounds — extrinsic fraud, accident, mistake, and excusable negligence — relate to factors that are extraneous to a defendant, that is, grounds that show that a defendant was prevented, by reasons beyond his or her influence, from timely filing an answer. (Id.). Excusable negligence is one which ordinary diligence and prudence could not have guarded against. (Lui Enterprises, Inc. v. Zuellig Pharma Corp., G.R. No. 193494, Mar. 12, 2014). Page 85 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 d. Effect Of A Partial Default Elements of Partial Default 1. The default asserting a claim states a common cause of action against several defending parties; 2. Some of the defending parties answer and the others fail to do so; and 3. The answer interposes a common defense. (Sec. 3(c), Rule 9). Effects of Partial Default The court shall try the case against ALL the defending parties based on the answers filed and render judgment upon the evidence presented where the claim states a common cause of action against them. (Id.). The effects, therefore, of a failure to file a separate answer when other co-defendants had already filed theirs, are limited to the following: 1. While the non-answering defendants may be declared in default, the court would still try the case against them on the assumption that they are deemed to have adopted the answer of the answering defendants; and 2. If declared in default, the defaulting party is deprived of no more than the right to take part in the trial. Consequently, the result of the litigation, whether favorable or unfavorable, shall affect and bind the defaulting party and the answering defendant with equal force and effect. (Grageda v. Gomez, G.R. No. 169536, Sep. 21, 2007). The rule on partial default does not apply where the defenses of the answering defendants were personal to them, such as forgery. (Luzon Surety Co v. Magbanua, G.R. No. L-41804, Jul. 30, 1976). e. Extent Of Relief Extent of Relief Granted to Claiming Party A judgment rendered against a party declared in default shall not: 1. Exceed the amount prayed for; 2. Be different in kind from that prayed for; 3. Award unliquidated damages. (Sec. 3(d), Rule 9). REMEDIAL LAW Example: If the complaint seeks to recover P1 million, but the evidence shows that the plaintiff has a right to recover P1.5 million, only P1 million should be granted because a judgment rendered against a party in default shall not exceed the amount prayed for. (RIANO, 2019, p. 343). f. Actions Where Default Is Not Allowed Cases Where a Declaration of Default Cannot be Made 1. Annulment of marriage; 2. Declaration of nullity of marriage; 3. Legal Separation; (Sec. 3(e), Rule 9). 4. Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed (Sec. 6, Rule 65); and 5. Cases under Rules on Summary Procedure (Sec. 19, Revised Rule on Summary Procedure, as amended); 6. Cases under Rules on Small Claims (Sec. 16, Revised Rules of Procedure for Small Claims Cases, as amended). 7. Cases under the Rules on the Writ of Amparo (Sec. 11, Rule on the Writ of Amparo); and 8. Cases under the Rules on the Writ of Habeas Data (Sec. 13, Rules on the Writ of Habeas Data). Failure to File a Comment in Cases of Certiorari, Prohibition and Mandamus When no comment is filed by any of the respondents, the case may be decided on the basis of the record, without prejudice to any disciplinary action which the court may take against the disobedient party. (Sec. 7, Rule 47). Failure to File an Answer in the Cases of Annulment or Nullity of Marriage or Legal Separation If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the Solicitor General or his or her deputized public prosecutor, to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (Sec. 3 (e), Rule 9). Page 86 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 7. FILING AND SERVICE OF PLEADINGS Failure to File Response In Small Claims Cases Should the defendant fail to file his/her/its Response within the required period, and likewise fail to appear on the date set for hearing, the court shall render judgment on the same day, as may be warranted by the facts alleged in the Statement of Claim/s. (Sec. 14, Revised Rules of Procedure for Small Claims Cases, as amended). Should the defendant fail to file his/her/its Response within the required period but appears on the date set for hearing, the court shall ascertain what defense he/she/it has to offer which shall constitute his/her/its Response and proceed to hear or adjudicate the case on the same day as if a Response has been filed. (Id.). Failure to File an Answer in Cases Covered by the Rule on Summary Proceeding The defendant who fails to file an answer seasonably is not supposed to be declared in default. Instead, the court, motu proprio or upon motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for. (Sec. 6, Revised Rule on Summary Procedure, as amended). Failure to File a Return Under the Rules on the Writ of Amparo Upon the service of the writ of amparo, the respondent is required to file a verified return which contains his lawful defenses (Sec. 9, Rule on the Writ of Amparo). Should respondent fail to file a return, the court, justice, or judge shall proceed to hear the petition ex parte. (Sec. 12, Rule on the Writ of Amparo). Failure to File a Return Under the Rules on the Writ of Habeas Data If the respondent fails to file his return which contains his lawful defenses, the court, justice, or judge shall proceed to hear the petition ex parte, granting such relief as his petition may warrant, or require the petitioner to submit further evidence. (Sec. 4, Rules on the Writ of Habeas Data). a. Payment Of Docket Fees Payment of Docket Fees – Jurisdictional For Initiatory Pleadings It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fees that vests a trial court with jurisdiction over the subject matter or nature of the action. (Serrano v. Delica, G.R. No. 136325, Jul. 29, 2005). A case is deemed filed only upon payment of the docket fee regardless of the actual date of filing in court. And neither can the amendment of the complaint thereby vest jurisdiction upon the Court. For all legal purposes, there is no such original complaint that was duly filed which could be amended. (Manchester Development Corp v. CA, G.R. No. 75919, May 7, 1987) The court requires that all complaints, petitions, answers, and similar pleadings must specify the amount of damages being prayed for both in the body of the pleading and in the prayer, and said damages shall be considered in the assessment of the filing fees in any case. Any pleading that fails to comply with this requirement shall not be accepted nor admitted or shall otherwise be expunged from the record. (Id.) Aggregate Amount Claimed as Basis for Assessment of Docket Fees For actions involving recovery of money or damages, the aggregate amount claimed should be the basis for assessment of docket fees. Thus, the basis for the assessment of the filing fees should not have been only the principal amounts due on the loans, but also the accrued interests, penalties, and attorney's fees. (Heirs of Dragon v. The Manila Banking Corp., G.R. No. 205068, 2019) Liberal Interpretation on the Non-Payment of Docket Fees Notwithstanding the mandatory nature of the requirement of payment of appellate docket fees, we also recognize that its strict application is qualified by the following: Page 87 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 i. Failure to pay those fees within the reglementary period allows only discretionary, not automatic, dismissal; ii. Such power should be used by the court in conjunction with its exercise of sound discretion in accordance with the tenets of justice and fair play, as well as with a great deal of circumspection in consideration of all attendant circumstances. (Heirs of Reinoso, Sr. v. Court of Appeals, G.R. No. 116121, Jul. 18, 2011) While the court acquires jurisdiction over any case only upon the payment of the prescribed docket fees, its non-payment at the time of filing of the initiatory pleading does not automatically cause its dismissal provided that: (a) the fees are paid within a reasonable period; and (b) there was no intention on the part of the claimant to defraud the government. (Camaso v. TSM Shipping (Phils), Inc., G.R. No. 223290, Nov. 7, 2016). Note: the payment of docket fees for compulsory counterclaim is no longer required. A.M. No. 04-204-SC which included the payment of docket fees of compulsory counterclaims has been suspended since September 21, 2004 by virtue of OCA Circular 96-2009. Insufficient Payment of Docket Fees If the amount of docket fees paid is insufficient considering the amount of the claim, the clerk of court of the lower court involved or his duly authorized deputy has the responsibility of making a deficiency assessment. The party filing the case will be required to pay the deficiency, but jurisdiction is not automatically lost. (Rivera v. Del Rosario, G.R. No. 144934, Jan. 15, 2004). Where the court in its final judgment awards a claim not alleged, or a relief different from, or more than that claimed in the pleading, the party concerned shall pay the additional fees which shall constitute a lien on the judgment in satisfaction of said lien. The clerk of court shall assess and collect the corresponding fees. (Sec. 2, Rule 141). The rule that “the additional docket fee therefor shall constitute a lien on the judgment” applies only to damages arising after the filing of the REMEDIAL LAW complaint or similar pleading, for then it will not be possible for the claimant to specify nor speculate as to the amount thereof. (GSIS v. Caballero, G.R. No. 158090, 2010). But the general rule remains that the amount of any claim for damages, therefore, arising on or before the filing of the complaint or any pleading should be specified. It is the duty of the parties claiming such damages to specify the amount sought on the basis of which the court may make a proper determination, and for the proper assessment of the appropriate docket fees. (Ayala Corp. v. Madayag, G.R. No. 88421, Jan. 30, 1990). Effect of Failure to Pay Docket Fees on the Amended or Supplemental Complaint The lower court acquired jurisdiction over the case when private respondent paid the docket fee corresponding to its claim in its original complaint. Its failure to pay the docket fee corresponding to its increased claim for damages under the amended complaint should not be considered as having curtailed the lower court's jurisdiction. The unpaid docket fee should be considered as a lien on the judgment even though private respondent specified the amount of P600,000.00 as its claim for damages in its amended complaint. (PNOC Shipping and Transport Corp. v. Court of Appeals, G.R. No. 107518, Oct. 8, 1998). What the plaintiffs failed to pay was merely the filing fees for their Supplemental Complaint. The RTC acquired jurisdiction over plaintiffs' action from the moment they filed their original complaint accompanied by the payment of the filing fees due on the same. The plaintiffs' non-payment of the additional filing fees due on their additional claims did not divest the RTC of the jurisdiction it already had over the case. (Do-All Metals Industries, Inc. v. Security Bank Corp., G.R. No. 176339, Jan. 10, 2011). b. Distinguish: Filing And Service Of Pleadings Filing and Service, Defined Filing is the act of submitting the pleading or other paper to the court. (Sec 2, Rule 13). Page 88 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW Service is the act of providing a party with a copy of the pleading or any other court submission. (Id.). 9. Offers of judgment; and 10. Similar papers. (Rule 13, Sec. 4) Note that service may also be made by the court. (see Secs. 13 and 18, Rule 13). Pleadings subsequent to original complaint and written motions should first be served on the parties before they are filed with court. (FERIA, 2013, p. 425). To Whom Service is Made a. If the party appears without a counsel – service is to be made upon such party; b. If the party appears by counsel - service upon such party shall be made upon his or her counsel, unless service upon the party and the party's counsel is ordered by the court; c. If one counsel appears for several parties – same as above, but such counsel shall only be entitled to one copy of any paper served by the opposite side; d. If several counsels appear for one party - such party shall be entitled to only one copy of any pleading or paper to be served upon the lead counsel if one is designated, or upon any one of them if there is no designation of a lead counsel. (Id.). Service of the petition on a party, when that party is represented by a counsel of record, is a patent nullity and is not binding upon the party wrongfully served. (Republic v. Caguioa, G.R. No. 174385, Feb. 20, 2013). The above rule, however, is a procedural standard that may admit of exceptions when faced with compelling reasons of substantive justice manifest in the petition and in the surrounding circumstances of the case. The Republic’s subsequent compliance with the rule after being informed of the presence of counsels of record sufficiently warrants the rule's relaxed application. (Id.). Papers Required to be Filed and Served on the Parties Affected: 1. Judgments; 2. Resolutions; 3. Orders; 4. Pleadings subsequent to the complaint; 5. Written motion; 6. Notices; 7. Appearances; 8. Demands; But for ex parte written motions, the original complaint is first filed, and then served, although they need not be set for hearing. (Supra. at p.425426). For judgments, resolutions, and orders of the court, they should first be filed with the clerk of court before they are served upon the parties affected. The act of filing constitutes rendition or promulgation thereof. (Sec. 1, Rule 36; FERIA, 2013, p. 425). c. Periods Of Filing Of Pleadings Answer to Complaint The defendant shall file his answer to the complaint within 30 days after service of summons, unless a different period is fixed by the court. Extension of Time to File an Answer A defendant may, for meritorious reasons, be granted an additional period of not more than 30 calendar days to file an answer. A defendant is only allowed to file 1 motion for extension of time to file an answer. (Sec. 11, Rule 11). Under the 2019 Amendments, a motion for extension to file any pleading, other than an answer, is prohibited and considered a mere scrap of paper. (Id.; also see Sec. 12, Rule 15). The court, however, may allow any other pleading to be filed after the time fixed by these Rules. (Sec. 11, Rule 11). Where the Defendant is a Foreign Private Juridical Entity a. Within 30 days after service of summons if there exists a resident agent. (Sec. 1, Rule 11). Page 89 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 b. Within 30 days after service of summons if there is no resident agent but there is an agent or officer in the Philippines. (Sec. 1, Rule 11). c. Within 60 days after receipt of summons by the home office of the foreign private entity, if there is no resident agent nor agent or officer in the Philippines and summons is made to the proper government office which is tasked to send a copy of such to the home office of the foreign private entity. (Sec. 2, Rule 11). If the service of summons was made by publication, within the time specified in the order granting leave to serve summons by publication, which shall not be less than 60 days after notice. (Sec. 17, Rule 14). If the service of summons was made by extraterritorial service to a non-resident defendant, the period to answer is the time specified by the court which should not be less than 60 days after notice. (Id.). Answer to Amended Complaint a. Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within 30 days after being served with a copy thereof. b. Where filing is NOT a matter of right, the defendant shall answer the amended complaint within 15 days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint, if no new answer is filed. (Sec. 3, Rule 11). Reply Reply, if allowed (i.e, answer attaches an actionable document), may be filed within 15 days from service of the pleading responded to. (Sec. 6, Rule 11). Answer to Supplemental Complaint A supplemental complaint may be answered within 20 days from notice of the order admitting the same, unless a different period is fixed by the court. (Sec. 7, Rule 11). The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. (Id.). Summary of Periods to File Pleadings PERIOD TO RECKONED PLEADING FILE FROM Answer 30 days, unless otherwise specified by the court. Answer of a a. 30 days, if defendant with agent, foreign officer, or private resident agent. juridical entity b. 60 days if summons was served to a government official designated by law to receive the same. The above shall also apply to the answer to an amended counterclaim, amended crossclaim, amended third (fourth, etc.)-party complaint, and amended complaint-in-intervention. (Id.). Answer to Counterclaim or Cross-Claim A counterclaim or cross-claim must be answered within 20 days from service. (Sec. 4, Rule 11). Answer to Third-party Complaint The time to answer a third (fourth, etc.)-party complaint shall be governed by the same rule as the answer to the complaint, i.e., 30 days after the service of summons. (Sec. 5, Rule 11). Answer if summons are served through extraterritorial service or publication Time specified by the order of the court, but must not be less than 60 days. Service summons of a. Service of summons to the agent, officer or resident agent; or b. Receipt of the foreign entity, if summon is served to the government official designated by law to receive summons. Notice of the extraterritorial service/ publication of summons. Page 90 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 PLEADING PERIOD TO FILE Answer to 30 days. amended complaint as a matter of right Answer to 15 days. amended complaint as a matter of discretion of the court Answer to 20 days. counterclaim or cross-claim RECKONED FROM Service of the amended complaint. Notice of the order admitting the amended complaint. Service of the counterclaim/ cross-claim. Answer to 30 days, unless Service of the third-party otherwise summons. complaint specified by the court. Reply 15 days. Service of the pleading responded to. The original copies intended for the court should be plainly indicated in order to distinguish them from the copies of the parties. (FERIA, 2013, p. 424). Failure to comply with the requirement that the petition be accompanied by a duplicate original or certified true copy of the judgment, order, resolution or ruling being challenged is sufficient ground for the dismissal of said petition. (William Golangco Construction Corp v. Ray Burton Development Corp, G.R. No. 163582, Aug. 9, 2010) When Personal Filing Deemed Made Filing is deemed made based on the clerk of court’s endorsement on the pleading of the date and hour of filing. (Sec. 3, Rule 13). When a pleading is sent through private courier, the date of actual receipt of the court is considered as the date of filing. (Heirs of Miranda v. Miranda, GR No. 179638, Jul. 8, 2013). ii. Filing By Registered Mail Answer to 20 days, unless Notice of the supplemental otherwise fixed order complaint by the court. admitting the supplemental complaint. How Filing by Registered Mail is Made Filing by registered mail is made by sending the pleading or other court submission to the court via registered mail. (Sec. 3 (b), Rule 13). d. Manner Of Filing It is required that the envelope shall be attached to the record of the case. (Id.). Different Manners of Filing Filing of pleadings and other court submissions shall be made by: i. By personal filing; ii. By registered mail; iii. By accredited courier; iv. By electronic mail or other electronic means, as authorized by the court in places where it is electronically equipped. (Sec. 3, Rule 13). i. Personal Filing How Personal Filing is Made Personal filing is made by submitting personally the original thereof, plainly indicated as such, to the court. (Sec. 3 (a), Rule 13). When Filing By Registered Mail Deemed Made The date of the mailing of motions, pleadings, and other court submissions, and payments or deposits, shall be deemed as the date of filing, payment, or deposit as shown by either: a. The post office stamp on the envelope; or b. The registry receipt. (Id.). Thus, the date of filing is determinable from the above two sources. If the date stamped on one is earlier than the other, the former may be accepted as the date of filing. This presupposes, however, that the envelope or registry receipt and the dates appearing thereon are duly authenticated before the tribunal where they are presented. (Government Service Insurance System v. Page 91 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 National Labor Relations Commission, G.R. No. 180045, Nov. 17, 2010). iii. Filing By Accredited Courier How Filing by Accredited Courier is Made Filing by accredited courier is made by sending the pleading or other court submission to the court via accredited courier. (Sec. 3, Rule 13). When Filing by Accredited Courier is Made The date of the mailing of motions, pleadings, and other court submissions, and payments or deposits via accredited courier, shall be deemed as the date of filing, payment, or deposit. (Id.). iv. Transmittal By Electronic Mail Or Other Electronic Means How Filing by Electronic Mail or Other Electronic Means is Made Filing by electronic mail or other electronic means is made by sending the pleading or other court submission to the court through such manner, provided: 1. Such mode is authorized by the court; and 2. The court is electronically equipped. (Id.). When Filing by Electronic Mail or Other Electronic Means is Deemed Made In cases of filing by electronic mail or through other electronic means, the date of electronic transmission shall be considered as the date of filing. (Id.). e. Modes Of Service Different Modes of Service Pleadings, motions, notices, orders, judgments, and other court submissions shall be served: i. By personal service; ii. By registered mail; iii. By substituted service; (Sec. 8, Rule 13). iv. By accredited courier; v. By electronic mail, facsimile transmission, or other electronic means; and vi. By other means as provided for in international conventions where the Philippines is a party. (Sec. 5, Rule 13). The modes of service are mandatorily intended to provide a uniform procedure affecting a matter of public interest which may not be changed by the parties. Thus, notice given orally in open court as to the denial of a motion is not sufficient and does not constitute service. (De Pineda v. Veloira, G.R. No. L-15145, Jun. 30, 1961). A party is not considered as having been served with the judgment merely because he heard the judge dictating the said judgment in open court; it is necessary that he be served with a copy of the signed judgment that has been filed with the clerk in order that he may legally be considered as having been served with the judgment. (Ago v. Court of Appeals, G.R. No. L-17898, 1962) i. Personal Service How Personal Service is Made Through personal service, court submissions may be served by: a. Personally delivering a copy to the party or to the party's counsel; b. Personally delivering a copy to their authorized representative named in the appropriate pleading or motion; c. Leaving a copy in the office of the party, counsel, or authorized representative, with his or her clerk, or any person having charge thereof; d. Leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion residing therein, if he or she has no office or such office is unknown. (Sec. 6, Rule 13). But when the notice was sent to the lawyer's given address but did not reach him because he had moved out without informing the court of his new location, the service at the old address should be considered valid. (Vill Transport Service, Inc. v. Court of Appeals, G.R. No. 76232, Jan. 18, 1991). When a party's counsel, however, serves a notice of change in address upon a court, and the court acknowledges this change, service of papers, processes, and pleadings upon the counsel's former address is ineffectual. Service is deemed Page 92 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 completed only when made at the updated address. (Gatmaytan v. Dolor, G.R. No. 198120, 2017) Note: Under service of pleadings, papers, and other court submissions, leaving copies thereof at the office of the party, counsel, or authorized representative or leaving it in his or her residence to a person of sufficient age or discretion is considered personal service. Meanwhile, under service of summons, the same manner of service is considered as substituted service. (see Sec. 6, Rule 13 and Sec. 6, Rule 14). When Personal Service Deemed Completed Personal service is complete upon actual delivery. (Sec. 15, Rule 13). ii. Service By Registered Mail How Service by Registered Mail is Made Service by registered mail shall be made by: 1. Depositing the copy in the post office; 2. The deposited copy must be: i. In a sealed envelope; ii. Plainly addressed to the party or to the party's counsel at his or her office, if known, otherwise at his or her residence, if known; 3. The postage fully pre-paid; and 4. An instruction must be given to the postmaster to return the mail to the sender after 10 calendar days if undelivered. (Sec. 7, Rule 13). When Service by Registered Mail Deemed Completed Service by registered mail is considered complete, whichever is earlier, upon: a. Actual receipt by the addressee; or b. After 5 calendar days from the date the addressee received the first notice of the postmaster. (Sec. 15, Rule 13) Not only that the notice of the registered mail be sent but that it should also be delivered to and received by the addressee. (Vill Transport Service, Inc. v. Court of Appeals, G.R. No. 76232, Jan. 18, 1991). There must be clear proof of compliance with the postal regulations governing the sending and receipt of the first notice. The mere exhibition in court of the envelope containing the unclaimed mail is not sufficient proof that a first notice was sent. (Barrameda v. Castillo, G.R. No. L-27211, Jul. 6, 1977). How Service by Ordinary Mail is Made If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail, following the steps for service through regular mail. (Sec. 7, Rule 13). When Service by Ordinary Mail Deemed Completed Service by ordinary mail is complete upon the expiration of 10 calendar days after mailing, unless the court otherwise provides. (Sec. 15, Rule 13). Substituted Service Substituted Service of Pleadings, Papers, and Other Court Submissions Substituted service of pleadings, motions, notices, resolutions, orders and other papers is made by delivering the copy to the clerk of court provided that: 1. Service cannot be made by personal service or by registered mail; 2. Failure is due to the office and place of residence of the party or his or her counsel being unknown; and 3. Proof of failure of both personal service and service by mail is presented to the clerk of court. (Sec. 8, Rule 13). The service is complete at the time of such delivery. (Id.). iii. Service By Accredited Courier How Service by Accredited Courier is Made Pleadings, motions, notices, orders, judgments, and other court submissions are served by accredited courier by depositing the copy thereof with an accredited courier. (Sec. 5, Rule 13). Page 93 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW When Service by Accredited Courier Deemed Completed Service by accredited courier is complete, whichever is earlier, upon: a. Actual receipt by the addressee; or b. After at least 2 attempts to deliver by the courier service; or c. The expiration of five (5) calendar days after the first attempt to deliver. (Sec. 15, Rule 13). v. Service As Provided For In International Conventions iv. Service By Electronic Mail, Facsimile Transmission, Or Other Electronic Means How Judgments, Final Orders, or Resolutions are Served Judgments, final orders, or resolutions shall be served either: i. By personally service; ii. By registered mail; iii. By accredited courier, upon ex parte motion of any party in the case courier at his or her expense; or iv. By publication, when a party summoned by publication has failed to appear in the action, at the expense of the prevailing party. (Sec. 13, Rule 13). How Service by Electronic Mail, Facsimile Transmission, or Other Electronic Means is Made Service by electronic means shall be made by sending an e-mail to the party's or counsel's electronic mail address, or through other electronic means of transmission as the parties may agree on, or upon direction of the court. (Sec. 9, Rule 13). Service by facsimile shall be made by sending a facsimile copy to the party's or counsel's given facsimile number. (Id.). Note that service through electronic mail, facsimile transmission, or other electronic means can only be made if the party concerned consents to such modes of service. (Id.). When Service by Electronic Mail, Facsimile Transmission, or Other Electronic Means Deemed Completed Electronic service is complete: a. At the time of the electronic transmission of the document; or b. At the time that the electronic notification, when available, of service of the document is sent. (Sec. 15, Rule 13.). Electronic service is not effective or complete if the party serving the document learns that it did not reach the addressee or person to be served. (Id.). Service can also be effected by means provided for in international conventions provided that the Philippines is a party thereof. (Sec. 5, Rule 13.). f. Service Of Judgments, Final Orders Or Resolutions; Service Of Court-Issued Orders And Other Documents Final judgments or orders are appealable. Hence, it is necessary that they be served personally or by registered mail (save for accredited courier or publication) in order that the period for taking an appeal may be computed. (FERIA, 2013, p. 429). If a defendant who had been served with summons subsequently absconds and his present address is unknown, the court may order that judgments, final orders, or resolutions be served upon him by publication. (Id.). How Court-issued Orders and Other Documents are Served Aside from the various modes of service allowed by the Rules on service of judgments, final orders, or resolutions, other court-issued orders or documents may be electronically served to all the parties in the case which shall have the same effect and validity as provided herein. (Sec. 18, Rule 13). A paper copy of the order or other document electronically served shall be retained and attached to the record of the case. (Id.). Page 94 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 g. Conventional Service Or Filing Of Orders, Pleadings, And Other Documents When Conventional Service is Required The following orders, pleadings, and other documents must be served or filed personally or by registered mail when allowed: 1. Initiatory pleadings and initial responsive pleadings, such as an answer; 2. Subpoena, protection orders, and writs; 3. Appendices and exhibits to motions, or other documents that are not readily amenable to electronic scanning may, at the option of the party filing such, be filed and served conventionally; and 4. Sealed and confidential documents or records. (Sec. 14, Rule 13). The above submissions may not be filed electronically, unless with the express permission of the court. (Id.). h. When Service Is Deemed Complete Note: the discussions on Completeness of Service is placed together with the Modes of Service. i. Proof Of Filing And Service Proof of Filing, General Rule As a general rule, the filing of a pleading or any other court submission shall be proved by its existence in the record of the case. (Sec. 16, Rule 13). Thus, the various proofs of filing contemplate a situation where the pleading or court submission is not in the record. (Id.). Proof of Personal Filing If the pleading or any other court submission is claimed to have been filed personally, the filing shall be proven by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the pleading or court submission. (Sec. 16 (a), Rule 13). Proof of Filing by Registered Mail If the pleading or any other court submission was filed by registered mail, the filing shall be proven by: REMEDIAL LAW 1. The registry receipt; and 2. The affidavit of the person who mailed it, containing a full statement of: i. The date and place of deposit of the mail in the post office; ii. That the document is in a sealed envelope; iii. That the mail is addressed to the court; iv. That the postage fully prepaid; and v. That it is with instructions to the postmaster to return the mail to the sender after 10 calendar days if not delivered. (Sec. 16 (b), Rule 13). Proof of Filing by Accredited Courier If the pleading or any other court submission was filed through an accredited courier service, the filing shall be proven by: 1. An affidavit of service of the person who brought the pleading or other document to the service provider; and 2. The courier's official receipt and document tracking number. (Sec. 16 (c), Rule 13). Proof of Filing by Electronic Mail If the pleading or any other court submission was filed by electronic mail, the same shall be proven by: 1. An affidavit of electronic filing of the filing party; and 2. A paper copy of the pleading or other document transmitted or a written or stamped acknowledgment of its filing by the clerk of court. (Sec. 16 (d), Rule 13). If the paper copy sent by electronic mail was filed by registered mail, the rules on proof of filing by registered mail shall apply. (Id.). Proof of Filing by Other Authorized Electronic Means If the pleading or any other court submission was filed through other authorized electronic means, the same shall be proven by: 1. An affidavit of electronic filing of the filing party; and 2. A copy of the electronic acknowledgment of its filing by the court. (Sec. 16 (e), Rule 13). Page 95 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Proof of Service When service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact of service. The burden of proving notice rests upon the party asserting its existence. (Republic v. Wee, G.R. No. 147212, Mar. 24, 2006). Proof of Personal Service Proof of personal service shall consist of: a. A written admission of the party served; or b. The official return of the server; or c. The affidavit of the party serving, containing a statement of the date, place, and manner of service. (Sec. 17, Rule 13). In one case, the Court held that the CA correctly dismissed the petitioner's appeal on the ground of, among others, non-attachment of the affidavit of service to its petition, as required by Rule 13, Section 13 of the Rules of Court (now Sec. 17, Rule 13). The rule obliges litigants to attach an affidavit of service to their petitions/appeals. While this is required merely as proof that service has been made on the other party, it is nonetheless essential to due process and the orderly administration of justice. (Ang Biat Huan Sons Industries, Inc. v. Court of Appeals, G.R. No. 154837, Mar. 22, 2007). If the written admission of the party served is not obtained, an affidavit is necessary to prove service. A mere certificate is not enough. (FERIA, 2013, p. 435). Proof of Service by Registered Mail Proof of service by registered mail shall be made by: 1. The affidavit stating compliance with the rules on service by registered mail, to wit: i. That the copy was deposited in the post office; ii. That the deposited copy must be: (i) In a sealed envelope; (ii) Plainly addressed to the party or to the party's counsel at his or her office, if known, otherwise at his or her residence, if known; REMEDIAL LAW iii. That the postage was fully pre-paid; and iv. An instruction was given to the postmaster to return the mail to the sender after 10 calendar days if undelivered. (see Sec. 7, Rule 13); and 2. The registry receipt issued by the mailing office. (Sec. 17 (b), Rule 13). The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof, the unclaimed letter AND the certified or sworn copy of the notice given by the postmaster to the addressee. (Id.). In civil cases, service made through registered mail is proved by the registry receipt issued by the mailing office and an affidavit of the person mailing of facts showing compliance with Section 7 of Rule 13. (Ting v. Court of Appeals, G.R. No. 140665, Nov. 13, 2000). Proof of Service by Ordinary Mail Proof of service by ordinary mail shall consist of an affidavit of the person mailing stating the facts showing compliance with the rule on service for ordinary mail (Sec. 13 (a), Rule 13; see also the affidavit requirement for Proof of Service by Registered Mail; Sec. 7, Rule 13). Proof of Service by Accredited Courier Proof of service by accredited courier shall be made by: 1. An affidavit of service executed by the person who brought the pleading or paper to the service provider; and 2. The courier's official receipt or document tracking number. (Sec. 17 (c), Rule 13). Proof of Service by Electronic Mail, Facsimile, or Other Authorized Electronic Means Proof shall be made by: 1. An affidavit of service executed by the person who sent the e-mail, facsimile, or other electronic transmission; and 2. A printed proof of transmittal. (Sec. 17 (d), Rule 13). Page 96 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Notice Of Lis Pendens Nature of Notice of Lis Pendens Lis pendens, which literally means pending suit, refers to the jurisdiction, power or control which a court acquires over property involved in a suit, pending the continuance of the action, and until final judgment. Its notice is an announcement to the whole world that a particular property is in litigation and serves as a warning that one who acquires an interest over said property does so at his own risk or that he gambles on the result of the litigation over said property. (Spouses Romero v. Court of Appeals, G.R. No. 142406, May 16, 2005). The purposes of lis pendens are: 1. To protect the rights of the party causing the registration of the lis pendens; and 2. To advise third persons who purchase or contract on the subject property that they do so at their peril and subject to the result of the pending litigation. (Heirs of Lopez, Sr. v. Enriquez, G.R. No. 146262, Jan. 21, 2005). Actions Where Lis Pendens is Appropriate Notice of lis pendens may be applied for in actions affecting the title or the right of possession of real property. (Sec. 19, Rule 13). A notice of lis pendens may also deal with the use or occupation of a property and to suits seeking to establish a right to, or an equitable estate or interest in, a specific real property; or to enforce a lien, a charge or an encumbrance against it. (Heirs of Lopez, Sr. v. Enriquez, G.R. No. 146262, Jan. 21, 2005). But the doctrine of lis pendens has no application to a proceeding in which the only object sought is the recovery of a money judgment, though the title or right of possession to property be incidentally affected. (Atlantic Erectors Inc. v. Herbal Cove Realty Corp., G.R. No. 148568, Mar. 20, 2003). Specifically, a notice of lis pendens is appropriate in the following cases: 1. An action to recover possession of real estate; 2. An action to quiet title thereto; 3. An action to remove clouds thereon; REMEDIAL LAW 4. An action for partition; and 5. Any other proceedings of any kind in Court directly affecting the title to the land or the use or occupation thereof or the buildings thereon. (Magdalena Homeowners Association, Inc. v. Court of Appeals, G.R. No. 60323, Apr. 17, 1990). But it has no application in the following cases: 1. Preliminary attachments; 2. Proceedings for the probate of wills; 3. Levies on execution; 4. Proceedings for administration of estate of deceased persons; and 5. Proceedings in which the only object is the recovery of a money judgment. (Heirs of Lopez, Sr. v. Enriquez, G.R. No. 146262, Jan. 21, 2005). How to Record Notice of Lis Pendens In an appropriate action, the plaintiff or defendant seeking affirmative relief, may record a notice of the pendency of the action with the registry of deeds of the province in which the property is situated. (Sec. 19, Rule 13). The said notice shall contain: 1. The names of the parties; and 2. The object of the action or defense; 3. A description of the property in that province affected thereby. (Id.). Only the parties to a case can request for the recording of the pendency of an action on the title of the subject property. Applications for notice of lis pendens filed by persons claiming interest over the property by have no standing in the case must be denied. (Heirs of Lopez, Sr. v. Enriquez, G.R. No. 146262, Jan. 21, 2005). When Notice of Lis Pendens Takes Effect Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. (Sec. 19, Rule 13). Page 97 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Cancellation of Notice of Lis Pendens The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is: a. For the purpose of molesting the adverse party; or b. Not necessary to protect the rights of the party who caused it to be recorded. (Id.). In one case, the Republic, through the Philippine Commission on Good Government (PCGG), sought to recover the ill-gotten wealth of the respondents. The Republic caused the annotation of a notice of lis pendens over the respondents’ title over the Cabuyao property. The respondents then moved for the cancellation of the notice of lis pendens, which the Sandiganbayan granted, on the ground that the Cabuyao property was not the subject of this case; thus, the notice of lis pendens was not necessary to protect the Republic’s rights. In reversing the Sandiganbayan, the SC ruled that the Sandiganbayan erred in cancelling the notice of lis pendens. The Republic actually sought to include the Cabuyao property in the present action through an amended complaint. Nonetheless, the Sandiganbayan did not admit the amended complaint because it found that the pleading failed to comply with the requirement that the amendments in a pleading be indicated by appropriate marks. However, E.O. 14 specifically states that the technical rules of procedure and evidence shall not be strictly applied to the civil cases filed under it so that the efforts of the PCGG will not be hampered (Republic v. Sandiganbayan, G.R. No. 195295, Oct. 5, 2016). REMEDIAL LAW e. Correcting a mistaken or inadequate description in any other respect. (Id.). Compared to Rule 129, Sec. 4 Section 4 of Rule 129 contains the rule prohibiting a party from contradicting his judicial admission unless it is shown that such admission is made through palpable mistake or no such admission is made. Matters involving the amendment of pleadings are primarily governed by the pertinent provisions of Rule10 and not by Section 4 of Rule 129 of the Rule of Court. Hence, allegations (and admissions) in a pleading—even if not shown to be made through "palpable mistake"—can still be corrected or amended provided that the amendment is sanctioned under Rule 10 of the Rules of Court. (Yujuico v. United Resources Asset Management, G.R. No. 211113, Jun. 29, 2015). Two Types of Amendments a. Amendments as a matter of right (Sec. 2, Rule 10); b. Amendments by leave of court/matter of discretion (Sec. 3, Rule 10). a. Amendment As A Matter Of Right When Amendment is a Matter of Right An amendment is considered as a matter of right if it is made at any time before a responsive pleading is served or, in the case of a reply, at any time within 10 calendar days after it is served. (Sec. 2, Rule 10). 8. AMENDMENT Reason for Allowing Amendments Amendments are permitted so that the actual merits of the controversy may speedily be determined, without regard to technicalities, in the most expeditious and inexpensive manner. (Sec. 1, Rule 10). How Pleadings are Amended a. Adding or striking out an allegation of a party; b. Adding or striking out the name of a party; c. Correcting a mistake in the name of a party; d. Correcting a mistaken or inadequate allegation; In amendments as a matter of right, there is no need to file a motion for leave to amend the pleading. But a party may amend his pleading ONCE as a matter of right. Subsequent amendments must be WITH LEAVE of court. (Id.). Section 2 Rule 10 refers to an amendment made before the trial court and not to amendments before the Court of Appeals. The Court of Appeals is vested with jurisdiction to admit or deny amended petitions filed before it. (Navarro v. Vda De Taroma, G.R. No. 160214, Dec. 16, 2005). Page 98 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Motion to Dismiss Not a Responsive Pleading A motion to dismiss is not the responsive pleading contemplated by the Rule. Plaintiff may file an amended complaint even after the original complaint was ordered dismissed, provided that the order of dismissal is not yet final. (Bautista v. Maya-Maya Cottages Inc., G.R. No. 148361, Nov. 29, 2005). Responsive pleadings are those which seek affirmative relief and/or set up defenses, like an answer. A motion to dismiss is not a responsive pleading for purposes of Section 2 of Rule 10. (Marcos-Araneta v. CA, G.R. No. 154096, Aug. 22, 2008). Amendment to Correct Jurisdictional Defect When Made as a Matter of Right Pleader has a right to amend his complaint before a responsive pleading is served even if it is to correct a jurisdictional defect. (RIANO, 2019, p. 377). Mandamus Applicable to Compel Trial Court to Admit Amended Pleading as a Matter of Right As the plaintiffs have the right to amend their complaint, it is the correlative duty of the respondent judge to accept the amended complaint; in refusing to permit the amendment of the plaintiffs' complaint, the judge unlawfully neglected to perform an act which the law specifically enjoins as a duty resulting from his office, or excluded the plaintiffs from the enjoyment of a right to which they are entitled. Thus, mandamus will prosper provided that there is no other plain, speedy and adequate remedy in the ordinary course of law. (Breslin v. Luzon Stevedoring Co., G.R. No. L-3346 Sep. 29, 1949). When New Service of Summons is Required When defendants have not yet appeared in court and no summons has been validly served, new summons for the amended complaint must be served on them. It is not the change of cause of action that gives rise to the need to serve another summons for the amended complaint, but rather the acquisition of jurisdiction over the persons of the defendants. (Vlason Enterprises v. CA, G.R. No. 121662-64, Jul. 6, 1999) REMEDIAL LAW b. Amendments By Leave Of Court When Leave of Court is Required for Amending Pleadings Leave of court is required for an amendment when: 1. The amendment is made after service of a responsive pleading; AND 2. It involves a substantial amendment. (Sec. 3, Rule 10). Under Sec. 3, Rule 10, the amendment may substantially alter the cause of action or the defense, provided that it is not intended for delay and will serve the higher interest of substantial justice. (Philippine Ports Authority v. William Gothong & Aboitiz, Inc., G.R. No. 158401, Jan. 28, 2008). Requisites for Amendment by Leave of Court 1. There must be a motion filed in court; 2. Notice to the adverse party; 3. Opportunity to be heard afforded to the adverse party; and Motion must not be intended: i. To cause delay; ii. To confer jurisdiction to the court; or iii. To cure a pleading which stated no cause of action from the beginning. (Sec. 3, Rule 10). The defect of lack of cause of action at the commencement of the suit cannot be cured by the accrual of a cause of action during the pendency of the case. There must be some cause of action at the commencement of the suit. (Swagman Hotels & Travel v. CA, G.R. No. 161135. Apr. 8, 2005). No Amendment Necessary to Conform to or Authorize Presentation of Evidence When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. (Sec 5, Rule 10). Under the 2019 Amendments, no amendment of such pleadings is necessary to conform them with the evidence. (Id.). Page 99 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Prior to the 2019 Amendments, the Rules permissively allow parties to amend the pleadings to conform them to the evidence presented. Nevertheless, in both cases, failure to amend does not affect the result of the trial of such issues not formerly raised. But the curing effect under Sec. 5, Rule 10 is applicable only if a cause of action in fact exists at the time the complaint is filed and evidence showing such cause of action was presented subsequently. (Swagman Hotels & Travel v. CA, G.R. No. 161135. Apr. 8, 2005). c. Formal Amendment A defect in the designation of the parties and other clearly CLERICAL or TYPOGRAPHICAL errors may be summarily corrected by the court at ANY stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. (Sec. 4, Rule 10). d. Effect Of Amended Pleading Effects of Amended Pleading on the Original Pleading An amended pleading supersedes the pleading that it amends. (Sec. 8, Rule 10). When a pleading is amended, the original ceases to perform any further function as a pleading and the case stands for trial on the amended pleading only. (Ascano-Cupino v. Pacific Rehouse Corporation; G.R. No. 205113, Aug. 26, 2015). Effect of Amendments in Relation to Statute of Limitations But for purposes of determining the commencement of a suit, the original complaint is deemed abandoned and superseded by the amended complaint only if the amended complaint introduces a new or different cause of action or demand. In such a case, it is the actual filing in court that controls and not the date of the formal admission of the amended pleading. (Verzosa v. Court of Appeals, G.R. Nos. 119511-13, Nov.r 24, 1998). REMEDIAL LAW Effect of the Amended Pleading on Admissions in the Original Pleading Admissions in superseded pleadings are not carried over in the amended pleadings unless contained in the amended pleading and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. (Sec. 8, Rule 10). Nonetheless, admissions in superseded pleadings may be offered in evidence against the pleader, (Id.). Under the Rules, pleadings superseded or amended disappear from the record, lose their status as pleadings and cease to be judicial admissions. (Ching v. Court of Appeals, G.R. No. 110844, Apr. 27, 2000). Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof, and became merely an extrajudicial admission. (Torres v. Court of Appeals, G.R. No. L-37420, L-37421, Jul. 31, 1984). Admissions in Original Pleadings Admissions made in the original pleadings are considered as EXTRAJUDICIAL admissions. However, admissions in superseded pleadings may be received in evidence against the pleader as long as they are formally offered in evidence. (Rule 10, Sec. 8) Effect of Amendment of Complaint on the Requisite of Service of Summons If new causes of action are alleged in the amended complaint filed BEFORE the defendant has appeared in court, another summons must be served on the defendant with the amended complaint. However, if the defendants have ALREADY APPEARED before the court by virtue of summons in the original complaint (e.g., by filing an entry of appearance or motion for extension of time to file a responsive pleading), the amended complaint may be served upon them without need of another summons EVEN IF new causes of action are alleged. Page 100 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 e. Supplemental Pleadings Nature of Supplemental Pleadings Supplemental pleadings set forth the transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented. (Sec. 6, Rule 10). It is but a continuation of the complaint. Its usual office is to set up new facts which justify, enlarge or change the kind of relief with respect to the same subject matter as the controversy referred to in the original complaint. (Chan v. Chan, G.R. No. 150746, Oct. 15, 2008). A supplemental pleading assumes that the original pleading is to stand and that the issues joined with the original pleading remained an issue to be tried in the action. (Young v. Spouses Sy, G.R. Nos. 157745, Sep. 26, 2006). How to File Supplemental Pleading Filing of a supplemental pleading must be: 1. Upon motion of the party; 2. With reasonable notice to the other party; (Sec. 6, Rule 10). Introduction of a New Cause of Action in Supplemental Pleading When the cause of action stated in the supplemental complaint is different from the causes of action mentioned in the original complaint, the court should not admit the supplemental complaint; the parties cannot introduce new and independent causes of action. (Leobera v. CA; G.R. No. 80001; Feb. 27, 1989). But the fact that the supplemental pleading technically states a new cause of action should not be a bar to its allowance but only a factor to be considered by the court in the exercise of its discretion; and of course, a broad definition of "cause of action" should be applied here as elsewhere. (Young v. Spouses Sy, G.R. Nos. 157745, Sep. 26, 2006). In one case, the plaintiff filed a supplemental pleading to include the payment of rental in arrears as well as damages due to the subsequent acts of the defendant of depriving the plaintiff of its rentals from a potential lessee pending its original suit of annulment of extrajudicial foreclosure and loan contracts. The court held that the new causes of action raised in the supplemental complaint are germane to, and are in fact, intertwined with the cause of action of nullification of the real estate mortgage and the extrajudicial foreclosure thereof, as well as the sale at public auction. (Planters Development Bank v. LZK Holdings & Development Corp., G.R. No. 153777, Apr. 15, 2005). Answer to Supplemental Pleading Not Mandatory The adverse party MAY plead thereto within 10 days from notice of the order admitting the supplemental pleading. (Sec. 6, Rule 10). Since it is not mandatory to file an answer, the court cannot declare respondent in default simply because the latter opted not to file an answer to the supplemental petition. (Chan v. Chan, G.R. No. 150746, Oct. 15, 2008). Filing Fees for a Supplemental Complaint Additional filing fees are due to a supplemental complaint and it is not for the party or the trial court to waive such payment. Failure to pay filing fees for supplemental complaint is fatal only for the supplemental complaint. The original complaint is not affected. (Do-All Metals Industries Inc., v. Security Bank, G.R. No. 176339, Jan. 10, 2011) Amended vs. Supplemental Pleading AMENDED SUPPLEMENTAL PLEADING PLEADING Refers to facts Refers to facts arising existing at the time of after the filing of the the commencement original pleading. of the action. Takes the place of the Taken together with original pleading. the original pleading. Can be made as a matter of right when no responsive pleading has yet been filed. Always with leave of court. Page 101 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 When an amended pleading is filed, a new copy of the entire pleading must be filed. An answer must be filed by the defendant; but an answer earlier filed may serve as the answer to the amended pleading. A supplemental pleading does not require the filing of a new copy of the entire pleading. The filing of an answer is not mandatory. G. SUMMONS 1. NATURE AND PURPOSE OF SUMMONS Nature of Summons Summons is a writ by which the defendant is notified of the action brought against him/her. Service of such writ is the means by which the court may acquire jurisdiction over his/her person. (Cano-Gutierrez v. Gutierrez, G.R. No. 138584, 2000) Purpose of Summons Its purpose is two-fold: to acquire jurisdiction over the person of the defendant and to notify the defendant that an action has been commenced so that he may be given an opportunity to be heard on the claim against him. (RIANO, 2019, p. 391). The service of summons is a vital and indispensable ingredient of due process and compliance with the rules regarding the service of the summons is as much an issue of due process as it is of jurisdiction. (Borlongan v. Banco de Oro, G.R. Nos. Apr. 5, 2017). Without service of summons, or when summons are improperly made, both the trial and the judgment, being in violation of due process, are null and void, unless the defendant waives the service of summons by voluntarily appearing and answering the suit. (Guiguinto Credit Cooperative, Inc. v. Torres, G.R. No. 170926, Sep. 15, 2006). REMEDIAL LAW a. In Relation To Actions In Personam, In Rem, And Quasi In Rem Summons in Actions In Personam Where the action is in personam, that is, one brought against a person on the basis of her personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. Service of summons upon the defendants is essential in order for the court to acquire jurisdiction over their persons. (Velayo-Fong v. Spouses Velayo, G.R. No. 155488, Dec. 6, 2006). In actions in personam, the judgment is for or against a person directly. Jurisdiction over the parties is required in actions in personam because they seek to impose personal responsibility or liability upon a person. (Frias v. Alcayde, G.R. No. 194262, Feb. 28, 2018). Knowledge of the Defendant of the Action Cannot Replace Service of Summons Jurisdiction of the court over the person of the defendant or respondent cannot be acquired notwithstanding his knowledge of the pendency of a case against him unless he was validly served with summons. Such is the important role a valid service of summons plays in court actions. (Frias v. Alcayde, G.R. No. 194262, Feb. 28, 2018). Deceased Person Cannot be Validly Served with Summons The lower court's judgment against the deceased is void for lack of jurisdiction over his person. Deceased was not, and could not have been, validly served with summons. He had no more civil personality. His juridical capacity, which is the fitness to be the subject of legal relations, was lost through death.” (Dumlao v. Quality Plastic Products Inc., G.R. No. L-27956, Apr. 30, 1976) Summons in Actions In Rem and Quasi In Rem An action in rem is an action against the thing itself instead of against the person. Meanwhile, an action quasi in rem is where an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or loan burdening the property. This is so inasmuch as, in in rem and quasi in rem actions, jurisdiction over the person of the defendant is not a Page 102 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. (Banco Do Brasil v. Court of Appeals, G.R. Nos. 121576-78, Jun. 16, 2000). Nevertheless, in a proceeding in rem or quasi in rem, summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements. (Gomez v. CA, G.R. No. 127692, Mar. 10, 2004) Jurisdiction over the res is acquired either (a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law; or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. (Alba v. Court of Appeals, G.R. No. 164041, Jul. 29, 2005). Acquiring Jurisdiction Over the Res Instead of the Person If the defendant is a non-resident, who remains beyond the range of the personal process of the court and he refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the property itself is in fact the sole thing which is impleaded and is the responsible object which is the subject of the exercise of judicial power. It follows that the jurisdiction of the court in such case is based exclusively on the power which, under the law, it possesses over the property. Upon acquisition of jurisdiction over the property, the court can validly hear the case. (El Banco Español-Filipino v. Palanca, G.R. No. L11390, Mar. 26, 1918). But it does not mean that notice or summons to the parties interested is not necessary. Due process still requires that they be notified and given an opportunity to defend their interest. (Gomez v. CA, G.R. No. 127692, Mar. 10, 2004) But in an action in rem or quasi in rem, where the defendant appears, the cause becomes mainly an action in personam. (El Banco Español-Filipino v. Palanca, G.R. No. L-11390, Mar. 26, 1918). REMEDIAL LAW b. When Summons Are Issued The court shall direct the clerk of court to issue the corresponding summons to the defendants within 5 calendar days from: 1. Receipt of the initiatory pleading; and 2. Proof of payment of the required legal fees. (Sec. 1, Rule 14). But the court will not issue the summons, and instead dismiss the case, if the complaint, on its face, shows: 1. That the court has no jurisdiction over the subject matter; 2. That there is another action pending between the same parties for the same cause; 3. That the action is barred by a prior judgment; 4. That the action is barred by the statute of limitations. (Id., Sec. 1, Rule 9). Within 30 calendar days from issuance of summons by the clerk of court and receipt thereof, the sheriff or process server, or person authorized by the court, shall complete its service. (Sec. 20, Rule 14). c. Content Of Summons Contents of and Attachments to the Summons The summons shall contain: 1. The name of the court and the names of the parties to the action; 2. When authorized by the court upon ex parte motion, an authorization for the plaintiff to serve summons to the defendant; 3. A direction that the defendant answer within the time fixed by these Rules; and 4. A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. (Sec. 2, Rule 14). Attached to the summons are: i. Copy of the complaint; and/or ii. Order for appointment of guardian ad litem, if any. (Id.). d. DUTY OF COUNSEL Under the 2019 Amendments, where the counsel for the defendant makes a special appearance to Page 103 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 question the validity of a summons invalidly served on his client, such counsel shall be deputized by the court to serve the summons to his or her client. (Sec. 13, Rule 14). e. Return Filing and Service of Return of Personal Service of Summons Within 5 calendar days from service of summons, the server shall file with the court and serve a copy of the return to the plaintiff's counsel, either: a. By personal service; b. By registered mail; or c. By electronic means authorized by the Rules. (Sec. 20, Rule 14). Filing and Service of Return of Substituted Service of Summons The return of substituted service of summon shall be filed and served in the same manner as that of personal service of summons. (Id.). REMEDIAL LAW 2. VOLUNTARY APPEARANCE As a general rule, defendant's voluntary appearance in the action shall be equivalent to service of summons, and filing a motion to dismiss constitutes voluntary appearance, except on the ground of lack of jurisdiction over the person of the defendant. (Sec. 23, Rule 14). Note: Under the 2019 Amendments, a motion to dismiss is a prohibited pleading unless it is based on the grounds of: lack of jurisdiction over the subject matter, res judicata, litis pendentia, or prescription. (Sec. 12, Rule 15). Even if jurisdiction was not originally acquired due to defective service of summons, the court acquires jurisdiction over his person by his act of subsequently filing a motion for reconsideration. (Soriano v. Palacio, G.R. No. L-17469, Nov. 28, 1964) 3. WHO MAY SERVE SUMMONS In addition, for substituted service, the return shall state: 1. The impossibility of prompt personal service within a period of 30 calendar days from issue and receipt of summons; 2. The date and time of the 3 attempts on at 2 two different dates to cause personal service and the details of the inquiries made to locate the defendant residing thereat; and 3. The name of either the: a. Person at least 18 years of age and of sufficient discretion residing thereat; b. Competent person in charge of the defendant's office or regular place of business; c. Officer of the homeowners' association or condominium corporation or its chief security officer in charge of the community or building where the defendant may be found. (Id.). Non-service or irregular service of summons may be a ground for dismissal for lack of jurisdiction over the person of the defending party. Who May Serve Summons The summons may be served by: a. Sheriff; b. Sheriff’s deputy; or c. Other proper court officers; d. Plaintiff, upon authorization of the court in cases where: a. Failure of the above to serve the summons, in which case it shall be served together with the sheriff; b. Summons is to be served outside the court’s judicial region; (Rule 14, Sec. 3); e. Counsel of the defendant, whereby he makes a special appearance to contest the improper service of summons and was thereafter deputized by the court to serve summons. (Sec. 13, Rule 14). Plaintiff’s Duties When Authorized to Serve Summons If the authorized plaintiff is a juridical entity, it shall notify the court, in writing: 1. That it is in fact a juridical entity; 2. The name of its duly authorized representative; Attached to the notice is the board resolution or secretary certificate stating that such Page 104 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 representative is duly authorized to serve the summons on behalf of the plaintiff. (Sec. 3, Rule 14). If summons is returned without being served on any or all the defendants, the court shall order the plaintiff to cause the service of summons by other means available under the Rules. And if, despite the order, the plaintiff still fails to serve the summons, the case shall be dismissed without prejudice. (Id.). The plaintiff, who is authorized to serve the summons, must not misrepresent that he had duly served the summons defendant. If it is proven that he committed such misrepresentation: 1. The case shall be dismissed with prejudice; 2. The proceedings shall be nullified; and 3. The plaintiff shall be appropriately sanctioned. (Id.). Validity of Summons Under the 2019 Amendments, summons shall remain valid until duly served, unless it is recalled by the court. (Sec. 4, Rule 14). Hence, there is no need to reissue an alias summons upon the failure of the sheriff to serve the summons. Alias Summons Upon motion by the plaintiff, the court may issue an alias summons in case of loss or destruction of the summons. (Id.). One issued by the clerk of court on demand of the plaintiff when the original summons was returned without being served on any or all of the defendants, or when summons has been lost. When issued, it supersedes the first summons. 4. PERSONAL SERVICE (SERVICE IN PERSON ON DEFENDANT) Personal Service of Summons – How Made Personal service of summons is made by: a. Handing a copy thereof to the defendant in person and informing the defendant that he or she is being served; or, b. If he or she refuses to receive and sign for it, by leaving the summons within the view and in the presence of the defendant (tendering the summons). (Sec. 6, Rule 14). The service of summons must be completed within 30 calendar days from issuance of summons by the clerk of court and receipt thereof by the sheriff or process server, or person authorized by the court. (Sec. 20, Rule 14). Summons may be served personally wherever the defendant is found within the Philippines. (Sansio Philippines Inc. v Sps, Mogol, G.R. No. 177007, Jul. 14, 2009). Personal service of summons has nothing to do with the location where summons is served. A defendant's address is inconsequential. Rule 14, Section 6 (now Section 5) of the 1997 Rules of Civil Procedure is clear in what it requires: personally handing the summons to the defendant (albeit tender is sufficient should the defendant refuse to receive and sign). What is determinative of the validity of personal service is, therefore, the person of the defendant, not the locus of service. (Spouses Manuel v. Ong, G.R. No. 205249, 2014) Against a NONRESIDENT, jurisdiction over the defendant is acquired by service upon his person while said defendant is within the Philippines. If the non-resident defendant is not in the Philippines, and the action is an action in personam, Philippine courts cannot acquire jurisdiction over the defendant, unless he voluntarily appears in court. (Macasaet v. Co, G.R. No. 156759, Jun. 5, 2013). SERVICE IN PERSON ON DEFENDANT (Rule 14, Sec. 5) Applies only to summons PERSONAL SERVICE (Rule 13, Sec. 6) Applies to all pleadings (except complaint), judgments, orders, and other papers and court submissions Page 105 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 SERVICE IN PERSON ON DEFENDANT (Rule 14, Sec. 5) 1. By handing a copy thereof to the defendant in person; 2. If he/she refuses to receive and sign for it, summons will be tendered by server to defendant. PERSONAL SERVICE (Rule 13, Sec. 6) 1. By delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof; 2. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. Note: Under service of pleadings, papers, and other court submissions, leaving copies thereof at the office of the party, counsel, or authorized representative or leaving it in his or her residence to a person of sufficient age or discretion is considered personal service. Meanwhile, under service of summons, the same manner of service is considered as substituted service. (see Sec. 6, Rule 13 and Sec. 6, Rule 14). Personal Service as the Preferred Mode Personal service of summons is the preferred mode. The rules on the service of summons other than by personal service may be used only as prescribed and only in the circumstances authorized by statute. Thus, the impossibility of prompt personal service must be shown. (Borlongan v. Banco de Oro, G.R. Nos. Apr. 5, 2017). REMEDIAL LAW Duty of the Sheriff Serving the Summons Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, and reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus, they are enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant. (Constantino Pascual v. Lourdes Pascual, G.R. No. 171916, 2009) 5. SUBSTITUTED SERVICE When Substituted Service Can Be Made Substituted service can be made if the defendant cannot be served personally for: 1. At least 3 attempts; and 2. On 2 different dates. (Sec. 6, Rule 14). There is failure of service after unsuccessful attempts to personally serve the summons on the defendant in his or her address indicated in the complaint. (Sec. 4, Rule 14). The service of summons must be completed within 30 calendar days from issuance of summons by the clerk of court and receipt thereof by the sheriff or process server, or person authorized by the court. (Sec. 20, Rule 14). Under the 2019 Amendments, the Court’s ruling in Manotoc vs. CA as regards the number of unsuccessful attempts of personal service of summons before resorting to substituted service, as well as the specific details required in the return, are now codified under Secs. 6 and 20 of Rule 14. (see Manotoc v. CA, G.R. No. 130974, Aug. 16, 2006). How Substituted Service Made Substituted service is effected by: a. Leaving copies of the summons at the defendant’s residence to a person: i. At least 18 years of age; ii. With sufficient discretion; and iii. Must be residing therein. Note: "Discretion" is defined as "the ability to make decisions which represent a Page 106 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 responsible choice and for which an understanding of what is lawful, right or wise may be presupposed". Thus, to be of sufficient discretion, such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. (Manotoc v. CA, G.R. No. 130974, Aug. 16, 2006). b. By leaving copies of the summons at the defendant's office or regular place of business with some competent person. A competent person includes, but is not limited to, one who customarily receives correspondences for the defendant; c. If the server is refused entry upon making his authority or purpose known, by leaving copies of the summons to the following: (a) Any officer of the homeowner’s association or condominium corporation; (b) Chief security officer in charge of the community or building where the defendant may be found. Note: It was not shown that the security guard who received the summons in behalf of the petitioner was authorized and possessed a relation of confidence that petitioner would definitely receive the summons. This is not the kind of service contemplated by law. Thus, service on the security guard could not be considered as substantial compliance with the requirements of substituted service. (Chu v. Mach Asia Trading, G.R. No. 184333, 2013) d. If allowed by the court, by sending an electronic mail to the defendant. (Sec. 6, Rule 14). The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective. (San Pedro v. Ong, G.R. No. 177598, Oct. 17, 2008). REMEDIAL LAW 6. CONSTRUCTIVE SERVICE a. Service Upon A Defendant Where His Identity Is Unknown Or Where His Whereabouts Are Unknown How Service of Summons Effected In any action, service of summons may be effected by publication in a newspaper of general circulation where: 1. A leave of court is secured; and 2. The defendant is designated as an unknown owner; or 3. The defendant’s whereabouts are unknown and cannot be ascertained by diligent inquiry, within 90 calendar days from the commencement of the action. (Sec. 16, Rule 14). Any order granting such leave shall specify a reasonable time, which shall not be less than 60 calendar days after notice, within which the defendant must answer. (Id.). The Rule expressly states that it applies "in any action…" Thus, it now applies to any action, whether in personam, in rem, or quasi in rem. (Santos, Jr. v. PNOC Exploration Corp., G.R. No. 170943, Sep. 23, 2008). Hierarchy in the Modes of Service It is not correct to proceed immediately to service by publication, as there is a hierarchy of rules in the service of summons, to wit: 1. Personal service; 2. Substituted service; and 3. Service by publication, whenever the defendant's whereabouts are unknown and cannot be ascertained by diligent inquiry. Only upon failure of the first two modes can service by publication can be made, in cases where the defendant’s identity or whereabouts are unknown. (RIANO, 2019, p. 423, citing Borlongan v. Banco de Oro, G.R. No. 217617, Apr. 5, 2017). Period to File an Answer Any order granting such leave shall specify a reasonable time, which shall not be less than 60 calendar days after notice, within which the defendant must answer. (Sec. 16, Rule 14). Page 107 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 b. Service Upon Residents Temporarily Outside The Philippines How Service of Summons Effected In any action where the defendant who resides in the Philippines is temporarily out of it, service may be effected by: a. Personal service; b. Substituted service (PCIB v. Alejandro, G.R. No. 175587, Sep. 21, 2007); c. As provided in international conventions where the Philippines is a party; d. By publication in a newspaper of general circulation in places and time as the court may order and a copy of the summons shall be sent by registered mail to the defendant’s last known address; and e. Any other manner as the court may deem sufficient. (Sec. 18, Rule 14 vis-à-vis Sec. 17, Rule 14). Leave of court is necessary to effect a service of summons on a resident defendant who is temporarily out of the Philippines. (Sec. 17, Rule 14). The Rule refers to “any action.” Thus, in actions in personam against residents temporarily out of the Philippines, the court need not always attach the defendant's property in order to have authority to try the case as jurisdiction may be acquired through substituted service or publication. (PCIB v. Alejandro, G.R. No. 175587). Period to File an Answer Any order granting such leave shall specify a reasonable time, which shall not be less than 60 calendar days after notice, within which the defendant must answer. (Sec. 18, Rule 14 vis-àvis Sec. 17, Rule 14). 7. EXTRATERRITORIAL SERVICE, WHEN ALLOWED When Extraterritorial Service Allowed Extraterritorial service of summons is allowed when: 1. The defendant is a non-resident; 2. He or she is not found in the Philippines; 3. The action involves: REMEDIAL LAW a. That which affects the personal status of the plaintiff; b. That which relates to or the subject matter of which is property within the Philippines, in which the defendant claims a lien or interest, actual or contingent; c. That in which the relief demanded consists, wholly or in part, in excluding the defendant from an interest in property located in the Philippines; or d. That in which the defendant property has been attached in the Philippines; and 4. Leave of court is secured. (Sec. 17, Rule 14). Extraterritorial service can only involve actions that are either in rem or quasi in rem. (Spouses Jose v. Spouses Boyon, G.R. No. 147369, Oct. 23, 2003). If the defendant is non-resident and, remaining beyond the range of the personal process of the court and he refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the property itself is in fact the sole thing which is impleaded and is the responsible object which is the subject of the exercise of judicial power. It follows that the jurisdiction of the court in such case is based exclusively on the power which, under the law, it possesses over the property. Upon acquisition of jurisdiction over the property, the court can validly hear the case. (El Banco Español-Filipino v. Palanca, G.R. No. L11390, Mar. 26, 1918). Note that in extraterritorial service, jurisdiction over the person of the defendant is not acquired. Nevertheless, summons must still be served to satisfy the requirements of due process. (Gomez v. CA, G.R. No. 127692, Mar. 10, 2004). In one case, the Court carved out a very narrow exception to the requirement of personal service. In said case, the Court deemed valid the summons to the non-resident defendant was served upon the resident spouse who was also the defendant’s attorney-in-fact. It was shown therein that the spouse had authority to sue on behalf of her husband, and in fact had done so, and had the power to represent him in suits against him. of, (Gemperle v. Schenker, G.R. No. L-18164, Jan 23, 1967). Page 108 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 How Extraterritorial Service of Summons Effected Extraterritorial service may be effected by: a. Personal service; b. As provided in international conventions where the Philippines is a party; c. By publication in a newspaper of general circulation in places and time as the court may order and a copy of the summons shall be sent by registered mail to the defendant’s last known address; and d. Any other manner as the court may deem sufficient. (Sec. 17, Rule 14). “In Any Other Manner the Court May Deem Sufficient” In one case, the leave granted by the lower court to effect extraterritorial service by means of registered mail sent by the clerk of court at the instance of the plaintiffs was considered valid as it falls under the last mode of extraterritorial service which is “in any other manner as the court may deem sufficient.” (Cariaga Jr. v. Malaya, G.R. No. L-48375, Aug. 13, 1986). Leave of Court Any application to the court under Rule 14 for leave to effect service in any manner for which leave of court is necessary shall be made by: 1. A motion in writing; 2. Supported by affidavit of the plaintiff or some person on his behalf; and 3. The motion shall set forth the grounds for the application. (Sec. 19, Rule 14). 8. SERVICE UPON PRISONERS AND MINORS; UPON SPOUSES REMEDIAL LAW Service Upon Minors and Incompetents When the defendant is a minor, insane or otherwise an incompetent person, service of summons shall be made: 1. Personally upon him or her; and 2. His or her legal guardian, if any; or in the absence of a legal guardian, his or her guardian ad litem, whose appointment shall be applied for by the plaintiff. (Sec. 10, Rule 14). If the defendant is a minor, service can also be made to his or her parent or guardian. (Id.). 9. SERVICE UPON DOMESTIC OR FOREIGN PRIVATE JURIDICAL ENTITY What are Domestic Private Juridical Entities A defendant is a domestic private juridical entity when it is a: a. Corporation; b. Partnership; or c. Association organized under the laws of the Philippines with a juridical personality. (Sec. 12, Rule 14). To Whom Summons on Domestic Private Juridical Entities May be Served Service of summons upon a domestic private juridical entity may be made on its: a. President; b. Managing partner; c. General manager; d. Corporate secretary; e. Treasurer; or f. In-house counsel. (Sec. 12, Rule 14). Service of summons may be made on the above persons wherever they may be found. (Id.). Service Upon Prisoners When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him or her by the officer having the management of such jail or institution who is deemed as a special sheriff for said purpose. (Sec. 8, Rule 14). The above list is “restricted, limited, and exclusive.” (Paramount Insurance Corp. v. A.C. Ordoñez Corporation, G.R. No. 175109, Aug. 6, 2003) The jail warden shall file a return 5 calendar days from service of summons to the defendant. (Id.). Note: under the 2019 Amendments, in the absence or unavailability of the foregoing persons, service may be made upon their secretaries. (Sec. 12, Rule 14). Page 109 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 If such service cannot be made upon any of the foregoing persons, it shall be made upon the person who customarily receives the correspondence for the defendant at its principal office. (Id.). Should there be a refusal on the part of the persons above-mentioned to receive summons despite at least 3 attempts on 2 different dates, service may be made electronically, if allowed by the court, as provided under Section 6 of this Rule. (Id.). How Summons on Domestic Private Juridical Entities May be Served Service of summons upon a domestic private juridical entity may be made in the following hierarchical order: 1. To the juridical entity’s president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel, wherever they may be found; 2. In the absence or unavailability of the foregoing, to their respective secretaries; 3. If service cannot be made to the foregoing persons or their secretaries, to the person who customarily receives the correspondence for the defendant at his principal office; and 4. Should there be refusal on the above-mentioned person to receive the summons despite at least 3 attempts on 2 different dates, service may be made electronically if allowed by the court. (Id.). Doctrine of Substantial Compliance The requisites for the application of the doctrine of substantial compliance are: 1. There must be actual receipt of the summons by the person served, i.e., transferring possession of the copy of the summons from the Sheriff to the person served; Note: Service of summons upon any of the enumerated persons in the respective modes allowed by Sec. 12, Rule 14 is deemed valid service of summons upon the domestic private juridical entity and not mere “substantial compliance”. 2. The person served must sign a receipt or the sheriffs return; and REMEDIAL LAW 3. There must be actual receipt of the summons by the corporation through the person on whom the summons was actually served. The third requisite is the most important for it is through such receipt that the purpose of the rule on service of summons is attained. (Porac Trucking, Inc. v. Court of Appeals G.R. No. 81093, Mar. 6, 1990). Service of Summons Upon Domestic Private Juridical Entity Under Receivership In case the domestic juridical entity is under receivership or liquidation, service of summons shall be made on the receiver or liquidator, as the case may be. (Sec. 12, Rule 14.). Types of Foreign Private Juridical Entity Under Sec. 14, Rule 14 and Secs. 140 and 150 of the Revised Corporation Code, the following are the types of foreign private juridical entities: a. Foreign private juridical entity doing business AND registered in the Philippines; b. Foreign private juridical entity doing business NOT registered in the Philippines’ c. Foreign private juridical entity NOT registered in the Philippines but transacted therein in an ISOLATED TRANSACTION. A duly registered foreign corporation has the power to sue and be sued. (Sec. 146, Revised Corporation Code). General Rule: A corporation not registered, but is doing business, or has transacted in a nonisolated manner shall have NO power to sue but it may be sued. (Sec. 150, Revised Corporation Code). Exceptions: a. Jurisprudence allows foreign corporations not registered but has dealt in an isolated transaction to sue pursuant to such transaction. (Rimbuan Group of Companies v. Oriental Wood Processing Corp., G.R. No. 152228, Sept. 23, 2005); b. Foreign corporations are also allowed to sue to protect its trade name or goodwill. (Philip Morris, Inc. v. Court of Appeals, G.R. No. 91332, Jul. 16, 1993). Page 110 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 To Whom Service of Summons Upon Foreign Private Juridical Entity Registered in the Philippines is Made When the defendant is a registered foreign private juridical entity which is doing business in the Philippines, as defined by law, summons may be served on: a. Its resident agent designated in accordance with law for that purpose; or b. If there be no such agent, the government official designated by law to that effect; or c. On any of its officers, agents, directors or trustees within the Philippines. (Sec. 14, Rule 14). To Whom Service of Summons Upon Foreign Private Juridical Entity Not Registered in the Philippines But Has Transacted or is Doing Business in the Philippines Meanwhile, when the defendant is a foreign private juridical entity NOT registered but has transacted or is doing business in the Philippines or has transacted therein, by leave of court, summons may be served to: i. The government official designated by law to that effect; ii. Any of its officers, agents, directors or trustees within the Philippines. Furthermore, such foreign private juridical entities may be served with summons through the following means: a. By personal service coursed through the appropriate court in the foreign country with the assistance of the department of foreign affairs; b. By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by registered mail at the last known address of the defendant; c. By facsimile; d. By electronic means with the prescribed proof of service; or e. By such other means as the court, in its discretion, may direct. (Id.). REMEDIAL LAW Service of Summons Upon Public Corporations When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General. (Sec. 15, Rule 14). In case the defendant is a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. Service of Summons Upon Entities Without Juridical Personality When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon: a. Any one of them; or b. Upon the person in charge of the office or place of business maintained in such name. (Sec. 7, Rule 14). However, such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (Id.). 10. PROOF OF SERVICE Proof of Service for Personal or Substituted Service of Summons For personal or substituted service of summons, proof of service shall be made: 1. In writing by the server; 2. Shall set forth the manner, place, and date of service; 3. Shall specify any papers which have been served with the process and the name of the person who received the same; and 4. Shall be sworn to when made by a person other than a sheriff or his or her deputy. (Sec. 21, Rule 14). In addition, for substituted service, the return of the summons shall state the required details under Sec. 20, Rule 14 (see discussions on Return). The certificate of service of the process server of the court a quo is prima facie evidence of the facts Page 111 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 as set out therein. This is fortified by the presumption of the regularity of performance of official duty. To overcome the presumption of regularity of official functions in favor of such sheriff’s return, the evidence against it must be clear and convincing. Sans the requisite quantum of proof to the contrary, the presumption stands deserving of faith and credit. (Guanzon v. Arradaza, G.R. No. 155392, Dec. 12, 2006) The impossibility of personal service justifying availment of substituted service should be explained in the proof of service; and why efforts exerted towards personal service failed. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return; otherwise, the substituted service cannot be upheld. (Samartino v. Raon et. al., G.R. No. 131482, Jul. 3, 2002). Proof of Service of Summons by Electronic Mail If summons was served by electronic mail, the proof of service shall be: 1. A printout of said e-mail, with a copy of the summons as served; and 2. An affidavit of the person mailing. (Sec. 21, Rule 14). Proof of Service by Publication Proof of service of summons by publication shall be proven by: 1. Affidavit of the publisher, editor, business or advertising manager, to which a copy of the publication shall be attached; and 2. Affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his or her last known address. (Sec. 22, Rule 14). A motion is an application made to a court or judge for the purpose of obtaining a rule or order directing some act to be done in favor of the applicant. (Donton v. Loria, A.M. No. P-03-1684, March 10, 2006). b. Distinguish: Motion And Pleadings Motion vs. Pleading PLEADING MOTION Written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Sec. 1, Rule 6). An application, other than a pleading, made to a court or judge for the purpose of obtaining a rule or order directing some act to be done in favor of the applicant. (Sec. 1, Rule 15; Donton v. Loria). Cannot be initiatory as motions are made in a case already filed in court (see Rimbunan Hijau Group v. Oriental Wood Processing G.R. No. 152228, Sep. 23, 2005). May be written or oral when made in open court or in the course of a hearing or a trial (Sec. 2, Rule 15). May be filed after judgment (e.g., motion for new trial or reconsideration, see Rule 37). May be initiatory (see Sec. 2, Rule 6). Must be written (Sec. 1, Rule 6). Must be filed before judgment because it is subject to adjudication. (Sec. 1, Rule 6). c. Contents And Form Of Motions H. MOTIONS 1. MOTIONS IN GENERAL a. Definition Of A Motion An application for relief other than by a pleading. (Sec. 1, Rule 15). Form of Motions Generally, motions shall be in writing, unless made in open court or in the course of a hearing or trial. If made in open court or during trial, the motion must be immediately resolved after the adverse party is given the opportunity to argue his or her opposition. (Sec. 2, Rule 15). Page 112 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW When a motion is based on facts not appearing on record, the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (Id.). Litigious motions shall be served by personal service, accredited private courier, registered mail, or by electronic means so as to ensure their receipt by the other party. (Sec. 5 (b), Rule 15). No written motion shall be acted upon by the court without proof of service thereof. (Sec. 7, Rule 15). The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. (Sec. 11, Rule 15). No other submissions shall be considered by the court in the resolution of the motion except for the opposition of the adverse party to the motion, which must be filed within 5 days from receipt of the motion. (Sec. 5 (c), Rule 15). Contents of a Motion 1. Statement of relief sought to be obtained. 2. Grounds upon which the motion is based. 3. Supporting affidavits and other papers when required by the Rules or when necessary to prove facts stated in motion. (Sec. 3, Rule 15). A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. (Sec. 10, Rule 15) d. Litigious And Non-Litigious Motions; When Notice Of Hearing Necessary Litigious Motions Litigated (Litigious) motions are those which the Rules call for the service of copy thereof upon the opposing party and which may be set for hearing. (Tabujara III v. Gonzales-Asdala, A.M. No. RTJ08-2126, Jan. 20, 2009). The following are litigious motions: 1. Motion for bill of particulars; 2. Motion to dismiss; 3. Motion for new trial; 4. Motion for reconsideration; 5. Motion for execution pending appeal; 6. Motion to amend after a responsive pleading has been filed; 7. Motion to cancel statutory lien; 8. Motion for an order to break in or for a writ of demolition; 9. Motion for intervention; 10. Motion for judgment on the pleadings; 11. Motion for summary judgment; 12. Demurrer to evidence; 13. Motion to declare defendant in default; and 14. Other similar motions. (Sec. 5 (a), Rule 15). The court shall resolve the motion within 15 calendar days from receipt of the opposition or upon the lapse of the period to file the same. (Id.). The court, in its discretion and if it deems it necessary, may call a hearing on the litigious motion. The notice of hearing shall be addressed to all parties concerned and shall specify the time and date of the hearing. (Sec. 6, Rule 15). Motions are generally set for hearing on a Friday, unless they require immediate action. (Sec. 8, Rule 15). Note that the rule requiring the notice to be given to the adverse party at least 3 days prior to the hearing day (3-day notice rule) AND the rule requiring the hearing to be set not later than 10 days from the filing of the motion was REMOVED by the 2019 Amendments. Non-Litigious Motions Motions which the court may act upon without prejudicing the rights of adverse parties are nonlitigious motions. They shall not be set for hearing and shall be resolved by the court within 5 calendar days from receipt thereof. (Sec. 4, Rule 15). The following are non-litigious motions: 1. Motion for the issuance of an alias summons; 2. Motion for extension to file answer; 3. Motion for postponement; 4. Motion for the issuance of a writ of execution; 5. Motion for the issuance of an alias writ of execution; Page 113 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 6. Motion for the issuance of a writ of possession; 7. Motion for the issuance of an order directing the sheriff to execute the final certificate of sale; and 8. Other similar motions. (Id.). The notice requirement does not apply to motions which may be heard ex-parte (non-litigious). The reason for this is that these motions are noncontentious and do not as a rule involve the substantial rights of the other parties in the suit. (Denso (Phils.), Inc. v. Intermediate Appellate Court, G.R. No. 75000, Feb. 27, 1987). Litigious vs. Non-litigious Motions LITIGIOUS NON-LITIGIOUS MOTIONS MOTIONS Motions which are Motions which the allowed to be court may act upon opposed and may be without prejudicing set for hearing. (Sec. the rights of adverse 5(c), Rule 15). parties and are not set for hearing. (Sec. 4, Rule 15). Must be served to the Need not be served to adverse party and the adverse party. service must be duly (Id.). proven. (Sec. 5 (b), Sec. 7, Rule 15). Opposition to the No opposition may be motion may be filed. filed. (Id.). (Sec. 5(c), Rule 15) Resolved by the court within 15 days from the filing of the opposition or from the expiration to file the same, unless the court decide to set the motion for hearing. (Sec. 5(c), Rule 15) Resolved by the court within 5 calendar days from receipt thereof. (Sec. 4, Rule 15). e. Omnibus Motion Rule The omnibus motion rule is a procedural principle which requires that every motion that attacks a pleading, judgment, order or proceeding shall include ALL objections THEN AVAILABLE and all REMEDIAL LAW objections not so included shall be deemed WAIVED. (Sec. 9, Rule 15). This is in conjunction with Sec. 1 of Rule 9 which requires that defenses and objections must be pleaded in either the answer or in a motion to dismiss, otherwise, they are deemed waived. Exceptions to the Omnibus Motion Rule The following grounds, although not raised, are not deemed waived: a. Lack of jurisdiction over subject matter; b. Litis pendentia; c. Res judicata; and d. Prescription. (Sec. 1, Rule 9) f. Prohibited Motions The following are prohibited motions: 1. Motion to dismiss, except for certain grounds; 2. Motion to hear affirmative defenses; 3. Motion for reconsideration of the court's action on the affirmative defenses; 4. Motion to suspend proceedings without a temporary restraining order or injunction issued by a higher court; 5. Motion for extension of time to file pleadings, affidavits or any other papers, except a motion for extension to file an answer; 6. Motion for postponement intended for delay, save for certain exceptions. (Sec. 12, Rule 15). Motion to Dismiss A motion to dismiss is now a prohibited motion, save for the following grounds: a. Lack of jurisdiction of the court over the subject matter; b. Litis pendentia; c. Res judicata; and d. Prescription. (Sec. 12 (a), Rule 15). Motion to Hear Affirmative Defenses Under Sec. 12 (c) of Rule 8, the court shall motu propio resolve the affirmative defenses. Thus, a motion to hear affirmative defenses is not allowed. However, for affirmative defenses under the first paragraph of Section 5 (b) of Rule 6, the court MAY opt to conduct a summary hearing. (See Sec. 12 (c) and (d) of Rule 8; Sec 5 (b), Rule 6). Page 114 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Note: See previous discussion on Affirmative Defenses. REMEDIAL LAW 2. MOTIONS FOR BILL OF PARTICULARS a. Purpose And When Applied For Motion for Reconsideration of the Court's Action on the Affirmative Defenses Affirmative defenses, if denied, shall not be the subject of a motion for reconsideration or petition for certiorari, prohibition or mandamus, but may be among the matters to be raised on appeal after a judgment on the merits. (Sec. 12 (e), Rule 8). Motion to Suspend Proceedings Without A Temporary Restraining Order Or Injunction Issued By A Higher Court Under the 2019 Amendments, a motion to suspend proceedings cannot be filed unless supported by a temporary restraining order or an injunction coming from a higher court. (Sec. 12 (d), Rule 15). Motion for Extension of Time to File Pleadings, Affidavits or Any Other Papers A motion for extension to file any pleading, other than an answer, is prohibited and considered a mere scrap of paper. The court, however, may allow any other pleading to be filed after the time fixed by these Rules. (Sec. 11, Rule 11). A motion for extension to file an answer can only be filed ONCE. (Id.). Motion for Postponement Intended for Delay Generally, a motion to postpone proceedings is not allowed, except if it is based on: a. Acts of God; b. Force majeure; or c. Physical inability of the witness to appear and testify. (Sec. 12 (f), Rule 15). The presentation of evidence must still be terminated on the dates previously agreed upon despite the grant of the motion to postpone the proceedings. (Id.). The postponement fee must be duly paid, and the official receipt evidencing the payment must be filed together with the motion, or to be submitted on the next hearing day. Otherwise, the motion will not be accepted. (Id.). Purpose of a Bill of Particulars A bill of particulars is a complementary procedural document consisting of an amplification or more particularized outline of a pleading, and being in the nature of a more specific allegation of the facts recited in the pleading. It is the office of the bill of particulars to inform the opposite party and the court of the precise nature and character of the cause of action or defense which the pleader has attempted to set forth and thereby to guide his adversary in his preparations for trial, and reasonably to protect him against surprise at the trial. (Virata v. Sandiganbayan, G.R. No. 114331, May 27, 1997). A motion for a bill of particulars may be addressed to any pleading, and is not merely limited to a complaint. (RIANO, 2019, p.435). An allegation that the “defendant acted in unlawful concert with the other defendant in illegally amassing assets, property and funds in amounts disproportionate to the latter’s income,” is a proper subject of a motion for bill of particulars. Plaintiff is bound to clarify the specific nature, manner and extent of the alleged collaboration between the defendants. Allegations couched in general terms are not statements of ultimate facts. (Republic v Sandiganbayan, G.R. No. 148154, Dec. 17, 2007) A bill of particulars becomes part of the pleading for which it is intended. (Sec 6, Rule 12) When Bill of Particulars is Applied For A motion for a bill of particulars must be filed BEFORE responding to a pleading. (Sec. 1, Rule 12) If the pleading is a reply, the motion must be filed within 10 calendar days from service thereof. (Id.). Contents of the Motion The motion for bill of particulars shall point out: 1. Defects complained of; 2. The paragraphs wherein they are contained; 3. The details desired by the movant. (Id.). Page 115 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 b. Actions Of The Court Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court. Thereafter, the court may: a. Deny the motion outright; b. Grant the motion outright; or c. Allow the parties the opportunity to be heard. (Sec. 2, Rule 15). c. Compliance With The Order And Effect Of Non-Compliance Compliance When the motion is granted (in whole or in part), compliance must be effected within 10 calendar days from notice of the order, unless the court fixes a different period. (Sec. 3, Rule 12). In complying with the order, the pleader may file and serve to the adverse party the bill of particulars either: a. In a separate pleading; or b. In the form of an amended pleading. (Id.). Effect of Noncompliance or Insufficient Compliance If the order is not obeyed or the compliance therewith is insufficient, the court may: a. Order striking out of the pleading; b. Order striking out portions of pleading to which the order was directed; c. Make such other order as it deems just; (Sec. 4, Rule 12). d. Effect On The Period To File A Responsive Pleading Filing of bill of particulars stays the period to file a responsive pleading. (Sec. 5, Rule 12). Movant may file his responsive pleading within the period to which he is entitled (balance of reglementary period) at the time the bill of particulars is filed, which shall NOT be less than FIVE (5) DAYS in any event AFTER: a. Service of the bill of particulars upon him; or b. Notice of the denial of his motion. (Id.). REMEDIAL LAW When Filing for a Bill of Particulars is Not Appropriate A motion for bill of particulars will not be granted if the complaint, while not very definite, nonetheless already states a sufficient cause of action. A motion for bill of particulars may not call for matters which should form part of the proof of the complaint upon trial. Such information may be obtained by other means. (Salita v. Magtolis, G.R. No. 106429, Jun. 13, 1994). It would not be proper for a motion for a bill of particulars to call for the production of particulars constituting malice, intent, knowledge, or conditions of the mind as such matters may be averred generally. (RIANO, 2019, p. 436). I. DISMISSAL OF ACTIONS 1. DISMISSAL WITH PREJUDICE A dismissal with prejudice bars the refiling of the complaint and, when the law permits, is subject to the right of appeal. (Heirs of Sadhwani v. Sadhwani, G.R. No. 217365, Aug. 14, 2019). Dismissal Due to the Fault of the Plaintiff – With Prejudice The complaint may be dismissed upon motion of the defendant or upon the court's own motion and shall have the effect of an adjudication on the merits, unless otherwise declared by the court, if for no justifiable cause the plaintiff: a. Fails to appear on the date of the presentation of his or her evidence in chief on the complaint; b. Fails to prosecute his or her action for an unreasonable length of time; or c. Does not comply with the Rules of Court or any order of the court. (Sec. 3, Rule 17). In granting the dismissal, the trial court specifically orders the dismissal to be without prejudice. In case of dismissal due to plaintiff’s failure to prosecute, it is only when the trial court's order is either silent on the matter, or states otherwise, that the dismissal will be considered an adjudication on Page 116 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 the merits. (Ching v. Cheng, G.R. No. 175507, Oct. 8, 2014). The fundamental test for non prosequitur is whether, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. There must be unwillingness on the part of the plaintiff to prosecute. (Shimizu Philippines Contractors v. Magsalin, G.R. No. 170026, June 20, 2012). Dismissal for failure to prosecute is an adjudication on the merits. Therefore, such dismissal should be challenged by APPEAL within the reglementary period. (3A Apparel Corporation vs. Metropolitan Bank and Trust Co. G.R. 186175, Aug. 23, 2010). Dismissals with Prejudice by Motion to Dismiss or Affirmative Defenses Subject to the right of appeal, an order granting a motion to dismiss or an affirmative defense based on the following shall bar the refiling of the same action: i. Res judicata; ii. Prescription; or iii. The claim or demand of the plaintiff has been: (i) Paid; (ii) Waived; (iii) Abandoned; (iv) Extinguished; or (v) Unenforceable under the Statute of Frauds. (Sec. 13, Rule 15). Other Dismissals With Prejudice The following dismissal shall likewise bar the refiling of the same action: i. Willful and deliberate forum shopping by the party or his or her counsel (Sec. 5, Rule 7); ii. Plaintiff’s misrepresentation that he or she has served summons to the defendant, in cases where plaintiff is authorized by the court to serve summons. (Sec. 3, Rule 14); iii. Failure of the plaintiff or counsel to appear, without valid cause, during the pre-trial, courtannexed mediation, and judicial dispute resolution (Secs. 3 and 5, Rule 18); iv, Failure of the party to file his or her pre-trial brief (Sec. 5 and 6, Rule 18); REMEDIAL LAW v. Dismissal by notice of the plaintiff where such notice provides that the dismissal is with prejudice (Sec. 1, Rule 17); vi. Dismissal by notice of the plaintiff covered by the two-dismissal rule (Id.); vii. Dismissal by motion of the plaintiff and the court orders that it is with prejudice. (Sec. 2, Rule 17). The above dismissals are subject to the right of appeal. (see Sec. 1, Rule 41). The Rules of Court accommodates the outright dismissal of a complaint upon plaintiff's failure to show justifiable reason for not setting the case for pre-trial within the period provided by the Rules. Although Section 1, Rule 14 of the Rules imposes upon the clerk of court the duty to serve summons, this does not relieve the petitioner of her own duty as the plaintiff in a civil case to prosecute the case diligently, and if the clerk had been negligent, it was petitioner's duty to call the court's attention to that fact. (Bank of the Philippine Islands v. Spouses Genuino, G.R. No. 208792, July 22, 2015.) 2. DISMISSAL UPON NOTICE BY PLAINTIFF When Dismissal By Notice Allowed A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before: a. Service of the answer; or b. Motion for summary judgment. (Sec. 1, Rule 17). After the notice has been filed, the court shall issue an order confirming the dismissal. (Id.). But in case of a class suit, dismissal of the action requires approval of the court. (Sec. 2, Rule 17). It is not the order confirming the dismissal which operates to dismiss the complaint. Said order merely confirms a dismissal already effected by the filing of the notice of dismissal. (RIANO, 2019, p. 457). The trial court has no choice but to consider the complaint as dismissed, since the plaintiff may opt for such dismissal as a matter of right, regardless of the ground. Upon filing of notice, the motion to Page 117 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW dismiss by the defendants therein is rendered moot and academic. (Dael v. Spouses Beltran, G.R. No. 156470, Apr. 30, 2008). 3. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM Dismissal By Notice - Without Prejudice As a general rule, dismissal by notice of the plaintiff is without prejudice to the refiling of the same action, except: a. The notice expressly provides that the dismissal is with prejudice; or b. The dismissal is covered by the two-dismissal rule. (Sec. 1, Rule 17). When Dismissal by Motion is Required If an answer or a motion for summary judgment has already been served, a complaint shall be dismissed only upon motion of the plaintiff and by approval of the court, based on such terms and conditions as the it deems proper. (Sec. 2, Rule 17). But even if the notice of dismissal does not expressly state that it is with prejudice, the dismissal shall be considered with prejudice if the notice provides a reason that bars the refiling of the complaint. This happens when, for instance, the reason for the dismissal was that the defendant has already paid the claim, or the plaintiff recognizes that his claim is barred by prescription. (RIANO, 2019, p. 458). Two-dismissal Rule The notice operates as an adjudication upon the merits when: 1. Filed by the same plaintiff; 2. The same plaintiff has once dismissed an action in a competent court by notice; 3. The second action is based on or including the same claim as the first action. 4. The second action was also dismissed by mere notice of the plaintiff. (Sec. 1, Rule 17). The Two-dismissal Rule applies only when both dismissals (the first and the second), were at the instance of the plaintiff. Here, the dismissal of the first case was at the instance of the defendant (motion to dismiss on the ground of lack of jurisdiction over the subject matter), while that of the second case was at the instance of the plaintiff. The circumstances surrounding each dismissal must first be examined to determine before the rule may apply, as in this case. (Ching v. Cheng, G.R. No. 175507, Oct. 8, 2014). Dismissal by Motion of Plaintiff – Without Prejudice The dismissal by motion of the plaintiff is without prejudice to the refiling of the same, unless the order of dismissal specifies that it is with prejudice. (Sec. 2, Rule 17). Effect of Dismissal by Motion on Prescriptive Period The dismissal upon motion by plaintiff is NOT for the purpose of voluntarily abandoning his claim when the intention was to expedite the enforcement of his rights and there was clearly no inaction nor lack of interest on his part. In prescription, there must be a categorical showing that due to plaintiff's negligence, inaction, lack of interest, or intent to abandon a lawful claim or cause of action, no action whatsoever was taken. Prescription, therefore, does not run. (Antonio, Jr. vs. Morales G.R. 165552, Jan. 23, 2007). Effect on Dismissal by Motion on the Counterclaim The dismissal of the action by motion shall not affect the right of the defendant to prosecute his counterclaim either: a. In a separate action; or b. In the same action, after manifesting his intention to do so within 15 calendar days from the filing of the motion to dismiss by the plaintiff. (Sec. 2, Rule 17). The dismissal of the complaint does not necessarily carry with it the dismissal of the counterclaim, compulsory or otherwise. The dismissal of the complaint is without prejudice to the right of the defendants to prosecute the Page 118 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 counterclaim. (Pinga v. Santiago, G.R. No. 170354, Jun. 30, 2006) Three Situations Involving the Effect of a Dismissal of a Complaint on the Counterclaim Already Set Up 1. When the defendant files an answer raising therein an affirmative defense, as well as a counterclaim, and upon hearing of the affirmative defenses, the court dismisses the case – Under Rule 16, Sec. 6 of the1997 Rules on Civil Procedure, the dismissal of the complaint shall be without prejudice to the prosecution of the counterclaim in the same or a separate action. Note: Rule 16 has been entirely deleted in the 2019 Amendments. The previous grounds for a motion to dismiss are now affirmative defenses, with certain exceptions. (see discussions on affirmative defenses and motions; see also Sec. 12, Rule 8 and Sec. 12(a), Rule 15) ii. When the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim, and the court grants the motion - Again, the dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within 15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. (Sec. 2, Rule 17). REMEDIAL LAW counterclaim also cannot survive. Conversely, if the counterclaim itself states sufficient cause of action then it should stand independently and survive the dismissal of the complaint. (Perkin Elmer Singapore Pte. Ltd. vs. Dakila Trading Corporation G.R. 172242, Aug. 14, 2007) 4. DISMISSAL DUE TO FAULT OF PLAINTIFF Note: see discussions on Dismissals Due to the Fault of the Plaintiff under Dismissals With Prejudice 5. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT The provisions under Rule 17 apply to the dismissal of any counterclaim, cross-claim or thirdparty complaint. (Sec 4. Rule 17). A voluntary dismissal of the counterclaim, crossclaim, or third-party claim by notice of the claimant can be made before: a. Service of a responsive pleading thereto; b. Service of a motion for summary judgment; or c. In the absence of a responsive pleading and motion for summary judgment, before the introduction of evidence. (Id.). J. PRE-TRIAL iii. When complaint is dismissed through the plaintiff’s fault and at a time when a counterclaim has already been set up - The dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in the same or separate action. (Sec. 3, Rule 17). The phraseology of the provision is clear: the counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim, because the rules make no distinction. (RIANO, 2019, p. 461). If the dismissal of the complaint somehow eliminates the cause of the counterclaim, then the 1. CONCEPT OF PRE-TRIAL Concept under A.M. No. 03-1-9-SC An undeniably important and vital component of case management in trial courts, the purpose of which is to abbreviate court proceedings, ensure prompt disposition of cases and decongest court dockets. Pre-trial shall endeavor to persuade the parties to arrive at a settlement of the dispute, with due regard to the rights of the parties. The court shall endeavor to make the parties agree to an equitable compromise or settlement at Page 119 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 any stage of the proceedings before rendition of judgment. Concept Derived from Jurisprudence Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised. To eliminate the element of surprise during actual trial, parties are expected to disclose at the pre-trial conference all issues of law and fact that they intend to raise at the trial. However, in cases in which the issue may involve privileged or impeaching matters, or if the issues are impliedly included therein or may be inferable therefrom by necessary implication as integral parts of the pre-trial order, then the general rule does not apply. A pre-trial order is not meant to be a detailed catalogue of each and every issue that is to be or may be taken up during the trial. (LCK Industries v. Planters Development Bank, G.R. No. 170606, 2007) 2. NATURE AND PURPOSE Nature of Pre-trial Pre-trial is mandatory and should be terminated promptly. (Rule 18, Sec. 2) The pre-trial is mandatory BOTH in civil and in criminal cases. (Rule 118, Sec. 1) Purpose of Pre-trial The purpose of the pre-trial is to allow the court to consider: 1. The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; 2. The simplification of the issues; 3. The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; 4. The limitation of the number and identification of witnesses and the setting of trial dates 5. The advisability of a preliminary reference of issues to a commissioner; 6. The propriety of rendering judgment on the pleadings, or summary judgment, or dismissing the action should a valid ground exist; 7. The requirement of the parties to: (1) Mark their respective evidence if not yet marked in the judicial affidavits of their witnesses REMEDIAL LAW (2) Examine and make comparisons of the adverse parties’ evidence vis-à-vis the copies to be marked (3) Manifest for the record stipulations regarding the faithfulness of the reproductions and the genuineness and dues execution of the adverse parties’ evidence (4) Reserve evidence not available at pre-trial, but only in the following manner: a. For testimonial evidence – by giving the name or position and the nature of the testimony of the proposed witness b. For documentary evidence and other object evidence – by giving particular description of the evidence; and 8. Such other matters as may aid in the prompt disposition of the action. (Rule 18, Sec. 2) Setting for Pre-Trial The pre-trial brief serves as a guide during the pretrial conference so as to simplify, abbreviate and expedite the trial if not to dispense with it. It is a devise essential to the speedy disposition of disputes, and parties cannot brush it aside as a mere technicality. In addition, pre-trial rules are not to be belittled or dismissed, because their nonobservance may result in prejudice to a party’s substantive rights. Like all rules, they should be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thought[less]ness in not complying with the procedure. (Eufemia Balatico vda. De Agatep vs Roberta L. Rodriguez and Natalia Aguinaldo Vda. De Lim, G.R. No. 170540, 2009) Stipulations freely and voluntarily made are valid and binding and will not be set aside unless for good cause. The Rules of Court mandate parties in a criminal case to stipulate facts. Once they have validly and voluntarily signed the stipulations, the accused and their counsel may not set these aside on the mere pretext that they may be placed at a disadvantage during the trial. (Sixto Bayas vs Sandiganbayan, G.R. No. 143689-91, 2002). Page 120 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 3. NOTICE OF PRE-TRIAL When Pre-trial is Conducted; When Notice of Pre-trial is Sent After the last responsive pleading has been served and filed, the branch clerk of court shall issue, within five (5) calendar days from filing, a notice of pretrial which shall be set not later than sixty (60) calendar days from the filing of the last responsive pleading. (Rule 18, Sec. 1). Note that even prior to the amendment, A.M. No. 03-1- 09-SC, July 13, 2004 provides that within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the branch clerk of court shall issue a notice of pretrial. With that administrative matter, it became the duty of the clerk of court to set the case for pre-trial if the plaintiff fails to do so within the prescribed period; however this did not relieve the plaintiff of his own duty to prosecute the case diligently. (Bank of the Philippines v. Genuino, G.R. No. 208792, Jul. 22, 2015). With the amendment, there is no need for the plaintiff to file or the clerk of court to await the lapse of the period to file an ex-parte motion to set case for pretrial, before a notice of pre-trial shall be issued. (Rule 18, Sec. 1) Branch clerk of court shall also prepare the minutes of the pre-trial. (Rule 18, Sec. 2) Contents of Notice of Pre-trial Notice of pre-trial shall include the dates respectively set for: 1. Pre-trial; 2. Court Annexed Mediation; and 3. Judicial Dispute Resolution, if necessary. (Rule 18, Sec. 3) Notice shall be served on: 1. Counsel; and 2. The party himself, if he or she has no counsel. (Rule 18, Sec. 3) REMEDIAL LAW 4. APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR Duty to Appear During Pre-Trial Parties and their counsel both have the duty to appear during the pre-trial, court-annexed mediation, and judicial dispute resolution, if necessary. Non-appearance may be excused only for: a. Acts of God; b. Force Majeure; or c. Duly substantiated physical inability. (Rule 18, Sec. 4). The parties and their counsels are required to attend the pre-trial the purpose of which is to exhaust all possibilities of reaching a compromise. Having failed to justify their absence, they have no valid ground to request for a new trial. Further, an improvident termination of legal services is not a valid excuse to be absent at the pretrial. (Jonathan Landoil International Co v Sps. Mangudadatu, G.R. No. 155010, 2004) Representative to Appear on Behalf of Party A representative may appear on behalf of a party, but must be fully authorized in writing to enter into: 1. An amicable settlement; 2. To submit to alternative modes of dispute resolution; and 3. To enter into stipulations or admissions of facts and of documents. (Rule 18, Sec. 4). The authorization in writing must be in the form of a special power of attorney. Entering into an amicable settlement for a client, who is the principal in the attorney-client relationship, involves entering into a compromise. (RIANO, 2019, p. 471, see also Civil Code, Article 1878(3)). Failure to Appear During Pre-trial Despite Notice If plaintiff AND counsel failed to appear without valid cause when so required: 1. The case shall be dismissed with prejudice unless otherwise ordered by the court; OR 2. The plaintiff will be allowed to present evidence ex-parte within ten (10) calendar days from Page 121 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW termination of pre-trial, and the court shall render judgment on the basis of the evidence offered. (Rule 18, Sec. 5); AND 3. The party shall be deemed to waive any objects to the faithfulness of the reproductions marked, or their genuineness and due execution. (Rule 18, Sec. 2). 7. A brief statement of points of law and citation of authorities. (Rule 18, Sec. 6(a) to (g)). The dismissal is to be considered as a final judgment; thus, the remedy of the plaintiff is to appeal. Since appeal is available, certiorari is not the remedy because it is conditioned upon the absence of an appeal or any plain, speedy, and adequate remedy in the ordinary course of Having no counsel in a civil case is not a reasonable excuse to not file a pre-trial brief. It does not also deprive one of due process. Failure to file a pre-trial brief will have the same effect as not appearing during pre-trial. (Saguid v. CA, G.R. 150611, 2003). Failure to Bring Evidence During Pre-trial Despite Notice Failure without just cause of a party AND/OR counsel to bring the evidence required shall be deemed a waiver of the presentation of such evidence. (Rule 18, Sec. 2) 6. PRE-TRIAL ORDER Failure to Appear in Court Annexed Mediation and Judicial Dispute Resolution Non-appearance at court annexed mediation and judicial dispute resolution shall be deemed as nonappearance at the pre-trial and shall merit the same sanctions. (Rule 18, Sec. 3) 5. PRE-TRIAL BRIEF; EFFECT OF FAILURE TO FILE Filing and Contents of the Pre-trial Brief A pre-trial brief is required to be filed at least three (3) calendar days before the date of the pre-trial conference and it must also be served on the adverse party. (Rule 18, Sec. 6). The pre-trial brief shall contain the following: 1. A concise statement of the case and the reliefs prayed for; 2. A summary of admitted facts and proposed stipulation of facts; 3. The main factual and legal Issues to be tried or resolved; 4. The propriety of referral or factual issues to commissioners; 5. The documents or other object evidence to be marked, stating the purpose thereof; 6. The names of witnesses, and the summary of their respective testimonies; and Effect of Failure to File a Pre-Trial Brief Failure to file the pre-trial brief shall have the same effects as failure to appear at the pre-trial. (Rule 18, Sec. 6). Contents of Pre-Trial Order Upon termination of the pre-trial, the court shall issue an order within ten (10) calendar days which shall recite in details the matters taken up during the pre-trial. This shall include: 1. An enumeration of the admitted facts; 2. The minutes of the pre-trial conference; 3. The legal and factual issue/s to be tried; 4. The he applicable law, rules, and jurisprudence; 5. The evidence marked 6. The specific trial dates for continuous trial, which shall be within the period provided for by the Rules 7. The case flowchart to be determined by the court, which shall contain the different stages of the proceedings up to the promulgation of the decision and the use of time frames for each stage in settings the trial dates 8. A statement that the one-day examination of witness rules and most important witness rule under the Guidelines for Pre-Trial (AM 3-1-9SC) shall be strictly followed; and 9. A statement that the court shall render judgment on the pleadings or summary judgment, as the case may be. (Rule 18, Sec. 7). Use of Judicial Affidavits The direct testimony of witnesses for the plaintiff shall be in the form of judicial affidavits. After the identification of such affidavits, cross-examination shall proceed immediately. (Rule 18, Sec. 7). Page 122 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Postponements of the Presentation of the Witnesses of the Parties The postponement of presentation of the parties’ witnesses is prohibited, except if it is based on: a. Acts of God; b. Force Majeure; or c. Duly substantiated physical inability of the witness to appear and testify. The party who causes the postponement is warned that the presentation of its evidence must still be terminated within the remaining dates previously agreed upon. (Rule 18, Sec. 7). Failure to Appear During Presentation of Witnesses Without Valid Cause Should the opposing party fail to appear during the scheduled dates of presentation of the parties’ witnesses without valid cause, the presentation of the scheduled witness will proceed with the absent party being deemed to have waived the right to interpose objection and conduct crossexamination. (Rule 18, Sec. 7) 7. DISTINCTION BETWEEN PRE-TRIAL IN A CIVIL CASE AND PRE-TRIAL IN A CRIMINAL CASE Commencement IN CIVIL CASES Pre-trial is set after the last responsive pleading has been served and filed. The branch clerk of court shall issue, within 5 calendar days from filing, a notice of pre-trial. As to purpose Among others, it considers the possibility of an amicable settlement. As to matters discussed Minutes of each pre-trial conference shall contain matters taken up therein, more particularly admissions of facts and exhibits and shall be signed by the parties and/or their counsel. (AM 3-19-SC) Shall set forth in detail: an enumeration of the admitted facts, the minutes of the pre-trial conference, legal and factual issue/s to be tried, applicable law, rules, and jurisprudence, evidence marked, specific trial dates for continuous trial, which shall be within the period provided for by the Rules, case flowchart to be determined by the court, which shall contain the different stages of the proceedings up to the promulgation of the decision and the use of time frames for each stage in settings the trial dates, a statement that the one-day examination of witness rules and most important As to Order Pre-Trial IN CRIMINAL CASES Pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquired jurisdiction over the person of the accused (either through voluntary surrender or arrest). NO MOTION to set the case for pretrial is required. Among others, it considers the possibility of a plea bargaining. Agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by BOTH the accused and counsel; otherwise, they cannot be used against the accused. Shall set forth the actions taken during the pre-trial conference, the facts stipulated, the admissions made, evidence marked, the number of witnesses to be presented and the schedule of trial. Page 123 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 As to appearance parties nonof As to requirement of pre-trial brief witness rule under AM 3-1-9-SC shall be strictly followed, and a statement that the court shall render judgment on the pleadings or summary judgment, as the case may be. Sanction of the court for plaintiff or his or her counsel is the action’s dismissal, with prejudice. As for defendant or his or her counsel, court may allow plaintiff to present his or her evidence ex-parte. It shall also result in the waiver of any objections to the faithfulness of the reproductions marked, or their genuineness and due execution. Specifically required (Sec. 6, Rule 18) Referral Of Some Cases For Court Annexed Mediation And Judicial Dispute Resolution After pre-trial and, after issues are joined, the court shall refer the parties for mandatory court-annexed mediation. (Rule 18, Sec. 8). The diversion of pending court cases both to Court-Annexed Mediation (CAM) and to Judicial Dispute Resolution (JDR) is plainly intended to put an end to pending litigation through a compromise agreement of the parties and thereby help solve the ever-pressing problem of court docket congestion. (A.M. No. 11-1-6-SCPHILJA). Three Stages of Diversion Court Diversion is a three-stage process First Stage: Court-Annexed Media (CAM), where the judge refers the parties to the Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators Second Stage: Judicial Dispute Resolution (JDR), the JDR judge sequentially becomes a mediatorconciliator-early neutral evaluator in a continuing effort to secure a settlement. Still failing that If the counsel for the accused or the prosecutor does not appear at the pretrial conference, and does not offer an acceptable excuse, the court may impose proper sanctions and penalties. Not specifically required.(RIANO, 2019, p. 477) The Rules do not require the filing of a pre-trial brief but only require attendance at a pre-trial conference to consider the matters stated in Sec. 1, Rule 118. (Sec. 2, Rule 118) second attempt, the mediator-judge must turn over the case to another judge (a new one by raffle or nearest/pair judge) who will try the unsettled case. Third Stage: During the appeal where covered cases are referred to the PMC-Appeals Court Mediation (ACM) unit for mediation Court-Annexed Mediation Section 8 under the Amended Rules: CAM is a mediation presided over by an accredited mediator. (A.M. No. 11-1-6-SC-PHILJA) When Conducted After the pretrial and, after issues are joined, the court shall refer the parties for mandatory CAM. The period for CAM shall not exceed thirty (30) calendar days, without further extension. Thus, under the amended rule, it is clear that pretrial proper shall first proceed. Thereafter, the case shall be referred to CAM and the proceedings in CAM cannot exceed 30 calendar days. (Rule 18, Sec. 8). Page 124 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW CAM Procedure (A.M. No. 11-1-6-SC-PHILJA) 1. Judge shall issue an order of mediation, requiring the parties to appear before the concerned PMC Unit Staff i. Order may include a warning that sanctions may be imposed for non-compliance 2. Individual parties are required to personally appear for mediation. 3. Corporation, partnership, or other juridical entities shall be represented by a ranking corporate officer fully authorized by a Board Resolution. 4. Parties shall proceed to select a mutually acceptable mediator, who shall then start with the mediation process i. Mediator – He shall be an officer of the court while performing his duties as such or in connection therewith 5. Initial Conference – Mediator shall explain to both parties the mediation process, stressing the benefits of an early settlement 6. Mediator may hold separate caucuses to determine real interests. 7. Mediator shall not record the proceedings of the joint conferences or separate caucuses. No transcript or minutes; no personal notes. Should such exist, it shall not be admissible as evidence. 8. If not settled – refer back to the judge. If Settlement is Reached in CAM (A.M. No. 111-6-SC-PHILJA) 1. Draft a compromise agreement which shall be submitted the court 2. Where compliance is forthwith made, the parties shall instead submit a satisfaction of claims or a mutual withdrawal, thereafter, the court shall order a dismissal Under the Consolidated and Revised Guidelines to Implement the Expanded Coverage of CourtAnnexed Mediation and Judicial Dispute Resolution, A.M. No. 11-1-6-SC-PHILJA, an extended period of another 30 days may be granted by the court, upon motion filed by the Mediator, with the conformity of the parties. It appears that this will no longer apply as the rule categorically states that the mediation shall not exceed 30 calendar days without further extension. Under the Consolidated and Revised Guidelines to Implement the Expanded Coverage of CourtAnnexed Mediation and Judicial Dispute Resolution, A.M. No. 11-1-6-SC-PHILJA, first level courts had a period of 30 days will second level courts had 60 days, to conduct JDR. A longer period could be granted upon the discretion of the JDR judge if there is high probability of settlement and upon joint written motion of the parties. Now, with the amendment, the period is shortened, and it is non-extendible. Failure to Appear in CAM Non-appearance in CAM is deemed as nonappearance at the pre-trial. (Rule 18, Sec. 3). Cases Subject to Mediation for CAM & JDR 1. All civil cases 2. Settlement of estates 3. Cases covered by the Summary Procedure, except: i. Traffic violations ii. Violation of municipal or city ordinances If Partial Settlement is Reached in CAM (A.M. No. 11-1-6-SC-PHILJA) 1. Parties shall submit the terms thereof with appropriate action of the court, without waiting for resolution of the unsettled part 2. With regard to the unsettled part, the court shall proceed to conduct JDR proceedings Judicial Dispute Resolution JDR is a mediation presided over by the judge. (A.M. No. 11-1-6-SC-PHILJA) When Conducted Only if the judge of the court to which the case was originally raffled is convinced that settlement is still possible, the case may be referred to another court for judicial dispute resolution. JDR shall be conducted within a non-extendible period of fifteen (15) calendar days from notice of failure of the court annexed mediation (Rule 18, Sec. 9). Page 125 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 4. REMEDIAL LAW Cases cognizable by the Lupong Tagapamayapa 5. Civil aspect of BP22 (bouncing checks) cases 6. Civil aspect of quasi-offenses 7. Civil aspect of estafa and libel 8. Civil aspect of theft 9. Civil aspect of less grave offenses punishable by correctional penalties not exceeding 6 years imprisonment, where the offended person is a private person 10. All civil cases and probate proceedings, testate or intestate, brought on appeal from the original jurisdiction of first level courts 11. All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction of first level courts 12. All cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction of first level courts 13. All habeas corpus cases decided by the first level courts in the absence of the RTC judge, that are brought on appeal. (A.M. No. 11-1-6-SC-PHILJA) impartial evaluation of the chances of each party’s success. 5. On the basis of the evaluation, the judge persuades the parties to a fair and mutually acceptable settlement. 6. Cases may be referred to JDR even during the trial stage upon written motion of one or both parties indicating willingness to discuss a possible compromise. (A.M. No. 11-1-6-SCPHILJA) Cases Not Subject to Mediation for CAM & JDR (A.M. No. 11-1-6-SC-PHILJA) 1. Civil Cases which by law cannot be compromised (Art. 2035, New Civil Code) 2. Other criminal cases 3. Habeas corpus petitions 4. All cases under RA 9262 (VAWC) 5. Cases with pending application for Restraining Orders/Preliminary Injunctions Failure to Appear in JDR Non-appearance in JDR is deemed as nonappearance at the pre-trial. (Rule 18, Sec. 3). JDR Procedure: (A.M. No. 11-1-6-SC-PHILJA) This part will be handled by the JDR judge (who is different from the trial judge). 1. JDR judge briefs the parties and counsels of the CAM and JDR processes. 2. All incidents and motions filed during the first stage shall be dealt with by the JDR judge. 3. As mediator and conciliator, the judge facilitates the settlement discussion between the parties and tries to reconcile their differences. 4. As a neutral evaluator, the judge assesses the relative strengths and weaknesses of each party’s case and makes a non-binding and If Settlement is reached in JDR (A.M. No. 11-16-SC-PHILJA) 1. Drafting of compromise agreement w/ the assistance of their lawyers 2. Prior to the signing, the JDR judge may opt to explain the contents of the agreement. 3. Signing of the compromise agreements and the filing of a joint motion to approve the compromise. 4. Judge renders a judgment based on compromise. 5. Copy of the judgment is sent to the Phil. Mediation Center for statistical purposes. Failure to Reach Settlement in JDR If there is no full or partial settlement reached in the JDR, the judge presiding in the JDR shall turn over the case to the trial judge, determined by reraffle in multiple sala courts or to the originating court in single sala courts, as the case may be, to conduct pre-trial proper (XII, A.M. No. 11-1-6-SCPHILJA) Note that judicial affidavit shall be submitted 5 days prior the pre-trial. If JDR fails, trial before the original court shall proceed on the dates agreed upon. (Rule 18, Sec. 9) Page 126 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW Judgment After Pre-Trial Nature AM NO. 0110-5-SCPHILJA Mandatory – after CAM, parties are immediately referred to JDR for settlement Confidential Judge of court where case was originally raffled Conducted by Period Successful JDR Failed JDR JDR judge acts as mediatorconciliator – early neutral evaluator First level courts – 30 days Second level courts – 60 days Parties submit a compromise agreement to the court, for approval. Court to issue judgment based on compromise agreement If JDR fails, JDR is terminated and case is reraffled to another court to proceed with pre-trial 2019 AMENDMENT S Discretionary – after CAM, parties are referred to JDR if judge is convinced that settlement is possible Confidential Judge of another court within the same jurisdiction JDR judge acts as mediatorconciliator – early neutral evaluator Nonextendible period of 15 calendar days counted from notice of failure of CAM Parties submit a compromise agreement to the court, for approval. Court to issue judgment based on compromise agreement JDR is terminated and case is referred back to court of origin to proceed to trial The court shall motu proprio include in the pre-trial order that the case be submitted for summary judgment or judgment on the pleadings, without need of position papers or memoranda, should there/it be: 1. No more controverted facts; 2. No more genuine issue as to any material fact; 3. Absence of an issue; or 4. That the answer fails to tender an issue. This is without prejudice to a party moving for judgment on the pleadings or summary judgment. In such cases, judgment shall be rendered within ninety (90) calendar days from termination of the pre-trial. The order of the court to submit the case for judgment pursuant to this Rule shall not be the subject to appeal or certiorari. (Rule 18, Sec. 10) K. INTERVENTION Nature of Intervention Intervention is a remedy by which a third party, who is not originally impleaded in a proceeding, becomes a litigant for purposes of protecting his or her right or interest that may be affected by the proceedings. (Neptune Metal Scrap Recycling, Inc. v. Manila Electric Co., G.R. No. 204222, July 4, 2016). Its main purpose is to settle in one action and by a single judgment all conflicting claims of, or the whole controversy among, the persons involved. (Office of the Ombudsman vs. Maximo Sison, G.R. 185954, Feb. 16, 2010) A complaint-in-intervention can’t be treated as an independent action as it is merely ancillary to and a supplement upon the principal action. The complaint-in-intervention essentially latches on the complaint for its legal efficacy so much so that the dismissal of the complaint leads to its concomitant dismissal. (Sta. Rita Co v. Angeline Gueco, G.R. 193087, 2013), Page 127 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 Although as a rule, when the main action ceased to exist, there is no pending proceeding whereon the intervention may be based. In the case at bar, however, there was no such final or complete dismissal but rather an approval of a compromise agreement which was embodied in what was specifically designated as a 'Partial Decision' affecting only the interests of herein petitioner and the defendant in said case but not those of her coplaintiff municipality and the intervenor. (Camacho v. CA, G.R. No. 79564, Nov. 24, 1989). Who May Intervene The following persons may intervene: 1. Those having a legal interest in the matter in litigation; 2. Those having legal interest in the success of either of the parties; 3. Those having an interest against both parties; or 4. A party that is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. (Sec. 1, Rule 19). Legal Interest The interest contemplated by law must be actual, substantial, material, direct and immediate, and not simply contingent or expectant. It must be of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. (Asia's Emerging Dragon Corp. v. Department of Transportation and Communications, G.R. Nos. 169914 & 174166, Mar. 24, 2008) A law firm whose services were unjustly terminated was allowed to intervene in the case despite the compromise agreement between the parties. (Czarina Malvar v. Kraft Foods, G.R. 183952, 2013) Motion to Intervene Improper When Case is Already Moot Motion to intervene is improper when the case is already moot. A case is moot when a supervening event has terminated the legal issue between the parties, such that this Court is left with nothing to REMEDIAL LAW resolve. There is no longer anything that would aﬀect the petitioner's alleged right. Thus, as far as its intervention is concerned, it no longer has any standing. (Express Telecommunications Co., Inc. v. AZ Communications, Inc. Clemente v. Status Maritime Corp, G.R. No. 196902, 2020) Subject to Discretion of the Court The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding. (Sec. 1, Rule 19). The trial court must not only determine if the requisite legal interest is present, but also take into consideration the delay and the consequent prejudice to the original parties that the intervention will cause. Both requirements must concur, as the first requirement on legal interest is not more important than the second requirement that no delay and prejudice should result. To help ensure that delay does not result from the granting of a motion to intervene, the Rules also explicitly say that intervention may be allowed only before rendition of judgment by the trial court. (Lorenza C. Ongco vs Valeriana Ungco Dalisay, G.R. No. 190810, Jul. 18, 2012). Pleadings-in-intervention If the purpose of the motion for intervention is to assert a claim against either or all of the original parties, the pleading shall be called a COMPLAINT-IN-INTERVENTION. Meanwhile, if the purpose is to unite with the defending party in resisting a claim against the latter, the pleading is called an ANSWER-IN-INTERVENTION. (Rule 19, Sec. 3) Procedure for Intervention 1. The motion for intervention must be filed before judgment (Sec. 2, Rule 19); 2. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (Sec. 2, Rule 19). 3. The answer to the complaint-in-intervention shall be filed within 15 calendar days from the notice of the order admitting the complaint-inPage 128 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 intervention, unless otherwise fixed by the court. (Sec. 4, Rule 19). 1. REQUISITES FOR INTERVENTION Requisites for Intervention The intervention shall be allowed when: 1. A person has legal interest: a. In the matter in litigation; b. In the success of any of the parties; c. An interest against the parties; or d. He is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or an officer thereof. (Rule 19, Sec. 1, Mactan-Cebu International Airport Authority v. Heirs of Miñoza, G.R. No. 186045, Feb. 2, 2011) 2. The intervention will not unduly delay or prejudice the adjudication of the rights of the original parties; and 3. The intervenor’s rights may not be fully protected in a separate proceeding. (Asia's Emerging Dragon Corp. v. Department of Transportation and Communications, G.R. Nos. 169914 Mar. 24, 2008). 2. TIME TO INTERVENE General Rule: The motion to intervene may be fied at any time before rendition of judgment by the trial court. (Sec. 2, Rule 19). Exceptions: 1. With respect to indispensable parties, intervention may be allowed even on appeal. 2. When the intervenor is the Republic. 3. Where intervention is necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenor’s right to appeal. (FERIA, 2013, p. 572). 3. REMEDY OF DENIAL OF MOTION TO INTERVENE Intervention results in an interlocutory order ancillary to a principal action. Its grant or denial is subject to the sound discretion of the court. Interlocutory orders, or orders that do not make a final disposition of the merits of the main REMEDIAL LAW controversy or cause of action, are generally not reviewable. The only exception is a limited one, in that when there is no plain, speedy, and adequate remedy, and where it can be shown that the court acted without, in excess, or with such grave abuse of discretion that such action ousts it of jurisdiction. Thus, certiorari may lie. (E.I. Dupont De Nemours and Co. v. Francisco, G.R. No. 174379, Aug. 31, 2016). L. SUBPOENA 1. SUBPOENA DUCES TECUM It is a process directed to a person requiring him to bring with him or her books, documents, or other things under his or her control at a scheduled hearing (Sec. 1, Rule 21). Tests for a Valid Subpoena Duces Tecum In determining whether the production of the documents described in a subpoena duces tecum should be enforced by the court, it is proper to consider: 1. Whether the subpoena calls for the production of specific documents, or rather for specific proof (test of definiteness); and 2. Whether that proof is prima facie sufficiently relevant to justify enforcing its production (test of relevancy). (FERIA, 2013, p. 578 citing Liebenow v. Philippine Vegetable Oil Co., G.R. No. 13463, Nov. 9, 1918). 2. SUBPOENA AD TESTIFICANDUM A process directed to a person, requiring him or her to attend and to testify at a hearing or trial of an action, or at any investigation conducted by a competent authority, or for the taking of his or her deposition (Sec. 1, Rule 21). The subpoena duces tecum is like the ordinary subpoena ad testificandum with the exception that it concludes with an injunction that the witness shall bring with him and produce at the examination the books, documents, or things described in a subpoena. (Roco v Contreras, G.R. 158275, Jun. 28, 2005). Page 129 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 Absent any proceedings, suit, or action commenced or pending before a court, a subpoena may not issue (Collado v. Bravo, A.M. P-99-1307, Apr. 10, 2001). Personal Appearance in Court A person present in court before a judicial officer may be required to testify as if he or she were in attendance upon a subpoena issued by such court or officer. (Sec. 7, Rule 21). 3. SERVICE OF SUBPOENA Who May Issue a Subpoena A subpoena may be issued by: 1. The court before whom the witness is required to attend; 2. The court of the place where the deposition is to be taken; 3. The officer or body authorized by law to issue a subpoena in connection with investigations conducted by said officer of body; or 4. Any justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. (Sec. 2, Rule 21). Service of Subpoena to Prisoners Before a subpoena is issued to compel a prisoner to testify, the judge or officer shall examine and study carefully the application if it is for a valid purpose. (Id.). If the prisoner is sentenced to death, reclusion perpetua or life imprisonment and is confined in any penal institution, he shall not be brought outside the penal institution for appearance or attendance in any court unless authorized by the Supreme Court. (Id.). Subpoena for Depositions Proof of service of a notice to take a deposition, as provided in Sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. REMEDIAL LAW The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court. (Sec. 5, Rule 21). Form and Contents of a Subpoena A subpoena: 1. Shall state the name of the court and the title of the action or investigation; 2. Shall be directed to the person whose attendance is required; and 3. In a subpoena duces tecum, it shall contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. (Sec. 3, Rule 21). How Subpoena is Served Service of subpoena shall be made: 1. In the same manner as personal or substituted service of summons; 2. The original must be exhibited, and a copy delivered to the person on whom it is served; 3. Service must be made as to allow the witness a reasonable time for preparation and travel to the place of attendance; and 4. Costs for court attendance and production of documents and other materials subject of the subpoena shall be tendered or charged accordingly. (Sec. 6, Rule 21). The failure of a server to pursue substituted service after a frustrated attempt to personally serve the complainant a copy of the subpoena constitutes simple neglect of duty. (Macaspec v. Flores, A.M. No. P-05-2072, Aug. 13, 2008). 4. COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT Warrant of Arrest to Compel Witness to Appear The court which issued the subpoena may issue a warrant to the sheriff to arrest the witness and bring him before the court or officer upon proof of: 1. Service of the subpoena to the witness; and 2. Failure of the witness to attend. (Sec. 8, Rule 21). Page 130 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 The cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that: 1. The witness’s failure to answer the subpoena was willful; and 2. He has no just excuse for such failure. (Id.). Note that the above is only applicable for a subpoena ad testificandum and not subpoena duces tecum. (Id.). A judge may issue a warrant of arrest against a witness simply upon proof that the subpoena had been served upon him but he failed to attend the hearing. The purpose is to bring the witness before the court where his attendance is required, not to punish him for contempt which requires a previous hearing. (Pagdilao, Jr. v. Angeles, A.M. No. RTJ99-1467, Aug. 5, 1999). Punishment for Failure to Obey Subpoena If a subpoena issued by a court and duly served is disobeyed without adequate cause, his or her failure to obey shall be deemed contempt of court. (Sec. 9, Rule 21). If a subpoena is not issued by the court, the disobedience thereto shall be punished in accordance with the applicable law or Rule. (Id.). Note that this applies to both types of subpoenas (Id.). Only a judicial officer and quasi-judicial officer specifically authorized by law can exercise the power of contempt in relation to subpoena. (Nazareno v. Barnes, G.R. No. 59072, Apr. 25, 1984). Exceptions from Arrest or Punishment for Disobedience: The arrest, contempt, or any other punishment by any law or Rule shall not apply when: 1. Witness resides more than 100 km away from the place where he is to testify. This applies only to civil and not to criminal cases (Genorga v Quitain, AM No CFI -891, Jul. 21, 1977; Rule 119, Sec. 14; & Rule 115, sec. 1 par. (g)). REMEDIAL LAW 2. Witness is a detention prisoner and there was no permission obtained from the court in which the case is pending (Sec. 10, Rule 21). 5. QUASHING A SUBPOENA Quashing a Subpoena Duces Tecum To quash a subpoena duces tecum, the following must be met: 1. A proper motion must be filed with the court; 2. The motion must be promptly made before or at the time specified in the subpoena; and 3. The quashal must be based on the following grounds: a. The subpoena is unreasonable and oppressive; b. The relevancy of the books, documents, or things sought to be produced does not appear; c. The person in whose behalf the subpoena was issued failed to advance the reasonable cost of the production; or d. The person in whose behalf the subpoena was issued failed to tender witness fees and kilometrage. (Sec. 4, Rule 21). Only a subpoena duces tecum may be quashed on the ground that it is oppressive or unreasonable because it has a tendency to infringe on the right to privacy. (Lee v. CA, G.R. No. 177861, Jul. 13, 2010). Quashing a Subpoena Ad Testificandum To quash a subpoena ad testificandum, the following must be met: 1. A proper motion must be filed with the court; 2. The motion must be promptly made before or at the time specified in the subpoena; and 3. The quashal must be based on the following grounds: a. The witness is not bound thereby; or b. The person in whose behalf the subpoena was issued failed to tender witness fees and kilometrage. (Sec. 4, Rule 21). Page 131 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 Summary of Grounds for Quashal of Subpoena SUBPOENA DUCES SUBPOENA AD TECUM TESTIFICANDUM It is unreasonable and The witness is not oppressive bound by such Relevancy of the subpoena books, documents or things does not appear When the witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served M. COMPUTATION OF TIME How to Compute Time In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the following rules shall be followed: 1. The day of the act or event from which the designated period of time begins to run is to be excluded; 2. The date of performance included; and 3. The last day of the period shall not run until the next working day if it falls on: a. Saturday; b. Sunday; or c. A legal holiday (Sec. 1, Rule 22). Section 1, Rule 22 provides that when the last day on which a pleading is due falls on a Saturday, Sunday, or legal holiday, time shall not run until the next working day. This rule speaks only of "the last day of the period," so that when a party seeks an extension and the same is granted, the due date ceases to be the last day and hence, the provision no longer applies. Any extension of time to file the required pleading should therefore be counted from the expiration of the original period regardless of the fact that said due date is a Saturday, Sunday or legal holiday. (Reinier Pacific International Shipping, Inc. v. Guevarra, G.R. No. 157020, Jun. 19, 2013). REMEDIAL LAW Effect of Interruption If an act was done which interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. (Sec. 2, Rule 22). The day of the act that caused the interruption shall be excluded in the computation of the period. (Id.). N. MODES OF DISCOVERY Purpose of Rules of Discovery The broad purpose of discovery procedures is to permit mutual knowledge before trial of all relevant facts gathered by both parties so that either party may compel the other to disgorge facts whatever he has in his possession. In the practical sense, the modes of discovery are designed to serve as an additional device for settlement aside from a pre-trial. (RIANO, 2019, p.479). Modes of Discovery Under the Rules of Court The following are the modes of discovery under the Rules of Court: 1. Depositions pending action (Rule 23); 2. Depositions before action or pending appeal (Rule 24); 3. Interrogatories to parties (Rule 25); 4. Admission by adverse party (Rule 26); 5. Production or inspection of documents or things (Rule 27); 6. Physical and mental examination of persons (Rule 28); Discovery Still Applies Even if Motion For Bill of Particulars Was Denied That the matters on which discovery is desired are the same matters subject of a prior motion for bill of particulars and denied for lack of merit is beside the point. A bill of particulars may elicit only ultimate facts, not evidentiary facts. The latter are without doubt a proper subject of discovery. (Republic v. Sandiganbayan, G.R. No. 90478, 1991). Page 132 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 Order Requiring the Availment of Modes of Discovery Trial courts are directed to issue orders requiring parties to avail of interrogatories to parties under Rule 25 and request for admission of adverse party under Rule 26 or other measures under Rules 27 and 28 within five days from filing of the answer. The parties are likewise required to submit, at least 3 days before the pre-trial, pre-trial brief, containing among others a manifestation of the parties having of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners. (A.M. No. 03-01-09-SC). 1. DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE ACTION OR PENDING APPEAL a. Meaning Of Deposition Deposition A deposition is the testimony of a witness taken upon oral question or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution. (People vs. Webb, G.R. No. 176389, 1999). It is a testimony of a witness, taken in writing, under oath or affirmation, before some judicial officer in answer to questions or interrogatories. (People v. Webb, G.R. No. 132577, 1999). It is a way for either party to compel the other to disgorge whatever facts he has in his possession. (Republic v. Sandiganbayan, G.R. No. 90478, 1991). From Whom And When Depositions Taken For depositions pending action or appeal, the testimony of any person, whether a party or not, may be taken by deposition upon ex parte motion of a party. For persons confined in prison, their REMEDIAL LAW depositions may be taken only by leave and under such terms of the court. (Sec. 1, Rule 23). Note: the 2019 Amendments deleted the phrase “By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served…” Thus, the requirement of leave of court is now replaced with an ex parte motion. For depositions before action, the testimonies of the following may be taken by deposition: a. Any person who wants to perpetuate his/her own testimony; or b. Any person who wants to perpetuate the testimony of another person. Such person may perpetuate his/her testimony or that of another by filing a verified petition in the court of the place of the residence of any expected adverse party. (Sec. 1, Rule 24) A non-resident foreign corporation may request for depositions, whether oral or written. (San Luis v. Rojas, G.R. No. 159127, 2008). Before Whom Taken No deposition shall be taken before: a. A person who is a relative within the sixth degree of consanguinity or affinity of any of the parties; b. An employee or counsel of any of the parties; c. An employee or relative of such counsel within the same degree in no. 1; and d. A person financially interested in the action. (Sec. 13, Rule 23). Within the Philippines, depositions may be taken before: a. Any judge; b. A notary public; or c. If the parties so stipulate in writing, before any person authorized to administer oaths. (Rule 23, Secs. 10 and 14). Page 133 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW Outside the Philippines, depositions may be taken before: a. A secretary of an embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; b. Such person or officer as may be appointed by commission or letters rogatory; or c. If the parties so stipulate in writing, before any person authorized to administer oaths. (Rule 23, Secs. 10 and 14). That neither the presiding judge nor the parties will be able to personally examine and observe the conduct of a deponent does not justify denial of the right to take deposition. This objection is common to all depositions. Allowing this reason will render nugatory the provisions in the Rules of Court that allow the taking of depositions. The parties may also well agree to take deposition by written interrogatories to afford petitioners the opportunity to cross-examine. (Santamaria v. Cleary, G.R. Nos. 197122 &197161, June 15, 2016). A commission or letters rogatory shall be issued only: 1. When necessary or convenient; 2. On application or notice; and 3. On such terms as may be just and appropriate. (Rule 23, Sec. 12). LETTERS ROGATORY An instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a case before the former, a witness who is within the jurisdiction of the judge where the letters are addressed. COMMISSION An instrument issued by a court of justice or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal (Dasmarinas Garments, Inc. vs. Reyes, G.R. No. 108229, 1993). LETTERS ROGATORY Methods of procedure are under the control of the foreign tribunal. COMMISSION Taken in accordance with the rules laid down by the court issuing the commission. (Dulay v. Dulay, G.R. No. 158857, 2005). Effect of Taking and Using Deposition General Rule: A party shall not be deemed to make a person his/her own witness for any purpose by taking his/her deposition (Rule 23, Sec. 7). Exception: When the deposition is introduced in evidence, then he/she will be deemed to have made the deponent his/her witness. (Rule 23, Sec. 8) Exception to the exception: The exception will not apply if the deposition used is that of an opposing party or the deposition is used to impeach or contradict the deponent i.e., the deponent is still not a witness of the party taking the deposition. While depositions may be used as evidence in court proceedings, they are generally not meant to be a substitute for the actual testimony in open court of a party or witness. A deposition is not to be used when the deponent is at hand. (Sales v. Sabino, G.R. No. 133154, 2005). Oral Depositions A party desiring to take the deposition of any person upon oral examination shall: 1. Give reasonable notice in writing to every other party to the action; 2. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known; 3. And if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time (Rule 23, Sec. 15). Page 134 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 Process of Deposition 1. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by anyone authorized in his presence, record the testimony of the witness. (Rule 23, Sec.17); 2. The testimony shall be taken stenographically. (Rule 23, Sec. 17); 3. All objections made at the time of the examination to the qualifications of the officer or on any matters regarding the proceedings shall be merely NOTED by the officer upon the deposition. (Rule 23, Sec. 17); 4. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless waived and the witness will then sign the deposition. (Rule 23, Sec. 19); 5. If the deposition is not signed by the witness, the officer shall sign it and state on record the reason of non-signing. (Rule 23, Sec. 19); 6. The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope with the title of the action and marked as a deposition and shall promptly file it to the court and shall promptly file if with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. (Rule 23, Sec. 20); and 7. The officer taking the deposition shall give prompt notice of its filing to all the parties. (Rule 23, Sec. 21) When the deposition was taken inside the courtroom by the clerk of court in the presence of the parties and their lawyers, and the entire proceedings was transcribed by the stenographers of the court, the requirements that the deposition has to be sealed, examined and signed by the deponent, and also certified, sealed and signed by the deposition officer would be, to the mind of the court, already superfluous. (Ayala Land Inc. v. Tagle, G.R. No. 153667 Aug. 11, 2005). In order for petitioners to exercise the right to refuse to take the witness stand and to give their REMEDIAL LAW depositions, the case must partake of the nature of a criminal proceeding. The fact that there are two criminal cases pending which are allegedly based on the same set of facts as that of this civil case will not give them the right to refuse to take the witness stand and to give their depositions. Hence, like an ordinary witness, they can invoke the right against self-incrimination only when the incriminating question is actually asked of them. (Rosete v. Lim G.R. No. 136051, Jun. 8, 2006). Depositions By Written Interrogatories A deposition need not be conducted through oral examination. It may be conducted through written interrogatories. (Rule 23, Sec. 1). A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating: 1. The name and address of the person who is to answer them; 2. The name or descriptive title and address of the officer before whom the deposition is to be taken. (Rule 23, Sec 25). A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, to take the testimony of the witness in response to the interrogatories. (Rule 23, Sec. 26). It shall also be the duty of the officer designated to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him or her. (Rule 23, Sec. 26). When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. (Rule 23, Sec. 27). Within ten (10) calendar days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) calendar days thereafter the latter may serve Page 135 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 redirect interrogatories upon a party who has served cross-interrogatories. (Rule 23, Sec. 25). Within three (3) calendar days after being served with redirect interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (Rule 23, Sec. 25). Orders for Protection of Parties and Deponents After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make the following orders: a. That the deposition shall not be taken; b. That the deposition may be taken only at some designated place other than that stated in the notice; c. That the deposition may be taken only on written interrogatories; d. That certain matters shall not be inquired into; e. That the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel; f. That after being sealed the deposition shall be opened only by order of the court; g. That secret processes, developments, or research need not be disclosed; or h. That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (Rule 23, Sec 16) NOTE: This is the remedy BEFORE taking the deposition At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that: a. The examination is being conducted in bad faith; or b. In such manner as unreasonably to annoy, embarrass, or oppress the deponent or party. REMEDIAL LAW The court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to: a. Cease forthwith from taking the deposition; or b. May limit the scope and manner of the taking of the deposition, as provided in Section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. (Rule 23, Sec 18). NOTE: This is the remedy DURING the taking of deposition) After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in Sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination. (Rule, 23, Sec 28) NOTE: This is the remedy for BEFORE the taking of DEPOSITION THROUGH WRITTEN INTERROGATORIES A plain reading of this provision shows that there are two (2) requisites before a court may issue a protective order: 1. There must be notice; and 2. The order must be for good cause shown. (Santamaria v. Cleary, G.R. Nos. 197122 &197161, Jun. 15, 2016). Page 136 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 Depositions in Civil vs. Criminal Proceedings 1. The procedure under Rule 23 to 28 of the Rules of Court allows the taking of depositions in civil cases, either upon oral examination or written interrogatories, before any judge, notary public or person authorized to administer oaths at any time or place within the Philippines; or before any Philippine consular official, commissioned officer or person authorized to administer oaths in a foreign state or country, with no additional requirement except reasonable notice in writing to the other party. 2. For purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who would foreseeably be unavailable for trial, the testimonial examination should be made before the court, or at least before the judge, where the case is pending as required by the clear mandate of Section 15, Rule 119 of the Revised Rules of Criminal Procedure. (Go v. People, G.R. No. 185527, 2012). Suppletory Application of Rule on Depositions in Criminal Cases In one case, the prosecution’s witness (Mary Jane) is neither too sick nor infirm to appear at the trial nor has to leave the Philippines indefinitely. To recall, Mary Jane is currently imprisoned in Indonesia for having been convicted by final judgment of the crime of drug trafficking, a grave offense in the said state. Her situation is not akin to a person whose limitation of mobility is by reason of ill-health or feeble age, the grounds cited in Section 15 of Rule 119. Thus, Go v. People (aforecited case) is not on all fours with this case. Depositions, however, are recognized under Rule 23 of the Rules on Civil Procedure. Although the rule on deposition by written interrogatories is inscribed under the said Rule, the Court holds that it may be applied suppletorily in criminal proceedings so long as there is compelling reason. Verily, in light of the unusual circumstances surrounding the instant case, the Court sees no reason not to apply the provisions of Rule 23 of the Rules on Civil Procedure in the interest of substantial justice and fairness. Hence, the taking of testimony of Mary Jane through a deposition by REMEDIAL LAW written interrogatories is in order. (People v. Sergio, G.R. No. 240053, October 9, 2019). b. Uses And Scope Of Examination Use of Depositions The deposition may be used for the following purposes: 1. For the purpose of contradicting or impeaching the testimony of the deponent as witness by any party; 2. If the deponent is a party or anyone who was at the time of the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which is a party, his/her deposition can be used by an adverse party for any purpose. 3. If the deponent is a witness, whether or not a party to the case, his/her deposition may be used by any party for any purpose if the court finds that: a. The witness is dead; or b. The witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines (UNLESS it appears that his/her absence was procured by the party offering the deposition); or c. The witness is unable to attend or testify because of age, sickness, infirmity or imprisonment; or d. The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or e. Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice to allow the deposition to be used. If only part of a deposition is offered in evidence by a party, the adverse party may require him or her to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (Rule 23, Sec. 4). Page 137 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW For perpetuation of testimonies before action (depositions before action), it may be used in any action subsequently brought involving the same subject matter, provided: a. It is taken in accordance with the provisions of Rule 25; or b. If not so taken, it remains admissible in evidence. (Rule 24, Sec. 6). Objections and Rebuttal of Depositions At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or her or by any other party. (Rule 23, Sec. 9). Any reason that would require the exclusion of the evidence if the witness were then present and testifying may be used as a reason for objection. (Rule 23, Sec. 6). Effect of Substitutions of Parties The substitution of parties does not affect the right to use depositions previously taken. (Rule 23, Sec. 5). All objections made at the time of the examination to the qualifications of the officer taking the deposition, manner of taking it, to evidence presented, conduct of any party and any other objection to the proceedings shall be NOTED by the officer taking the deposition. (Rule 23, Sec. 17). The provision does not provide that the officer has to rule on the objection. (RIANO, p. 486). When an action is dismissed and another is subsequently brought, all depositions taken in the former action may be used in the latter action, as if originally taken, provided: 1. The latter action involves the same parties, their representatives, or their successors in interest; and 2. The latter action involves the same subject as that of the former action. (Rule 23, Sec. 5). Against Whom Depositions May Be Used Any part or all of the deposition, so far as admissible under the rules of evidence, may be used: 1. Against any party who was present or represented at the taking of the deposition; or 2. Against one who had due notice of the deposition. (Rule 23, Sec. 4). Scope of Examination The deponent may be examined regarding any matter which is not privileged and which is relevant to the subject of the pending action, which may include: i. Claim or defense of any other party; ii. Existence, description, nature, custody, condition and location of any books, documents, or other tangible things; and iii. Identity and location of persons having knowledge of relevant facts. c. When May Objections To Admissibility Be Made However, for the following errors or irregularities in the depositions, objections must be made under the following circumstance: a. Errors and irregularities in the notice for taking of the deposition are waived unless written objection is served; b. The disqualification of the officer before whom it is taken is deemed waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence; c. Objections to the competency, relevance, or materiality of the witness and/or testimony are not waived when not raised during the taking of the deposition unless such ground have been obviated or removed if presented at that time; d. Same rules as above applies to oral examinations; e. Errors in the manner in which the deposition is prepared is waived unless a motion to suppress deposition is made. (Rule 23, Sec. 29). If the ground of the objection is one which might have been obviated or removed if presented at that time, it should be made during the taking of the deposition, as otherwise, it will be waived (Gana vs. Roman Catholic Archbishop of Manila, 43 O.G. 3224). Page 138 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 d. When The Taking Of Deposition May Be Terminated Or Its Scope Limited When and How Made The taking of deposition may be terminated or its scope limited at any time during the taking of the deposition, provided: 1. It is made upon motion or petition of any party or of the deponent; and 2. Upon showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. (Rule 23, Sec. 18). Who May Order Limitation or Termination The order may be made by: a. The court in which the action is pending; or b. The RTC of the place where the deposition is being taken. (Rule 23, Sec. 18) Scope of the Order The court may order the officer conducting the examination: a. To cease forthwith from the taking of the deposition; b. To limit the scope and manner of the taking of the deposition. If the order terminates the action, it shall be resumed thereafter only upon the order of the court in which the action is pending. (Rule 23, Sec. 18) Deposition In Perpetuam Rei Memoriam Deposition for use in future proceedings as in the case where it is sought before the existence of an action or for cases on appeal. (Rule 24). It was intended to preserve known testimony against danger of loss. For instance, the petitioner has a cause of action which has not yet accrued. In such case, inasmuch as he cannot bring the action until the cause of action accrues, he may perpetuate his testimony or that of another person. (Rule 24, Sec. 1) REMEDIAL LAW Contents of the Petition 1. That the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; 2. The subject matter of the expected action and his interest therein; 3. The facts which he desires to perpetuate; 4. The names or a description of his expected adverse parties; and 5. The names and addresses of the persons to be examined and the substance of the testimony. (Rule 24, Sec. 2). Where Petition is Filed A person desiring to perpetuate his or her testimony or that of another may file a verified petition in the court of the place of the residence of any expected adverse party. (Rule 24, Sec. 1). Notice The petitioner shall serve notice upon each person named in the petition as an expect adverse party. (Rule 24, Sec. 3). Order and Examination If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. (Rule, 24, Sec. 4). Use of Deposition It is admissible in evidence, it may be used in any action involving the same subject matter subsequently brought. (Rule 24, Sec. 6). 2. WRITTEN INTERROGATORIES TO ADVERSE PARTIES Purpose of Written Interrogatories Upon ex parte motion, any party desiring to elicit material and relevant facts from any adverse party shall file and serve, upon the latter, written interrogatories. (Rule 25, Sec. 1). Page 139 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 But no party may serve more than one set of interrogatories to be answered by the same party without leave of court. (Rule 25, Sec. 4). Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (Sps. Afulugencia v. Metrobank, G.R. No. 185145, February 5, 2014) Since the calling party is deemed bound by the adverse party’s testimony, compelling the adverse party to take the witness stand may result in the calling party damaging its own case. Another reason for the rule is that by requiring prior written interrogatories, the court may limit the inquiry to what is relevant, and thus prevent the calling party from straying or harassing the adverse party when it takes the latter to the stand. (Id.). Use and Scope of Written Interrogatories The use and scope of written interrogatories are the same with that of depositions. (Rule 25, Sec. 5, see Rule 23, Secs. 2 and 4). Answer to Interrogatories The written interrogatories shall be answered by: a. The party served; or b. If the party served is a corporation, partnership, or association which is a party, any officer thereof competent to testify. (Rule 25, Sec. 1). The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. Such answer shall be filed and served to the party submitting the interrogatory within fifteen (15) days from service of such interrogatories unless the court on motion and for good cause extends or shortens the time. (Rule 25, Sec. 2). Considering that the case is in the crossexamination stage already, the use of written interrogatories will not serve its purpose anymore. It cannot aid in the preparation and speedy disposition of the pending case. Instead, it will only cause further delay in the proceedings. (BDO REMEDIAL LAW Strategic Holdings, Inc. v. Asia Amalgamated Holdings Corp., G.R. No. 217360, Nov. 13, 2019). Objections to Interrogatories Objections to the interrogatory may be presented to the court within ten (10) calendar days after service thereof. Difference Between Interrogatories to Parties and Bill of Particulars INTERROGATOBILL OF RIES TO PARTIES PARTICULARS Directed to Adverse Party. an Seeks the disclosure of all material and relevant facts from a party. Directed Pleading. to a Designed to seek for a more definite statement or for particulars of any matter not averred with sufficient definiteness in a pleading. Difference Between Interrogatories to Parties and Written Interrogatories in a Deposition INTERROGATORIES TO PARTIES WRITTEN INTERROGATORIES IN A DEPOSITION Purpose is to elicit Purpose is the same facts from any adverse as other types of party. The answers depositions. may constitute judicial admissions. Directed to Adverse Party. an Directed to any person, including the adverse party. Written interrogatories Written interrogatories are served to the are served to the adverse party. officer who shall take the deposition. Page 140 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 Interrogatories are Officer shall take the answered fully in oral responses of the writing. deponent to the written interrogatories. The service of written interrogatories is a mode of deposition separate and distinct from interrogatories to parties. (RIANO 2019, p.492). a. Consequences Of Refusal To Answer The following are the consequences of refusal to answer written interrogatories: i. If a party refuses to answer any question any interrogatory, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. (Rule 29, Sec. 1). ii. The proponent of the question may apply for an order to the court where the deposition is being taken to compel the adverse party to answer. If granted, the refusing party will be required to answer; he may also be required to pay the proponent reasonable fees for filing the order, including attorney’s fees. (Rule 29, Sec. 1). iii. If after being ordered by the court, the party or witness still refuses to answer, the refusal may be considered a contempt of that court. (Rule 29, Sec. 2). iv. The court may likewise make such orders, upon motion and notice, in regard to the refusal of the party or witness to answer the interrogatories despite proper service thereof: a. That the matters regarding which the questions were asked shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. (Rule 29, Sec. 3(a)); b. That the disobedient party be refused to be allowed to support or oppose the designated claims or defenses or prohibiting him or her from introducing in evidence designated documents or things or items of testimony. (Rule 29, Sec. 3(b)); c. That any part of of any pleading of the disobedient party be stricken out. (Rule 29, Secs. 3(c) and 5); REMEDIAL LAW d. That the action or proceeding or any part thereof be stayed until the order is obeyed. (Rule 29, Secs. 3(c) and 5); e. That the action or proceeding or any part thereof be dismissed. (Rule 29, Secs. 3(c) and 5); f. That a judgment shall be rendered by default against the disobedient party. (Rule 29, Secs. 3(c) and 5); g. That, in addition to the above, the disobedient party may be required to pay the proponent reasonable fees for filing the order, including attorney’s fees. (Rule 29, Sec. 5); and h. That the disobedient party or agent of such party be arrested. (Rule 29, Sec. 3(d)); However, where a party refuses only to answer a PARTICULAR question, Section 3 [c], Rule 29 shall apply (the only difference being that in Section 3[c], there is no provision on payment of reasonable expenses/ penalty). b. Effect Of Failure To Serve Written Interrogatories General Rule: A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. Exception: When allowed by the court for good cause and to prevent a failure of justice. (Rule 25, Sec. 6). 3. REQUEST FOR ADMISSION Purpose of Admission The purpose of this mode of discovery is to allow one party to request the adverse party, in writing, to admit certain material and relevant matters which, most likely, will not be disputed in trial. (RIANO 2019, p.493). A party should not be compelled to admit matters of fact already admitted by his pleading and concerning which there is no issue, nor should he be required to make a second denial of those already denied in his answer to the complaint. [xxx] A request for admission is not intended to Page 141 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 merely reproduce or reiterate the allegations of the requesting party's pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request, whose purpose is to establish said party's cause of action or defense. Unless it serves that purpose, it is, as correctly observed by the Court of Appeals, "pointless, useless," and "a mere redundancy.” (Po v. CA, G.R. No. L-34341, 1988) How Request for Admission Made At any time after the issues have been joined, a party may file and serve upon another party a: a. Request for the admission of the genuineness of any material and relevant document described in and exhibited with the request; or b. Request for the admission of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless the same have already been furnished. (Rule 26, Sec. 1) The court may allow the party making an admission, whether express or implied, to withdraw or amend it upon such terms as may be just. (Rule 23, Sec. 4). To effect the withdrawal, the admitting party should file a motion to be relieved of the effects of his admission. (RIANO, 2019, p. 494) Defect in the Request for Admission The request for admission of documentary evidence was held to be defective for the petitioner failed to comply with the requirements under Section 1 of Rule 26 which provides that a party may serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request; and that copies of the documents should be delivered with the request unless copies have already been furnished. (Duque v. Court of Appeals, G.R. No. 125383, 2002) REMEDIAL LAW Objections to Requests for Admission Objections to any request for admission shall be submitted to the court within the period for and prior to the filing of the sworn statement, i.e., fifteen (15) days after service of request. Such objections will defer compliance until such have been resolved by the court. (Rule 26, Sec. 2(2)). a. Implied Admission By Adverse Party There is an implied admission if the party to whom the request is made does not file and serve a sworn statement either: a. Denying specifically the matters of which an admission is requested; or b. Setting forth the reasons why he or she cannot truthfully admit or deny those matters. The sworn statement must be filed and served within the period designated in the request for admission but shall not be less than fifteen (15) calendar days after service of the request. (Rule 26, Sec. 2). To avoid the implied admission, the party requested may have the compliance of the filing and service of the sworn statement deferred. This deferment may be effected by the filing with the court objections to the request for admission. (RIANO, 2019, p. 495, also see Rule 26, Sec. 2(2)) That the Comment was not under oath is not a substantive, but merely a formal, defect which can be excused in the interest of justice conformably to the well-entrenched doctrine that all pleadings should be liberally construed as to do substantial justice. The filing of such Comment substantially complied with Rule 26. Consequently, the DBP cannot be deemed to have impliedly admitted the matters set forth in the Request for Admission for the mere reason that its Comment was not under oath. (DBP v CA, G.R. No. 153034, 2005). b. Consequences Of Failure To Answer Request For Admission If a sworn denial (see Rule 26, Sec. 2) is filed and served to the party requesting for admission, and the latter thereafter proves the genuineness of such document or the truth of any matter of fact, the party requesting, upon motion, apply for an Page 142 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 order requiring the other party to pay him reasonable expenses incurred in making such proof, including attorney’s fees. The order shall be issued unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance. (Rule 29, Sec. 4). If the party to whom the written request for admission is directed does not file the required sworn statement, each of the matters of which an admission is requested shall be deemed admitted (Estate of Ferdinand E. Marcos v. Republic, G.R. No. 213037) c. Effect Of Admission REMEDIAL LAW b. Order any party to permit entry upon designated land or other property in his possession or control for purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation therein. (Rule 27, Sec. 1). Filing of a Motion; Order of the Court 1. The motion must be filed by the party seeking the production or inspection of documents and things, and the motion must show good cause supporting the same. 2. The order shall specify the time, place and manner of making the inspection and taking copies and photographs and may prescribe such terms and conditions as are just. (Rule 27, Sec. 1). Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him or her for any other purpose nor may the same be used against him or her in any other proceeding. (Rule 26, Sec. 3) This mode of discovery is not only for the benefit of a party, but also for the court and for it to discover all relevant and material facts in connection with the case before it. (RIANO, 2019, p. 496). d. Effect Of Failure To File And Serve Request For Admission The scope of discovery under this mode is to be liberally construed so as to provide the litigants with information essential to the fair and amicable settlement or expeditious trial of the case. While the grant of a motion for the production of a document is admittedly discretionary on the part of the trial court judge, nevertheless, it cannot be arbitrarily or unreasonably denied because to do so would bar access to relevant evidence that may be used by a party-litigant. The test to be applied by the trial judge in determining the relevancy of the documents is one of reasonableness and practicability. (Eagleridge Development Corporation v Cameron Granville 3 Asset Management Inc., G.R. No. 204700, 2013). As a consequence of the failure to avail of this mode of discovery, the party shall not be permitted to present evidence on facts that are material and relevant and which are, or ought to be, within the personal knowledge of the other party, unless otherwise allowed by the court for good cause shown and to prevent a failure of justice. (RIANO, 2019, p. 494; see also Rule 26, Sec. 5). 4. PRODUCTION AND INSPECTION OF DOCUMENTS OR THINGS Purpose The purpose of this mode of discovery is to allow a party to seek an order from the court in which an action is pending to: a. Order any party to produce and permit the inspection and copying or photographing of any designated document, not privileged, which constitute or contain evidence material to any matter; or In Security Bank Corporation v. Court of Appeals (G.R. No. 135874, 2000), the Court enumerated the requisites in order that a party may compel the other party to produce or allow the inspection of documents or things, viz.: 1. The party must file a motion for the production or inspection of documents or things, showing good cause therefor; Page 143 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 2. Notice of the motion must be served to all other parties of the case; 3. The motion must designate the documents, papers, books, accounts, letters, photographs, objects or tangible things which the party wishes to be produced and inspected; 4. Such documents, etc., are not privileged; 5. Such documents, etc., constitute or contain evidence material to any matter involved in the action, and 6. Such documents, etc., are in the possession, custody or control of the other party. Limitation of Order A motion for production and inspection of documents should not demand a roving inspection of a promiscuous mass of documents. The inspection should be limited to those documents designated with sufficient particularity in the motion, such that the adverse party can easily identify the documents he is required to produce, otherwise the petition cannot prosper. (Alvero v. Dizon, G.R. No. L-342, May 4, 1946). This is essentially a mode of discovery limited to the parties to the action. This is to be differentiated from a subpoena duces tecum which is a means to compel the production of evidence, which may be directed to a person who may or may not be a party to the action. (RIANO, 2014, p.525) Documents to be Produced 1. It should NOT be privileged; 2. It should constitute or contain evidence material to any matter involved in the action; and 3. It must be within the party’s possession, custody or control. Privileged Documents (Rule 130, Sec. 24) 1. Communication between Husband and Wife; 2. Communication between Attorney and Client; 3. Communication between Physician and Patient; 4. Communication between Priest and Penitent; and 5. Communication of Public Officers involving public interest. REMEDIAL LAW Others privileged documents not mentioned by Rule 130 1. Editors may not be compelled to disclose the source of published news; 2. Voters may not be compelled to disclose for whom they voted; 3. Trade secrets; 4. Information contained in tax census returns; and 5. Bank Deposits. (Air Philippines Corporation v. Pennswell, Inc., G.R. No. 172835, December 13, 2007). Order Merely Interlocutory An order for the discovery and production by defendants of documents for inspection, copying and photographing by the plaintiff for use at trial of the action was interlocutory and not appealable. (Apex Hoisery Co. v. Leader, et al., 102 F 2d 702, 1939). 5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS Purpose This mode of discovery applies to an action in which the mental or physical condition of a party is in controversy (Rule 28, Sec. 1). such as: i. Annulment of a contract where the ground relied on is insanity; ii. Petition for guardianship of a person alleged to be insane; and iii. An action to cover damages for personal injury where the issue is the extent of the injuries of the plaintiff. (RIANO, 2019, p. 498). Procedure A motion must show good cause for the examination with notice to the other parties aside from the party to be examined The motion shall likewise specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The motion is to be filed with the court where the action is pending. (Rule 28, Sec. 2). Rights of the Examined Party and Party Causing the Examination The examined party has the right to request the party causing the examination to be made to Page 144 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination shall be entitled, upon request to receive from, the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver the report, the court may make an order requiring the delivery on terms as are just. If it is the physician who fails or refuses to make a report, the court may exclude his testimony if offered in trial. (Rule 28, Sec. 3). Waiver of Privilege By requesting and obtaining a report of the examination or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine him. (Rule 28, Sec. 4). 6. CONSEQUENCES OF REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY ACT OF REFUSAL CONSEQUENCES To answer a. If a party refuses to answer any/all any question any question(s) interrogatory, the examination may be upon oral completed on other examination/ matters or adjourned as refuses to answer the proponent of the question in question may prefer. (Rule the 29, Sec. 1). interrogatory b. If the motion is GRANTED– (with court the court shall require the motion to refusing party to answer. compel an If the refusal to answer answer) was without SUBSTANTIAL JUSTIFICATION, it may require the refusing party REMEDIAL LAW or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney's fees. (Rule 29, Sec. 1) c. If the motion is DENIED and the court finds that the motion was filed WITHOUT SUBSTANTIAL JUSTIFICATION, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney's fees (Rule 29, Sec. 1) If despite the court order, the party or deponent still refuses to answer, the refusal may be considered contempt of that court (Rule 29, Sec. 2) To answer a a. Matters, regarding which the particular questions were asked, shall be taken established question, produce for purposes of the documents, action (Rule 29, Sec 3[a]) or submit to b. The court may issue an physical or order refusing to allow mental the disobedient party to examination support or oppose designation claims or defenses, or presenting evidence designated documents or physical or mental condition (Rule 29, Sec. 3[b]) Page 145 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 c. The court may issue an order striking pleadings or part thereof, staying further proceedings until the order is obeyed, or dismiss the complaint or part thereof, or render the disobeying party in default (Rule 29, Sec. 3[c]) d. May direct the arrest of the disobeying party or the agent except an order to submit to physical or mental examination (Rule 29, Sec. 3[d]) To be sworn Contempt of court (Rule 29, Sec. 2) To admit genuinenes s of document or truth of fact If the requesting party later proves the genuineness of the document or truth of fact, the court may order the refusing party to pay the reasonable expenses in making such proof. Including attorney’s fees REMEDIAL LAW propounded by the court during deposition in the court Expenses Against the Republic of the Philippines Expenses and attorney's fees are not to be imposed upon the Republic of the Philippines under this Rule. In Zepeda v. Chinabank, G.R. No. 172175, 2006, the Supreme Court ruled that the consequences enumerated in Section 3(c) of Rule 29 would only apply where the party upon whom the written interrogatories is served, refuses to answer a particular question in the set of written interrogatories and despite an order compelling him to answer the particular question, still refuses to obey the order. If such party refuses to answer the whole set of written interrogatories and not just a particular question, the opposing party should have filed a motion based on Section 5 and not Section 3(c) of Rule 29. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued. (Rule 29, Sec. 4) Attend depositions or to serve any/all answer to the questions in the interrogatorie s The court may issue an order striking pleadings or part thereof, or dismiss the complaint or part thereof, or render the disobeying party in default, or to pay the reasonable expenses in making such proof. Including attorney’s fees. (Rule 29, Sec. 5) To answer Contempt of court (Rule 29, any question Sec. 2) Page 146 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 O. TRIAL Trial vs. Hearing Trial is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments. (Velarde v. SJS, G.R. No. 159357, 2004). Hearing is a broader term. It is not only confined to the trial and presentation of evidence, but it also includes pre-trial, determination of granting or denying a motion and several stages of litigation. (Trocio v. Labayo. 53 SCRA 97,100, 1973). Necessity of Trial General Rule: A trial is necessary when there are issues to be tried as a result of the specific denials of the material allegations in the complaint (RIANO, 2019, p. 503). Exceptions: Trial is unnecessary: a. Where the pleadings of the parties tender to no issue at all: Judgment on the Pleadings (Rule 34) b. Wherefrom the pleadings, affidavits, depositions and other papers, there is actually no genuine issue: Summary Judgment (Rule 35) c. Where the parties have entered into a compromise or an amicable settlement: Judgment on Compromise (Rule 18) d. Dismissal of complaint with prejudice e. Summary procedure cases f. Where the parties agree, in writing, upon the facts involved in the litigation, and submit the case for judgement on the facts agreed upon: Judgment on Facts Stipulated/Agreed Upon (Sec. 6, Rule 30, ROC) (RIANO, 2019, p. 504) 1. ADJOURNMENTS AND POSTPONEMENTS A court may adjourn a trial from day to day and to postpone it to any stated time. REMEDIAL LAW General Rule: A court does not have power to adjourn trial for a longer period than one (1) month for each adjournment and not for more than three (3) months total for all adjournments. Exception: When authorized in writing by the Court Administrator, Supreme Court. (Rule 30, Sec. 2). 2. REQUISITES OF MOTION TO POSTPONE TRIAL a. For Absence Of Evidence The section covering the requisites of motion to postpone trial for absence of evidence (former Sec. 3 of Rule 30) has been deleted. Under the 2019 Amendments, trial may only be postponed on the ground of illness of party or counsel (now Sec. 3 of Rule 30). b. For Illness Of A Party Or Counsel Requisites: 1. Affidavit or sworn certification showing that the presence of such party or counsel at the trial is indispensable; and 2. The character of the illness is such as to render the non-attendance excusable. (Sec 3, Rule. 30). Postponement is NOT a matter of right. It is addressed to the sound discretion of the court. (Go-Bangayan v. Bangayan, Jr. G.R. No. 201061, July 3, 2013) The party who caused the postponement is warned that the presentation of its evidence must still be terminated on the remaining dates previously agreed upon. (Rule 30, Sec. 2). 3. AGREED STATEMENT OF FACTS Parties to ANY action may agree upon the facts involved in the litigation. Such agreement must be in WRITING and upon facts involved in the litigation. The case will then be submitted for judgment on the facts agreed upon WITHOUT need for introduction of evidence. Page 147 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 If the parties agree only on some of the facts, trial shall be held as to the disputed facts. (Sec. 7, Rule 30) 4. ORDER OF TRIAL; REVERSAL OF ORDER Order of Trial The trial shall proceed as follows: 1. Plaintiff shall adduce evidence in support of his complaint; 2. Defendant shall then adduce evidence in support of his defense, counterclaim, crossclaim or third-party complaint; 3. Third-party defendant shall adduce evidence in support of his defense, counterclaim, crossclaim, fourth-party complaint; 4. Fourth-party defendant and so on shall adduce evidence of the material facts pleaded by him; 5. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order prescribed by the court; 6. Parties may then adduce rebutting evidence only, unless the court permits them to adduce evidence upon their original case; 7. Oral argument and submission of memoranda and any further pleadings, if required by the court; and 8. Case deemed submitted for decision. The trial shall be limited to the issues stated in the pre-trial order. (Sec. 5, Rule 30). REMEDIAL LAW the relative order of presentation of their evidence. (Sec. 5, Rule 30). Schedule of Trial The 2019 Amendments incorporated in the Rules of Court the Revised Rules on Continuous Trial (A.M. 15-06-10 S.C, see Sec 1, Rule 30). The parties shall strictly observe the scheduled hearings as agreed upon and set forth in the pretrial order. The schedule of trial dates, for both plaintiff and defendant, shall be continuous and within the following periods: STEP WHEN DONE TIME ALLOWED Initial Presentation of Plaintiff’s evidence. Not later than 30 days from the termination of the pre-trial conference. Within 3 months/90 calendar days which shall include the Judicial Dispute Resolution, if necessary. Initial Presentation of Defendant’s evidence. Not later than 30 days after the court’s ruling on the plaintiff’s formal offer of evidence. Within the 3 months/ 90 calendar days. The above order is only the general rule. In furtherance of justice and to avoid any prejudice, the court may order a separate trial of: a. Any claim, cross-claim, counterclaim, or thirdparty complaint; b. Any separate issue; or c. Any number of claims, crossclaims, counterclaims, third-party complaints or issues. (Sec.5, Rule 30 & Sec. 2, Rule 31). Determined Presentation of evidence by the court. of third, (fourth etc.) party claim, cross-claim, or counterclaim . Shall not exceed 90 calendar days. If the several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine Determined Presentation of parties’ by the court. rebuttal Shall be completed Page 148 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 evidence, necessary. Decision the court. if by After submission of the case for resolution. REMEDIAL LAW within a period of 30 days. Period not exceeding 90 days, with or without memoranda Hearing Days and Calendar Call Under the 2019 Amendments, trial shall be held from Monday to Thursday, and the courts having to call the cases at exactly 8:30 am to 2:00 pm pursuant to ADMINISTRATIVE CIRCULAR NO. 399. Hearing on motions shall be held on Fridays, pursuant to Sec. 8, Rule 15. (Sec 1, Rule 30). The trial dates may be shortened determined on the number of witnesses presented, provided that the presentation of evidence of all parties shall be terminated within a period of 10 months or 300 calendar days. (Sec 1, Rule 30). If there are no third (fourth, etc.) party claim, counterclaim, or cross-claim, the presentation of evidence shall be terminated within a period of 6 months or 180 calendar days. (Sec 1, Rule 30). Reversal or Modification of Order of Trial If the defendant relies upon an affirmative defense in his answer, then the order of the trial may be properly reversed. This is because the plaintiffs need not present evidence as judicial admissions do not require proof. (see Sec. 5, Rule 6). The defendant in this case will present evidence ahead of the plaintiff. (People of the Philippines v. SPO1 Marcial, G.R. No. 152864-65, September 27, 2006) In the exercise of its discretion, it courts, in receiving evidence, may use a method aside from the traditional modes mentioned in the rules of court. An example of this is the “hot tubbing method” where the judge can hear all the experts discussing the same issue at the same time to explain each of their points in a discussion with a professional colleague (International Service for the Acquisition of the Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia Philippines, G.R. No. 209271, Dec. 8, 2015). All courts must ensure that posting of their court calendars outside their courtrooms at least one day before the scheduled hearings, pursuant to OCA Cir. No. 250-2015. (Sec 4, Rule 30). Suspension of Actions The suspension of actions shall be governed by the Civil Code and other laws. (Sec. 8, Rule 30.) 5. CONSOLIDATION OR SEVERANCE When Consolidation is Proper A court may order consolidation when: 1. There are actions involving a common question of law or fact; and 2. The actions are pending before the same court. (Sec. 1, Rule 31). How Consolidation Made When circumstances warrant the consolidation to be proper, the court may order: a. A joint hearing or trial of any and all matters or issue in the action; b. Consolidation of all actions; or c. Such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (Sec. 1, Rule 31). Consolidation of cases may take place in any of the following ways: a. Where all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such. (quasi-consolidation); b. Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by a situation where several actions are pending between the Page 149 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 same parties stating claims which might have been set out originally in one complaint. (actual consolidation); c. Where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other. (consolidation for trial) (Producers Bank of the Phils. V. Excelsa Industries, Inx., GR No. 173820, 2012). Civil cases MAY now be consolidated with criminal cases. (Rule 111, Section 2[a]). Consolidation is a matter of discretion with the court. Consolidation becomes a matter of right only when the cases sought to be consolidated involve similar questions of fact and law, provided certain requirements are met. An essential requisite of consolidation is that the court must have jurisdiction over all the cases consolidated before it. In this case, since the Sandiganbayan does not have jurisdiction over the collection case, the same cannot be consolidated with the criminal cases even if these cases involve similar questions of fact and law. (Republic v. Court of Appeals, G.R. No. 116463, 2013). REMEDIAL LAW In the appellate stage, the rigid policy is to make the consolidation of all cases and proceedings resting on the same set of facts, or involving identical claims or interests or parties mandatory. Such consolidation should be made regardless of whether or not the parties or any of them requests it. (In re: Fabiana, A.M. No. CA-12-51-J, 2013) Proceedings for the issuance of a writ of possession being ex parte and non-litigious in nature, cannot be consolidated with proceedings seeking to nullify the extra-judicial foreclosure or the certificate of sale. (Espinoza v. UOB, G.R. No. 175380, 2010). When Severance is Proper In furtherance of justice and to avoid any prejudice, the court may order a separate trial of: a. Any claim, cross-claim, counterclaim, or thirdparty complaint; b. Any separate issue; or c. Any number of claims, cross-claims, counterclaims, third-party complaints or issues. (Sec.5, Rule 30 & Sec. 2, Rule 31). 6. DELEGATION OF RECEPTION OF EVIDENCE General Rule: The JUDGE of the court where the case is pending shall personally receive the evidence to be adduced by the parties. Under the Rules of Court, the consolidation of cases for trial is permissive and a matter of judicial discretion. This is because trials held in the first Exception: The court may delegate the reception instance require the attendance of the parties, of evidence to its clerk of court, who is a their respective counsel and their witnesses, a member of the Bar, in: task that surely entails an expense that can multiply if there are several proceedings upon the 1. a. Default or ex parte hearings; or same issues involving the same parties. At the trial 2. b. Any case where the parties so agree in writing. stage, the avoidance of unnecessary expenses The clerk of court has the duty to submit his report, and undue vexation to the parties is the primary objections, and transcripts of the proceedings objective of consolidation of cases. within 10 days from the termination of hearing. But the permissiveness of consolidation does not carry over to the appellate stage where the primary objective is less the avoidance of unnecessary expenses and undue vexation than it is the ideal realization of the dual function of all appellate adjudications. The CLERK OF COURT shall have NO power: a. To rule on objections to any question; or b. To rule on the admission of exhibits. Such power shall remain with the judge. The judge shall resolve such objections within ten (10) Page 150 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 calendar days from the hearing. (Sec. 9, Rule 30). REMEDIAL LAW termination of 7. TRIAL BY COMMISSIONERS a. Reference By Consent Or Ordered On Motion Reference by Consent By written consent of both parties, the court may order the trial of any or all of the issues in a case to be referred to a COMMISSIONER. (Sec. 1, Rule 32) Reference Ordered by the Court If there is no written consent from both of the parties, the court may direct a reference to a Commissioner, either: a. Upon motion of either party, or b. Upon the court’s own motion, when none of the parties do not consent. (Sec. 2, Rule 32) Reference to a commissioner may be made by the court in only the following cases: a. When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any question involved; b. When the taking of an account is necessary for the information of the court before judgment; c. When carrying a judgment or order into effect; d. When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the case. (Sec 2. Rule 32) Who are Commissioners As contemplated by the Rules of Court, a commissioner includes a referee, an auditor, and an examiner. The commissioner may either be: a. Agreed upon by both parties; or b. Appointed by the court. (e.g., in cases of expropriation, partition, settlement of Estate). (Sec. 1, Rule 32). Before entering upon his or her duties, the commissioner shall be sworn to a faithful and honest performance thereof. (Sec. 4, Rule 32) An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be remedied, either before the parties proceed with the hearing or before the court hands down its ruling. It is a procedural point that can be waived by consent of the parties, express or implied. However, if the errors in the procedure for the appointment of the commissioner are not prejudicial to the parties because there is no proof that the commissioner committed any mistake or abuse in the performance of the task entrusted to him, the holding of a new trial by reason thereof alone is not justified (CCC Insurance Corporation v. Court of Appeals 31 SCRA 264, 1970) b. Powers Of The Commissioner Order of Reference When a reference to a commissioner is made, the clerk of court shall furnish the commissioner a copy of the order of reference. Such order shall: 1. Specify or limit the powers of the commissioner; 2. May direct him or her to report only upon particular issues; 3. May direct him or her to do or perform particular acts only; 4. May direct him or her to receive and report evidence only; 5. Fix the date for beginning and closing the hearings; and 6. Fix the date for the filing of his or her report. (Sec 3, Rule 32). Powers of the Commissioner Subject to the limitations set forth by the order of reference, the Commissioner has the power to: i. Regulate the proceedings before him; ii. Do all acts and take measures necessary for the efficient performance of his duties; iii. Issue subpoena and subpoena duces tecum; iv. Swear in witnesses; v. Rule on the admissibility of evidence, unless otherwise provided in the order of reference; and vi. Do all acts and take all measures necessary or proper, for the efficient performance of his duties. Page 151 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 The trial or hearing before him or her shall proceed in all aspects as it would if held before the court. (Sec 3, Rule 32). Proceeding Before the Commissioner Upon receipt of the order of reference, unless provided therein, the commissioner shall forthwith set a time and place for the first meeting of the parties of their counsel to be held within 10 calendar days after the date of the order of reference and shall notify the parties or their counsel. (Sec. 5, Rule 32). It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on notice to the party and commissioner, may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his or her report. (Sec. 8, Rule 32). Failure of Party to Appear Before the Commissioner If a party fails to appear at the time and place appointed, the commissioner may: a. Proceed with the proceedings ex parte; or b. In his or her discretion, adjourn the proceeding to a future day, giving notice to the absent party or his or her counsel of the adjournment. (Sec 6, Rule 32). The refusal of a witness to obey to a subpoena issued by the commissioner or to give evidence before him or her, shall be deemed a contempt of court which appointed the commissioner. (Sec. 7, Rule 32). c. Commissioner’s Report; Notice To Parties And Hearing On The Report Commissioner’s Report Upon completion of trial or hearing or proceeding before the Commissioner, the Commissioner shall file a report in writing: 1. Showing the matters submitted to him in the order of reference; or 2. His or her findings of fact or conclusions of law, when his or her power is not so limited. He shall also attach all exhibits affidavits, depositions, papers and the transcript of REMEDIAL LAW testimonial evidence presented before him. (Sec. 9, Rule 32). Notice to Parties Upon filing of the Commissioner’s Report, the Clerk of Court shall notify the parties. Parties are allowed ten (10) calendar days from such notice to signify grounds for objections to the findings. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions herein set forth, shall not be considered by the court UNLESS they were made before the commissioner. (Sec. 11, Rule 32) Hearing on the Report After the expiration of the ten (10) calendar day period after notice to file an objection, a hearing shall be set on the report. After hearing the court shall issue an order adopting, modifying or rejecting the Commissioner’s Report. When the parties stipulate that a commissioner's findings of fact shall be final, only questions of law shall thereafter be considered. (Sec. 12, Rule 32). P. DEMURRER TO EVIDENCE Nature of Demurrer A demurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. (Felipe v MGM Motor Trading, GR No 191849, Sep. 23, 2015). A demurrer to evidence is actually a motion to dismiss on the ground of insufficiency of evidence. The question in a demurrer to evidence is whether the plaintiff, by his evidence in chief, had been able Page 152 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 to establish a prima facie case. (Republic v. De Borja, G.R. No. 187448, Jan. 9, 2017). The review of a dismissal of the complaint on based on a demurrer to evidence naturally entails a calibration of the evidence to determine whether the material allegations of the complaint were sufficiently backed by evidence. Hence, the same involves a question of fact. Rule 45 is a wrong mode of appeal for a demurrer. (Felipe v. MGM Motor Trading Corp., G.R. No. 191849 Sep. 23, 2015). 1. GROUNDS Insufficiency of Evidence as Ground for a Demurrer After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law, the plaintiff has shown NO RIGHT TO RELIEF (Sec. 1, Rule 33). The evidence contemplated by the rule on demurrer is that which pertains to the merits of the case, excluding technical aspects such as capacity to sue. (Celino v. Heirs of Alejo and Teresa Santiago, G.R. No. 161817, Jul. 30, 2004). In a demurrer to evidence, however, it is premature to speak of "preponderance of evidence" because it is filed prior to the defendant's presentation of evidence; it is precisely the office of a demurrer to evidence to expeditiously terminate the case without the need of the defendant's evidence. (Republic v. De Borja, G.R. No. 187448, Jan. 9, 2017). What should be resolved in a motion to dismiss based on a demurrer to evidence is whether the plaintiff is entitled to the relief based on the facts and the law. The “facts” referred to include judicial admissions, matters of judicial notice, stipulations made during the pre-trial and trial, admissions, and presumptions, the only exclusion being the defendant’s evidence. (GMA Network v. Central CATV, G.R. No. 176694, 2014) REMEDIAL LAW 2. EFFECT OF DENIAL Effect of Denial of Demurrer to Evidence If the defendant’s motion is denied, the defendant shall have the right to present evidence. (Sec. 1, Rule 33). The trial court erred in deciding the entire case on its merits. It had no choice other than to grant or to deny the demurrer. It could not deny the motion and then forthwith grant the plaintiff’s claims on a finding that the latter has established a preponderance of evidence in support of such claims. (Northwest Airlines, Inc. v. Court of Appeals, G.R. Nos. 120334, Jan. 20, 1998). But in an election case, a party whose demurrer was denied does not have the right to present evidence. The nature of an election protest case differs from an ordinary civil action. Because of this difference, the Rules of Civil Procedure on demurrer to evidence cannot apply to election cases even "by analogy or in a suppletory character." (Gementiza v. Commission on Elections, G.R. No. 140884, Mar. 6, 2001). An order denying a demurrer to the evidence is INTERLOCUTORY and is therefore NOT appealable. (Katigbak v. Sandiganbayan, G.R. No. 140183, Jul. 10, 2003). Furthermore, under the 2019 Amendments, the order denying the demurrer to evidence shall not be: 1. Subject of an appeal; or 2. Petition for certiorari, prohibition, or mandamus before judgment. (Sec. 2, Rule 33). Note: In case of the denial of the demurrer and the case was decided against the defendant, the remedy is to appeal from the judgment raising as error the denial of the demurrer. (Id.). 3. EFFECT OF GRANT Effects of Granting the Demurrer to Evidence The court, upon granting the demurrer, shall dismiss the case. (Sec. 1, Rule 33). Page 153 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW It is axiomatic that a dismissal on the basis of a demurrer to evidence is similar to a judgment; it is a final order ruling on the merits of a case. (Republic v. De Borja, G.R. No. 187448, Jan. 9, 2017). Effect of Denial vs. Granting Demurrer MOTION DENIED MOTION GRANTED Movant shall have the The case shall be right to present his dismissed. evidence. INTERLOCUTORY; however, the denial of the demurrer is not subject to appeal, certiorari, prohibition, or mandamus. The remedy is to appeal from the adverse judgment on the part of the defendant. ADJUDICATION ON THE MERITS. It is appealable on the part of the plaintiff. If on appeal of the judgment, denial of demurrer is reversed, the case shall be dismissed. If on appeal, demurrer is reversed, defendant deemed to have waived his right to present evidence; appellate court shall render judgment based on the evidence of the plaintiff. 4. WAIVER OF RIGHT TO PRESENT EVIDENCE 5. DISTINGUISH: DEMURRER TO EVIDENCE IN A CIVIL CASE AND DEMURRER TO EVIDENCE IN A CRIMINAL CASE CIVIL CASE NO need for leave of court for defendant to file demurrer to evidence. If court finds plaintiff’s evidence insufficient, demurrer will be granted and complaint will be dismissed. This dismissal is appealable. If plaintiff appeals and the judgment is reversed, the appellate court will decide the case on the basis of plaintiff’s evidence and the defendant loses his right to present evidence. If court denies demurrer, defendant will present his evidence CRIMINAL CASE Leave of court is NECESSARY so that the accused could present his evidence if his demurrer is denied. If court finds prosecution’s evidence insufficient, demurrer will be granted and judgment will be rendered acquitting the accused. The judgment is not appealable based on double jeopardy. Judgment is NOT appealable by reason of the double jeopardy rule. If court denies demurrer, either of the following will happen: Effect of Reversal of Demurrer on Appeal If on appeal, the order granting the motion for demurrer is reversed, the defendant loses his right to present evidence. (Sec. 1, Rule 33). 1. If demurrer was WITH express leave of court, accused may present evidence; If, upon appeal, the demurrer is reversed, the appellate court should not remand the case back to the trial court. Instead, it should render judgment on the basis of the evidence submitted by the plaintiff. (Radiowealth Finance Corp. v. Del Rosario, G.R. No. 138739, Jul. 6, 2000). 2. If demurrer was WITHOUT leave of court, accused can no longer present evidence and the case is submitted for decision based on Page 154 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 CIVIL CASE The court cannot, on its own make a demurrer. CRIMINAL CASE prosecution’s evidence. The court, after the prosecution has rested its case, shall inquire from the accused if he desires to move for leave of court to file a demurrer or proceed with the presentation of his evidence. (Revised Guidelines for Continuous Trial in Criminal Cases). (RIANO, 2019, p.516). REMEDIAL LAW 5. Filed with the clerk of court. (Sec. 1, Rule 36). Furthermore, due process dictates that before any decision can be validly rendered in a case, the following safeguards must be met: 1. The court or tribunal must be clothed with judicial authority to hear and determine the matter before it; 2. It must have jurisdiction over the person of the party or over the property subject of the controversy; 3. The parties thereto must have been given an opportunity to adduce evidence in their behalf, and 4. Such evidence must be considered by the tribunal in deciding the case. (Acosta v. COMELEC, G.R. No. 131488, August 3, 1988). 1. JUDGMENT AFTER PRE-TRIAL Similarities of Both Demurrer in a Civil case and a Criminal Case Both are based on insufficiency of evidence presented by the plaintiff or the prosecution to warrant the grant of affirmative relief in favor of the plaintiff nor conviction of accused. (Sec. 1, Rule 33; Sec. 23, Rule 119). In both, the motion is filed after the plaintiff or the prosecution has presented evidence and closed his or its case. (Id.). Q. JUDGMENTS AND FINAL ORDERS Meaning of Judgment A judicial act which settles the issues, fixes the rights and liabilities of the parties, and determines the proceeding, and is regarded as the sentence of the law pronounced by the court on the action or question before it. (Legarda v. Court of Appeals, G.R. No. 94457, Oct. 16, 1997). Requisites of a Valid Judgment The requisites of a valid judgment are: 1. In writing; 2. Personally and directly prepared by the judge; 3. State clearly and distinctly the facts and the law on which it is based; 4. Signed by the judge; Proprietary of Rendering Judgment at Pre-Trial During the pre-trial, among the matters that the court should consider is the proprietary of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist. (Sec. 2(f), Rule 18). The court shall motu proprio include in the pre-trial order that the case be submitted for summary judgment or judgment on the pleadings, without need of position papers or memoranda, should there/it be: a. No more controverted facts; b. No more genuine issue as to any material fact; c. Absence of an issue; or d. That the answer fails to tender an issue. This is without prejudice to a party moving for judgment on the pleadings or summary judgment under Rules 34 and 35, respectively. In such cases, judgment shall be rendered within ninety (90) calendar days from termination of the pre-trial. The order of the court to submit the case for judgment pursuant to this Rule shall not be the subject to appeal or certiorari. (Rule 18, Sec. 10). Page 155 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 In one case, petitioner moved for a summary judgment after pre-trial. Respondent countered, arguing that by agreeing to proceed to trial during the pre-trial conference, petitioner waived its right to summary judgment. The Court ruled in favor of the petitioner, holding that if plaintiff was allowed to move for summary judgment even after trial and submission of the case for resolution, more so should we permit it in the present case where petitioner moved for summary judgment before trial. Whenever it becomes evident at any stage of the litigation that no triable issue exists, or that the defenses raised by the defendants are sham or frivolous, plaintiff may move for summary judgment. (Republic v. Sandiganbayan, G.R. No. 152154, Jul. 15, 2003). 2. JUDGMENT WITHOUT TRIAL A decision rendered without a full-blown trial. Examples include judgment by confession and judgment upon a compromise. Judgment by Confession This is a judgment rendered by the court after a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him. (RIANO, 2019, p. 543). Judgment Upon a Compromise A compromise judgment is a decision rendered by a court sanctioning the agreement between the parties concerning the determination of the controversy at hand. REMEDIAL LAW Judgment upon a compromise is immediately executory upon the signing of the compromise agreement in the absence of a motion to set aside on the ground of fraud, mistake, etc. Hence, it has the effect of res judicata. (World Machine Enterprises v. IAC, G.R. No. 72019, 1990). It is well-settled that a judicial compromise has the effect of res judicata and is immediately executory and not appealable unless a motion to set aside the same is led on the ground of fraud, mistake or duress, in which event an appeal may be led from an order denying the same. A court cannot set aside a judgment based on compromise without having declared in an incidental hearing that such a compromise is vitiated by any of the grounds for nullity enumerated (Salvador v. Ortoll, G.R. No. 140942, Oct. 18, 2000). 3. JUDGMENT ON THE PLEADINGS When Judgment on the Pleadings Made The court upon motion of the claimant on the ground that an answer: a. Fails to tender an issue; or b. Otherwise admits the material allegations of the adverse party’s pleading. (Sec. 1, Rule 34) It is a form of judgment that is exclusively based on the submitted pleadings without the introduction of evidence as the factual issues remain uncontroverted. (GSIS v. Prudential, G.R. No. 165585, 2013) Essentially, it is a contract, stamped with judicial imprimatur, between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their difficulties by mutual consent in the manner which they agree on, and which each of them prefers in the hope of gaining, balanced by the danger of losing. A judgment on the pleadings will not apply when no answer is filed. It will come into operation only when an answer is served and filed but the same fails to tender an issue or admits the material allegations of the adverse party’s pleading. (RIANO, 2019, p. 544) However, upon court approval of a compromise agreement, it transcends its identity as a mere contract binding only upon the parties thereto, as it becomes a judgment that is subject to execution. (Diamond Builders Conglomeration v. Country Bankers Insurance Corp., G.R. No. 171820, Dec. 13, 2007). When Answer Fails to Tender An Issue An answer fails to tender an issue if it does not comply with the requirements of a specific denial as set out in Sections 8 (actionable document denial under oath) and 10 (specific denial) [of Rule 8]. Failure to deny such would result in the admission of the material allegations of the Page 156 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW adverse party’s pleadings. (Asian Construction v. Sanneadle, G.R. No. 181676, June 11, 2014) the motion shall be subject to the provisions of Rule 15 (Motions). (Sec. 2, Rule 34). The defense of the defendant was that plaintiff was in bad faith. The court ruled that the answer in fact tendered an issue hence judgment on the pleadings would be inapplicable. The plaintiff, in this case, prayed for an accounting which required a full blown trial (requires presentation of evidence on partial payment) hence, there was a genuine issue in the case at bar. (Sps. Ong v. Roban Lending, G.R. No. 172592, 2008) A motion for judgment on the pleadings is a litigious motion. (Sec. 5, Rule 15) When Answer Otherwise Admits Material Allegations of a Pleading The answer admits the material allegations of the adverse party’s pleading by: a. Expressly admitting the truth of such allegations; b. Failing to make a specific denial of the material allegations; or c. Omitting to deal with the material allegations at all. (Medical Enterprises, Inc. v. Wesleyan University Philippines, G.R. No. 207970, January 20, 2016; RIANO, 2019, p. 544) Normally, it is the plaintiff who files a judgment on pleadings. But in one case, the defendant was the one who moved for judgment on pleadings without offering proof as to the truth of her allegations and without giving the plaintiff opportunity to introduce evidence. The Court ruled that the defendant is deemed to have admitted the material and relevant matters of the complaint. (Sunbanun v. Go, G.R. No. 163280, 2010). Sham denials, consisting of an avowed lack of knowledge of facts which could not but be clearly known by them, in effect tender no issue, or otherwise admit the allegations of the complaint material to a valid decision. (Manufacturer’s Bank v. Diversified, G.R. No. 33695, 1989) Action on Motion for Judgment on the Pleadings The court may motu propio or on motion render judgment on the pleadings if it is apparent from the answer that there are grounds for such. Otherwise, Also, if at pre-trial, the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio. (Sec. 2(f), Rule 18; see discussion on judgment at pre-trial) Any action of the court on a motion for judgment on the pleadings shall not be subject of an appeal or petition for certiorari, prohibition, or mandamus. (Sec. 2, Rule 34) A Motion for Judgment on the Pleadings is one that is considered ex parte because upon particular facts thus presented, the plaintiff is entitled to judgment. (Dino v. Valencia, G.R. No. L43886, 1989) Cases Where Judgment on the Pleadings Do Not Apply In the following cases, a judgment on the pleadings will not apply: a. Declaration of nullity of marriage; b. Annulment of marriage; and c. Legal separation; Note: for items 1 to 3, the material facts alleged in the complaint shall always be proven. The purpose is to prevent collusion between the parties. (Sec. 1, Rule 34, see Articles 48 and 60 of the Family Code) d. Cases involving unliquidated damages; e. Cases where a pleading contains a conclusion of law since it is the court which makes such conclusions; and f. Cases where the pleading contains nonmaterial averments or allegations. For numbers 4 to 6, there can be no deemed admission for failure to make a specific denial in the answer. (RIANO, 2019, p. 331, see Sec. 11, Rule 8) By moving for judgment on the pleading, plaintiff waives his claim for unliquidated damages. Claim for such damages must be alleged and proved. (see Sec. 11, Rule 8) Page 157 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 In actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proven. 4. SUMMARY JUDGMENT Nature of Summary Judgment A summary judgment, also called accelerated judgment, is proper where, upon a motion filed after the issues had been joined and on the basis of the pleadings and papers filed, the court finds that there is no genuine issue as to any material fact except as to the amount of damages. (Ley Construction and Development Corp. v. Union Bank of the Philippines, G.R. No. 133801, Jun. 27, 2000). What triggers a summary judgment is the absence of a genuine factual issue. It is not proper where there are factual issues to be resolved by the presentation of evidence. Even if there is a complicated question of law, if there is no issue as to the facts, a summary judgment is not barred. (Velasco v. CA, G.R. No. 121517, 2000). The very objective of the Rule on Summary Judgment which is to weed out sham claims or defenses thereby avoiding the expense and loss of time involved in a trial. (Republic v. Sandiganbayan, G.R. No. 152154, July 15, 2003). Subject Matter of Summary Judgment A summary judgment may cover matters involving: a. Recovery based on a claim, counterclaim, or cross-claim; or b. Obtaining a declaratory relief. (Sec. 1 & 2, Rule 35) An action for annulment of marriage cannot be decided by summary judgment proceeding (Roque v. Encarnacion, G.R. No. L-6505, 1954). Requisites for Summary Judgment For a summary judgment to be proper, the movant must establish two requisites: 1. There must be no genuine issue as to any material fact, except for the amount of damages; and REMEDIAL LAW 2. The party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. (Rivera v. Solidbank Corporation, G.R. No. 163269, April 19, 2006) Meaning of Genuine Issue A genuine issue is an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. The trial court can determine a genuine issue on the basis of the pleadings, admissions, documents, affidavits, or counter affidavits submitted by the parties. (Smart Communications, Inc. v. Aldecoa, G.R. No. 166330, September 11, 2013) An issue of material fact exists if the answer or responsive pleading filed specifically denies the material allegations of fact set forth in the complaint or pleading. If the issue of fact requires the presentation of evidence, it is a genuine issue of fact. However, if the issue could be resolved judiciously by plain resort to the pleadings, affidavits, depositions, and other papers on file, the issue of fact raised is sham, and the trial court may resolve the action through summary judgment. (Olivares Realty v. Castillo GR 196251, 2014) Burden of Proving Genuine Issue of Fact The party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to constitute a genuine issue for trial. (Philippine Bank of Communications v. Go, G.R. No. 175514, 2011) Motion and Proceedings for Summary Judgment To invoke the rule on summary judgments, a motion must be filed. Such motion must cite the supporting affidavits, depositions, admissions, and specific law relied upon. Within a non-extendible period of 5 calendar days from receipt of the motion, the adverse party may file a comment and serve opposing affidavits, depositions, or admissions. Page 158 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 Unless the court otherwise orders the conduct of a hearing, the court shall render the summary judgment sought should: 1. The supporting affidavits, depositions, admissions show that there is no genuine issue as to any material fact, except as to the amount of damages; and 2. The moving party, as a matter of law, is entitled to judgment. Any action of the court on a motion for summary judgment shall not be subject of an appeal, or petition for certiorari, prohibition, or mandamus. (Sec. 3, Rule 35) A motion for summary judgment is a litigious motion. (Sec. 5, Rule 15) The trial court cannot motu proprio decide that summary judgment on an action is in order. The defending party or claimant, as the case may be, must invoke the rule on summary judgment by filling a motion. The adverse party must be notified of the motion for summary judgment and furnished with supporting, affidavits, depositions or admissions before hearing is conducted. (Pineda v. Heirs of Eliseo Guevara, G.R. No. 143188, February 14, 2007) Under Section 3, Rule 35 of the Rules of Court, a summary judgment may not be rendered on the amount of damages, although such judgment may be rendered on the issue relating to the existence of the right to damages. (Ybiernas v. TancoGabaldon, G.R. No. 178925, 2011) a. For The Claimant A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time AFTER the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for summary judgment in his favor upon all or any part thereof. (Sec. 1, Rule 35). The phrase "anytime after the pleading in answer thereto has been served" in Section 1, Rule 35 means "at any stage of the litigation." Whenever it becomes evident at any stage of the litigation that REMEDIAL LAW no triable issue exists, or that the defenses raised by the defendants are sham or frivolous, plaintiff may move for summary judgment. (Republic v. Sandiganbayan, G.R. No. 152154, Jul. 15, 2003). b. For The Defendant A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at ANY TIME, move with supporting affidavits, depositions or admissions for summary judgment in his favor upon all or any part thereof. (Sec. 2, Rule 35). c. When The Case Not Fully Adjudicated On Motion Partial Summary Judgment If based on the motion, a trial is necessary because judgment was not rendered on the whole case or for all reliefs sought, the court may: 1. Ascertain what material facts exist without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy; and 2. Direct further proceedings in the action as are just. In ascertaining the material facts, the court can: 1. Examine the pleadings and evidence before it; and 2. Interrogate the parties' counsel. The facts so ascertained shall be deemed established, and the trial shall be conducted on the controverted facts accordingly. (Sec. 4, Rule 35) The test is whether or not the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the finding that, as a matter of law, there is no defense to the action or claim clearly meritorious. (Estrada v. Consolacion, G.R. No. L-40948, 1976) A partial summary judgment is an interlocutory order, because it does not completely and finally dispose of a litigation. (GSIS v. PH Village Hotel, G.R. No. 150922, 2004). Page 159 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 d. Affidavits And Attachments Form and Other Requisites of Affidavits The requisites of the supporting and opposing affidavits are: 1. It should be based on personal knowledge; 2. It shall set forth facts as would be admissible in evidence; 3. It must show affirmatively that the affiant is competent to testify to the matters stated therein; and 4. Certified true copies of all papers or parts referred in the affidavit be attached there to and served therewith. Bases of Summary Judgment a. Affidavits supporting the motion (Rule 35, Sec. 5); b. Depositions of the adverse party or a third party (Rule 23); c. Admissions of the adverse party (Rule 26); or d. Answers to interrogatories under (Rule 25). All the above must show that: 1. There is no genuine issue as to any material fact, EXCEPT damages which must always be proved; and 2. The movant is entitled to a judgment as a matter of law. (see Sec. 3, Rule 35). Even if the answer does tender an issue, and therefore a judgment on the pleadings is not proper, a summary judgment may still be rendered if the issues tendered are not genuine, are sham, fictitious, contrived, set up in bad faith, and patently unsubstantial. (Vergara v. Suelto, G.R. No. L-74766, 1987). Affidavits in Bad Faith Should it appear that the affidavits are: a. Presented in bad faith; or b. Solely for the purpose of delay, The court shall order the offending party or counsel to: a. Pay to the other party the amount of reasonable expenses, which the filing of the affidavits caused him to incur, including attorney’s fees; or REMEDIAL LAW b. The court may, after hearing, further adjudge the offending party or counsel guilty of contempt. (Sec. 6, Rule 35) 5. DISTINGUISH: JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENTS JUDGMENT ON THE PLEADINGS There is an absence of a factual issue in the case because the answer tenders no issue at all or there is an admission of material allegations. Solely based on the pleadings. Available only to a claiming party like a plaintiff or a counterclaimant. On the merits Can only be initiated when an answer has already been filed. SUMMARY JUDGMENT There is an issue, but the same is not a genuine issue. Controversy is only as to the amount of damages but not as to any material fact. Based on the pleadings, depositions, admissions, and affidavits. Available to both plaintiff and defendant. May be interlocutory, if partial, or on the merits. If filed by the PLAINTIFF, it must be filed at any time after an answer is served; If filed by DEFENDANT, it may be filed at any time even before there is an answer. 6. CONTENTS OF A JUDGMENT Parts of a Judgment The Constitution and the Rules of Court apparently delineate two main essential parts of a judgment, namely: 1. The body (ratio decidendi); and 2. The decretal or dispositive portion (fallo). (University of the Philippines v. Dizon, G.R. No. 171182, Aug. 23, 2012) Page 160 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 The general rule is that where there is a conflict between the fallo, or the dispositive part, and the body of the decision or order, the fallo prevails on the theory that the fallo is the final order and becomes the subject of execution, while the body of the decision merely contains the reasons or conclusions of the court ordering nothing. However, where one can clearly and unquestionably conclude from the body of the decision that there was a mistake in the dispositive portion, the body of the decision will prevail. (Cobarrubias v. People, G.R. No. 160610, Aug.14, 2009). In detail, the essential parts of a good decision consist of the following: 1. Statement of the case; 2. Statement of facts; 3. Issues or assignment of errors; 4. Court ruling, in which each issue is, as a rule, separately considered and resolved; and 5. Dispositive portion. The foregoing parts need not always be discussed in sequence. But they should all be present and plainly identifiable in the decision. (Velarde v. Social Justice Society, G.R. No. 159357, Apr. 28, 2004). According to Article VIII, Section 14 of the Constitution and Rule 36, Section 1 of the Rules of Court, a court must state the factual and legal basis for its decisions. Faithful adherence to this is a paramount component of due process and fair play. The losing party is entitled to know why he lost, so he may appeal to the higher court, if permitted, should he believe that the decision should be reversed. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is precisely prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal. (Philippine National Bank v. Heirs of Entapa, G.R. No. 215072, 2016) REMEDIAL LAW Test of Completeness of Dispositive Portion In a civil case as well as in a special civil action, the disposition should state whether the complaint or petition is granted or denied, the specific relief granted, and the costs. The following test of completeness may be applied: 1. The parties should know their rights and obligations; 2. They should know how to execute the decision under alternative contingencies; 3. There should be no need for further proceedings to dispose of the issues; 4. The case should be terminated by according the proper relief. The "proper relief" usually depends upon what the parties seek in their pleadings. It may declare their rights and duties, command the performance of positive prestations, or order them to abstain from specific acts. The disposition must also adjudicate costs. (Velarde v. Social Justice Society, G.R. No. 159357, Apr. 28, 2004). 7. RENDITION OF JUDGMENTS AND FINAL ORDERS Rendition of a Judgment Rendition of a judgment is the filing of the same with the clerk of court. (Ago v. Court of Appeals, G.R. No. L-17898, October 31, 1962) It is not the writing or signing of the judgment which constitutes rendition of the judgment. (Castro v. Malazo, A.M. No. 1237-CAR, 1980). This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule. (Balquidra v. Court of First Instance of Capiz, G.R. No. L-40490, October 28, 1977) . Even if the order or judgment has already been put into writing and signed, while it has not yet been delivered to the clerk for filing, it is still subject to amendment or change by the judge.|(Ago v. Court of Appeals, G.R. No. L-17898, 1962). Period to Render a Decision The court shall decide and serve copies of its decision to the parties within a period not exceeding 90 calendar days from the submission Page 161 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 of the case for resolution, with or without memoranda. (Sec. 1(c), Rule 30). A case is deemed submitted for resolution upon admission of all evidence and, if the court so requires, the filing of the parties' memoranda or conclusion of the oral arguments. (see Sec. 5(g), Rule 30). Judgment on the Merits Judgment is on the merits when it amounts to a legal declaration of the respective rights and duties of the parties based upon the disclosed facts. “Merits” refer to the real or substantial grounds of action or defense as a matter of substance in law as distinguished from technical or collateral grounds as a matter of form. Nonetheless, there could be a judgment on the merits even if there is no trial. (RIANO, 2019, p. 538). A judgment dismissing an action for want of jurisdiction (over the subject matter) cannot operate as res judicata on the merits. Judgment Sin Perjuicio A judgment sin perjuicio is traditionally understood to be a brief judgment containing only the dispositive portion, without prejudice to the making of a more extensive discussion of the findings of fact and law to support it. It is not a final decision and should be avoided and not be looked with favor. (Director of Lands v. Sanz, G.R. No. 21183, Aug. 31, 1923) Its current use may also refer to a dismissal of an action without prejudice, such as in Sec. 1 of Rule 17 and Sec. 5 of Rule 7. (RIANO, 2019, p. 541). Promulgation The process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel. (Lindo v. COMELEC, G.R. No. 95016, Feb. 11, 1991). Memorandum Decision A memorandum decision is one rendered by an appellate court and incorporates, by reference, the REMEDIAL LAW findings of fact and conclusions of law contained in the decision or order under review. (RIANO, 2019, p. 522). The memorandum decision, to be valid, cannot incorporate the findings of fact and the conclusions of law of the lower court only by remote reference, which is to say that the challenged decision is not easily and immediately available to the person reading the memorandum decision. For the incorporation by reference to be allowed, it must provide for direct access to the facts and the law being adopted, which must be contained in a statement attached to the said decision. (BrionesVasquez v. Court of Appeals, G.R. No. 144882, Feb. 4, 2005) As long as the memorandum decision (1) states the nature of the case; (2) summarizes the facts with references to the record; (3) contains a statement of the applicable laws and jurisprudence; and (4) contains the tribunal’s assessment and conclusions on the case, the constitutional requirement of a valid judgment will not be transgressed. (Oil and Natural Gas Commission v. Court of Appeals, G.R. No. 114323, Jul. 23, 1998). Although a memorandum decision is permitted under certain conditions, the appellate court cannot merely refer to the findings of fact and the conclusions of law of the lower court. The court must make full findings of fact and conclusion of law of its own. (Ong Chiu Kwan v. Court of Appeals, G.R. No. 113006, Nov. 23, 2000). 8. ENTRY OF JUDGMENT AND FINAL ORDER Entry of Judgment If no appeal or motion for new trial or reconsideration is filed within the reglementary period, the judgment or final order shall be entered by the Clerk in the Book of Entries of Judgment. The date of the finality of the judgment or final order shall be deemed to be the DATE OF ITS ENTRY. (Sec. 2, Rule 36) Page 162 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 Entry of judgment or final order is important for the reckoning of reglementary periods such as the 5year period for execution by motion or the 6-month period for a petition for relief (Regalado, Remedial Law Compendium, 9th Ed.) Finality of Judgment The term “final” when used to describe a judgment may be used in two senses: First, judgment is deemed final when it disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto. Second, the judgment is also deemed FINAL when it is no longer appealable and is already capable of being executed because the period of appeal has already lapsed. (RIANO, 2019, p. 530) Doctrine of Immutability of Judgments General Rule: A decision that has acquired finality becomes immutable and unalterable, and may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the land. Any act which violates this principle must immediately be struck down. (Sps. Valarao v. MSC and Co., G.R. No. 185331, Jun. 8, 2016). Exceptions: The exceptions to the immutability of final judgments are: a. Correction of clerical errors; b. Nunc pro tunc entries which cause no prejudice to any party; c. Void judgments; and d. Whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable. (Ocampo v. RPN9/Radio Philippines Network, Inc., G.R. No. 192947, 2015) The immutability of final judgments is not a hard and fast rule as the Court has the power and prerogative to relax the same in order to serve the demands of substantial justice considering: (a) matters of life, liberty, honor, or property; (b) the existence of special or compelling circumstances; (c) the merits of the case; (d) a cause not entirely attributable to the fault or negligence of the party REMEDIAL LAW favored by the suspension of the rules; (e) the lack of any showing that the review sought is merely frivolous and dilatory; and (f) that the other party will not be unjustly prejudiced thereby. (People v. Santiago y Magtuloy, G.R. No. 228819, Jul. 24, 2019). When a supervening event renders the execution of a judgment impossible or unjust, the interested party can petition the court to modify the judgment to harmonize it with justice and the facts. A supervening event is a fact which transpires or a new circumstance which develops after a judgment has become final and executory. This includes matters which the parties were unaware of prior to or during trial because they were not yet in existence at that time. (Dy v. Bibat-Palamos, G.R. No. 196200, Sep. 11, 2013). Judgment Nunc Pro Tunc The office of a judgment nunc pro tunc is to record some act of the court done at a former time which was not then carried into the record, and the power of a court to make such entries is restricted to placing upon the record evidence of judicial action which has been actually taken. (Briones-Vasquez v. Court of Appeals, G.R. No. 144882, Feb. 4, 2005). It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. (Id.) If the court has not rendered a judgment that it might or should have rendered, or if it has rendered an imperfect or improper judgment, it has no power to remedy these errors or omissions by ordering the entry nunc pro tunc of a proper judgment. (Id.) In all cases the exercise of the power to enter judgments nunc pro tunc presupposes the actual rendition of a judgment, and a mere right to a judgment will not furnish the basis for such an entry. (Id.) Void Judgments A void judgment is in legal effect no judgment, by which no rights are divested, from which no rights Page 163 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 can be obtained, which neither binds nor bars any one, and under which all acts performed and all claims flowing out of are void, and considering further, that the decision, for want of jurisdiction of the court, is not a decision in contemplation of law, and, hence, can never become executory, it follows that such a void judgment cannot constitute a bar to another case by reason of res judicata. (Tambunting, Jr. v. Spouses Sumabat, G.R. No. 144101, Sep. 16, 2005) The failure of petitioners to allege the key jurisdictional facts constitutive of unlawful detainer is fatal. Since the complaint did not satisfy the jurisdictional requirement of a valid cause for unlawful detainer, the MCTC corollarily failed to acquire jurisdiction over the case, and thus its judgment is a void judgment for lack of jurisdiction. It cannot be the source of any right neither can it be the creator of any obligation. (Diaz vs. Spouses Punzalan, G.R. No. 203075, Mar. 16, 2016) Res Judicata Effect of Final Judgments Res judicata is defined as a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. (Oropeza Marketing Corp. v. Allied Banking Corp., G.R. No. 129788, Dec. 3, 2002) Res judicata aims to accord stability to judgments. Without it, multiplicity of action would be the order of the day. Do away with the principle and there shall be no end to litigation. (San Pedro v. Binalay, G.R. 126207, Aug. 25, 2005) According to the doctrine of res judicata, an existing final judgment or decree rendered on the merits, and without fraud or collusion, by a court of competent jurisdiction, upon any matter within its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction on the points and matters in issue in the first suit. (Agustin v. Spouses Delos Santos, G.R. No. 168139, Jan. 20, 2009) Two Aspects of Res Judicata 1. Bar by Prior Judgment – the judgment or final order is a bar to the prosecution of a REMEDIAL LAW subsequent action based on the same claim or cause of action. (see Sec. 39(b), Rule 47) 2. Conclusiveness of Judgment – the judgment or final order precludes the re-litigation of particular issues or facts on a different demand or cause of action. (see Sec. 39(c), Rule 47) (San Pedro v. Binalay, G.R. 126207, Aug. 25, 2005) Res Judicata – Bar by Prior Judgment To be an absolute bar to the subsequent action, the following requisites must concur: 1. There must be a final judgment or order; 2. the court rendering it must have jurisdiction over the subject matter and the parties; 3. It must be a judgment or order on the merits; and 4. There must be between the two cases identity of parties, subject matter and causes of action. (Id.) In one case, the plaintiff filed a case for specific performance to deliver to him the title and necessarily the ownership of a parcel of land he allegedly purchased from the defendant, but subsequently, he filed a Motion to Withdraw Complaint resulting to its dismissal. Subsequently, the same plaintiff filed an accion reivindicatoria against the same defendant covering the same parcel of land. The Court held that the requirements of res judicata were met and thereby bars the same by prior judgment. The net effect of the two actions is to peremptorily secure title, possession and ownership of the same piece of land. (Id.) Res Judicata – Conclusiveness of Judgment The general rule precluding the relitigation of material facts or questions which were in issue and adjudicated in former action are commonly applied to all matters essentially connected with the subject matter of the litigation. Thus, it extends to questions necessarily involved in an issue, and necessarily adjudicated, or necessarily implied in the final judgment, although no specific finding may have been made in reference thereto, and although such matters were directly referred to in the pleadings and were not actually or formally Page 164 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 presented. (Smith Bell & Co. vs. CA, G.R. No. 56294, May 20, 1991) In one case, an accident involving two ships occurred, and two cases were filed by two different sets of cargo owners. The two cases were filed in different trial courts but both held that Ship 1 is negligent and that it must pay damages to the owners of the cargoes in Ship 2. The first case was appealed and reviewed by the CA and the SC, respectively, and both courts affirmed the ruling of the trial court. This case became final and executory. However, upon appeal in the CA of the second case, the latter reversed the trial court ruling and held that Ship 2 and not Ship 1 was negligent. Applying the rule of conclusiveness of judgment, the question of which vessel had been negligent in the collision had long been settled by this Court and could no longer be relitigated. (Id.) Stare Decisis The rule of stare decisis is entrenched in Article 8 of the Civil Code which states that judicial decisions applying and interpreting the laws shall form part of the legal system. (Castillo v. Sandiganbayan, G.R. No. 138231, February 21, 2002) The doctrine enjoins adherence to judicial precedents and requires courts in a country to follow the rule established in a decision of the Supreme Court thereof. (Umali v. Judicial and Bar Council, G.R. No. 228628, Jul. 25, 2017). The interpretation or construction of a law by courts constitutes a part of the law as of the date the statute is enacted. It is only when a prior ruling of this Court is overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith. (Ting v. Velez-Ting, G.R. No. 166562, Mar. 31, 2009). The doctrine of stare decisis is based upon the legal principle or rule involved and not upon the judgment which results therefrom. In this particular sense stare decisis differs from res judicata which is based upon the judgment. (Confederation of REMEDIAL LAW Sugar Producers Association, Inc. v. Department of Agrarian Reform, G.R. No. 169514, Mar. 30, 2007) Decisions of lower courts or other divisions of the same court are not binding on others. No grave abuse of discretion is committed when a judge sets aside an earlier ruling rendered by the previous judge in the same trial court branch for the same case, especially when, as in this case, a reversible error had been committed. (Gotesco Properties, Inc. v. International Exchange Bank, G.R. No. 212262, Aug. 26, 2020) Doctrine of Law of the Case Law of the case has been defined as the opinion delivered on a former appeal. It means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (Radio Communications of the Philippines v. CA, G.R. No. 139762, Apr. 26, 2006) The rationale behind this rule is to enable an appellate court to perform its duties satisfactorily and efficiently, which would be impossible if a question, once considered and decided by it, were to be litigated anew in the same case upon any and every subsequent appeal. (Spouses Sy v. Young, G.R. No. 169214, June 19, 2013) This principle finds application in cases where an appellate court passes on a question and remands the case to the lower court for further proceedings. (RIANO, 2019, p. 539) In one case, the petitioner filed an injunction against the private respondent to open the gates in an alley over which an easement exists. The RTC, in a summary judgment, ruled in favor of petitioner, upholding the existence of the easement. The CA reversed the RTC, holding that the case should not have been summarily adjudged. The SC then reversed the CA. In so ruling, the SC held that in another case decided by the CA (CA-GR No. 13421), the latter denied the Page 165 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW private respondent’s petition to cancel the annotation of the easement in his title. The SC ruled that CA-GR No. 13421 is the law of the case because clearly, it was brought to determine the rights of the parties regarding the easement, which is the subject of the controversy in this case, although as a petition for "cancellation of annotation," it may have suggested a different cause of action. (Solid Manila Corp. v. Bio Hong Trading Co., Inc., G.R. No. 90596, Apr. 8, 1991). Res Judicata v. Law of the Case RES JUDICATA 2. The judgment for or against one of them will not necessarily affect the other. (Fernandez v. Sta. Maria, G.R. No. 160730, 2004) It is NOT proper in actions against solidary debtors. (Id.) Where a common cause of action exists against the defendants, as in actions against solidary debtors, a several judgment is not proper. (De Leon v. Court of Appeals, G.R. No. 138884, June 6, 2002) LAW OF THE CASE Involves the Involves the preclusion to the controlling legal rule subsequent action irrevocably involving the same established on a parties and same former appeal which cause of action OR shall govern the the finality of the parties in the same issues or facts settled case. in the case. Applies to a Applies only to the subsequent case. same case. Relates to issues of Relates to questions fact and law. of law (Spouses Sy v. Young, G.R. No. 169214, Jun. 19, 2013). Several Judgments It is a judgment rendered by a court, when proper, against one or more defendants and NOT against all of them leaving the action to proceed against the others. (Sec. 4, Rule 36). Judgment may be given for or against one or more of the several plaintiffs or one or more of the several defendants. When justice so requires, the court may require such parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations. (Sec. 3, Rule 36). Several judgment is proper where: 1. The liability of each party is clearly separable and distinct from his co-parties such that the claims against each of them could have been the subject of separate suits, and Judgment for or against one or more of several parties judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations. (Rule 36, Sec. 3) Separate Judgment Judgment rendered to dispose of one of the several claims for relief presented in an action. Such judgment terminates the claim, leaving the action to proceed as to the remaining claims. (Sec. 5, Rule 36). When Can Court Render Separate Judgment The court may render a separate judgment when the following are present: 1. There is more than one claim for relief presented in the action; and 2. There is a determination of the issues material to a particular claim and all counterclaims arising out of the transaction, or occurrence which is the subject matter of the claim; (Id.) The court may render a separate judgment at any stage of the trial. (Id.) In case of a separate judgment, the court may stay its enforcement until rendition of the subsequent judgment/s. The court may likewise prescribe conditions to secure the benefit thereof to the party in whose favor the judgment is rendered. (Id.) Page 166 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW Judgment against Entity without Juridical Personality When judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if known. (Sec. 6, Rule 36). R. POST-JUDGMENT REMEDIES 1. MOTION FOR NEW TRIAL OR RECONSIDERATION Requirements MOTION FOR NEW TRIAL MOTION FOR RECONSIDERATION 1. Must be in writing; 2. Must be supported by evidence: a. If ground is Fraud, Accident, Mistake, or Excusable Negligence (FAME): i. Affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action; b. If ground is newly-discovered evidence (NDE): i. Affidavit of new witnesses; and ii. Duly authenticated documents to be introduced. 3. Written notice served to adverse party (Sec. 2, Rule 37) 1. Must be in writing; 2. Must point out specifically the conclusion/s of judgment or final order being questioned; 3. Grounds: a. Excessive damages b. Insufficient evidence (factual ground) c. Contrary to law (legal ground) (Rule 37, Sec. 1) 4. Specific assignment of the findings that are challenged with express reference to testimonial or documentary evidence or to provisions of law; 5. Written notice served to adverse party (Sec. 2, Rule 37) Affidavit of Merit One which recites the nature and character of FAME on which the motion for new trial is based. It must state the movant’s good and substantial cause of action or defense and the evidence he/she intends to present if the motion is granted which evidence should be such as to warrant reasonable belief that the result of the case would probably be otherwise. (Nuguid & Nuguid v. Cariño, G.R. No. L-12379, 1958). The allegations contained in an affidavit of merit required to be attached to a motion for a new trial need not be embodied in a separate document but may be incorporated in the petition itself. (Capuz vs. CA, G.R. No. 112795, 1994) Effect of Motion for New Trial or Reconsideration and Notice Thereof It suspends or tolls the running of the reglementary period to appeal. (Sec. 2, Rule 40; Sec. 3, Rule 41). Pro forma Motion (Sec. 2, Rule 37) A pro forma motion is a motion that does NOT comply with Rule 37, i.e., that the motion must: a. Point out specifically the findings or conclusions of the judgment as are contrary to law; b. Fails to make express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions; c. Merely intended to delay the proceedings; or Page 167 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 d. There is no affidavit of merit. (Marikina Valley Development Corp. v. Flojo, G.R. No. 110801, 1995). A pro forma motion will not stay or suspend the reglementary period. (Id.). A motion for reconsideration is NOT pro forma just because it reiterated the arguments earlier passed upon and rejected by the appellate court. This is because a movant may raise the same arguments precisely to convince the court that its ruling was erroneous. (Security Bank v. Cuenca, GR No. 151914, 2002) REMEDIAL LAW Example: preventing a witness from testifying or collusive suppression by plaintiff’s counsel of a material evidence vital to plaintiff’s cause of action. Intrinsic Fraud Intrinsic fraud takes the form of acts of a party in a litigation during the trial which did not affect the presentation of the case but did prevent a fair and just determination of the case. (Libudan vs. Gil, G.R. No. L-21163, 1972) Example: use of forged instruments or perjured testimony during trial. Moreover, the rule (that a motion is pro forma if it only repeats the arguments in the previous pleadings) will NOT apply if said arguments were not squarely passed upon and answered in the decision sought to be reconsidered. (Ong Yong v. Tiu, GR No. 144476, 2003) For the next three grounds – accident, mistake, and excusable negligence, it must be something which ordinary prudence could not have guarded against and by reason of which the party applying has probably been impaired in his rights. (De Leon, Appellate Remedies, 2013, p.21) Where the circumstances of a case do not show an intent on the part of the pleader to merely delay the proceedings, and his motion reveals a bona fide effort to present additional matters or to reiterate his arguments in a different light, the courts should be slow to declare the same outright as pro forma. (Philippine National Bank v. Paneda, G.R. No. 149236, 2007). Accident It is an event that takes place without one’s reasonable foresight or expectation. (McEntee v. Manotok, G.R. No. L-14968, 1961) a. Grounds MOTION FOR NEW TRIAL Grounds for Motion for New Trial a. Extrinsic FAME – that which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights b. Newly-discovered evidence (NDE) – that which could not, with reasonable diligence, have been discovered and produced at the trial, and which, if presented, would probably alter the result. (Sec. 1, Rule 37) Extrinsic Fraud Extrinsic or collateral fraud connotes any fraudulent scheme executed by a prevailing litigant outside the trial of a case against the defeated party, or his agents, attorneys, or witnesses whereby said defeated party is prevented from presenting fully and fairly his side of the case. (Libudan vs. Gil, G.R. No. L-21163, 1972) Mistake The general rule is that only mistakes of fact (as opposed to mistake of law) may be a ground for new trial. Thus, the petitioner’s claim of having committed an honest mistake in not filing an answer to respondent’s petition for prohibition and declaratory relief because of its belief that the RTC did not acquire jurisdiction over it was held to be a mistake of law which cannot be a ground for new trial. (Viking Industrial Corporation v. CA GR No. 143794, 2004) Excusable Negligence The test of excusable negligence is whether a party has acted with ordinary prudence while transacting an important business. (Philippine Phosphate Fertilizer Corporation v. Commissioner of Internal Revenue, 2005). General Rule: Negligence and mistakes of counsel are binding on the client. (Lagua v. Court of Appeals, G.R. No. 173390, 2012). Exception: Such negligence of a counsel may be a ground for new trial if it is so patent that the party is prejudiced and prevented from fairly presenting his/her case: Page 168 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 1. Where the gross negligence of counsel deprives the client of due process of law; 2. When the application of the rule will result in the deprivation of client’s right and the party was prejudiced; and 3. Where the interest of justice so requires. (Redena vs. CA, G.R. No. 146611, 2007) For a claim of counsel’s negligence to prosper, the clear abandonment of the client’s cause must be shown. (Multi-trans Agency v. Oriental Assurance G.R. No. 180817, 2009) Newly-Discovered Evidence Requisites: 1. The evidence was discovered after trial; 2. Such evidence could not have been discovered and produced at trial despite the exercise of reasonable diligence; 3. It is material, not merely cumulative, corroborative or impeaching; and 4. It is of such weight that, if admitted, will probably change the judgment. (Tumang v. CA, G.R. Nos. 82346-47, 1989) Forgotten Evidence As distinguished from newly-discovered evidence, forgotten evidence may be seen to refer to evidence already in existence or available before or during trial, which was known to and obtainable by the party offering it, and which could have been presented and offered in a seasonable manner were it not for the oversight or forgetfulness of such party or his counsel. (Tumang v. Court of Appeals, G.R. No. 82072, 1989). The question of whether evidence is newly discovered has two aspects: a temporal one (where was the evidence discovered), and a predictive one (when it should or could have been discovered). (Dinglasan v. CA, G.R. No. 145420, 2006) If the documents belatedly submitted are public records, they cannot be considered as “newly discovered” since these are readily available and accessible and could be secured during trial with the use of reasonable diligence. (Heirs of Emilio Santioque v. Heirs of Emilio Calma, GR No. 160832, 2006) Newly-discovered evidence need not be newlycreated evidence. (Tumang v. CA, G.R. Nos. 82346-47, 1989) REMEDIAL LAW Motion for New Trial in the Court of Appeals Rule 53 (Motion for New Trial in the Court of Appeals) has its own rules: 1. It may be filed anytime after an appeal has been perfected and before the Court of Appeals loses jurisdiction over the case; 2. The only ground is newly discovered evidence. (Sec. 1, Rule 53). Motion for New Trial in the Supreme Court As a general rule, the judgment of the Court of Appeals is conclusive as to the facts, and cannot be reviewed by the Supreme Court Accordingly, in an appeal by certiorari to the Supreme Court, as the latter has no jurisdiction to entertain a motion for new trial on the ground of newly-discovered evidence, for only questions of fact are involved therein. Nonetheless, the rule now appears to have been relaxed, if not abandoned, in subsequent cases, as the Court, opting to brush aside technicalities, granted new trials to the convicted accused concerned on the basis of proposed testimonies or affidavits of persons which the Court considered as newly discovered and probably sufficient evidence to reverse the judgment of conviction. (Cuenca v. Court of Appeals, G.R. No. 109870, 1995) If an accused has been the victim of an unfair and partial trial, the Supreme Court will not hesitate to order a new trial in the interest of justice. (Martinez v. Gironella, G.R. No. L-37635, Jul. 22, 1975) MOTION FOR RECONSIDERATION Grounds for a Motion for Reconsideration a. The damages awarded are excessive; b. The evidence is insufficient to justify the decision or final order (factual question); or c. The decision or final order is contrary to law (legal question) (Sec. 1, Rule 37) The purpose of a motion for reconsideration is for the moving party to point to purported errors in the assailed judgment or final order which that party views as unsupported by law or evidence. It grants an opportunity for the court to correct any actual or perceived error attributed to it by reexamination of the legal and factual circumstances of the case. (Gotesco Properties, Inc. v. International Exchange Bank, G.R. No. 212262, 2020) Page 169 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW c. Denial Of The Motion; Effect A winning litigant may also move for reconsideration of a part or parts of a decision or final order. (Balanoba v. Madriaga, GR No. 160109, 2005) Motions for Extension Of Time Motions for extension of time to file a motion for reconsideration may be filed only in connection with cases pending before the Supreme Court, which may in its sound discretion either grant or deny the extension requested. (Habaluyas Enterprises v Japson, GR No. 70895, 1986; see also Sec. 2, Rule 40; Sec. 3, Rule 41) The Habaluyas ruling applies even if the motion is filed before the expiration of the reglementary period. (Fernandez v. CA, GR No. 131094, 2005) b. When To File MOTION FOR NEW TRIAL MOTION FOR RECONSIDERATION WHEN TO FILE (Rule 37, Sec. 1; Rule 40, Sec. 2; Rule 41, Sec. 3) Within the period for Same as Motion for taking an appeal. This New Trial is within 15 days if a notice of appeal is to be filed or 30 days if a record on appeal is required after receipt of notice to the appellant of the judgment or final order appealed from. WHERE TO FILE (Rule 37, Sec. 1) With the court which Same as Motion for rendered the New Trial. questioned judgment or final order. MOTION FOR NEW TRIAL MOTION FOR RECONSIDERATION If denied, not Same as Motion for appealable; remedy is New Trial to appeal from the judgment or final order. (Rule 37, Sec. 9) If the motion is denied, the movant has a “fresh period” of 15 days from receipt or notice of the order denying or dismissing the motion for new trial from which to file a notice of appeal. (Neypes v. CA, G.R. No. 141524, Sep. 14, 2005) Exception: appeal denial via R65 certiorari on grave abuse of discretion amounting to lack or excess of jurisdiction d. Grant Of The Motion; Effect MOTION FOR NEW TRIAL MOTION FOR RECONSIDERATION GRANT OF MOTION (Rule 37, Sec. 6) If a new trial is granted, the trial court will set aside the judgment or final order. The case stands for trial de novo and will be tried anew. The recorded evidence taken upon the former trial, insofar as the same is material and competent to establish the issues, shall be used at the new trial If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly. Page 170 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 without same. retaking REMEDIAL LAW 2. APPEALS the a. Judgments And Final Orders Subject To Appeal PARTIAL GRANT OF MOTION (Rule 37, Sec. 7) A partial new trial is allowed where less than all of the issues are ordered retried. The court may either enter a judgment or final order as to the rest or stay the enforcement of such judgment or final order until after new trial. A partial reconsideration is allowed when the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it. The order may grant a reconsideration as to such issues if severable without interfering with the final judgment or order upon the rest. e. Remedy When Motion Is Denied, Fresh 15-Day Period A party shall have a FRESH PERIOD of 15 days to file a notice of appeal to the RTC from receipt of the order denying a motion for new trial or motion for reconsideration. (Neypes v. CA, G.R. No. 141524, 2005) This rule shall apply to Rules 40, 41, 42, 43 and 45 and in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure. (Yu vs. Tatad, G.R. No. 170979, 2011) Note: 1. Rule 40 – Appeals from MTC to RTC 2. Rule 41 – Appeals from RTC to CA from decisions rendered by the RTC in the exercise of its original jurisdiction 3. Rule 42 – Petitions for review from RTC to CA from decisions of the RTC in the exercise of its appellate jurisdiction 4. Rule 43 – Appeals from Quasi-Judicial Agencies to CA 5. Rule 45 – Appeals by petition for review on certiorari to SC Nature of an Appeal The right to appeal is neither a natural right nor a part of due process. It is merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of law. Thus, one who seeks to avail of the right to appeal must comply with the requirements of the Rules. Failure to do so often leads to the loss of the right to appeal. (Neypes v. CA, G.R. No. 141524, 2005) An appeal may be taken only from judgments or final orders that completely dispose of the case. (Sec. 1, Rule 37; Sec. 2, Rule 40; Sec. 3, Rule 41) Final Order vs. Interlocutory Order A final judgment or order is one that finally disposes of a case, leaving nothing more for the court to do with respect to it. It is an adjudication on the merits which, considering the evidence presented at the trial, declares categorically what the rights and obligations of the parties are; or it may be an order or judgment that dismisses an action. (Neypes v. CA, G.R. No. 141524, 2005) An interlocutory order is one which does not in itself definitely settle or conclude any of the rights of the parties to the action. (Dais v. Garduño, G.R. No. 25523, 1926) An interlocutory order is NOT appealable until after a judgment on the merits has been rendered. (Sec. 1(b), Rule 41). Certiorari under Rule 65 may be availed of to contest an interlocutory order to correct a patent abuse of discretion by the lower Court in issuing the same. (Villalon, Jr. v. IAC, G.R. No. 73751, 1986) Appeals in Criminal Cases Where the RTC imposes the death penalty, the CA automatically reviews the judgment (Sec. 3[d], Rule 122). Page 171 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 If the CA finds that the death penalty shall be imposed, it shall not render judgment but certify and elevate the case to the SC for review. (Sec. 13[a], Rule 124) b. Matters Not Appealable Please see the discussions under Rule 41. c. Remedy Against Judgments And Orders Which Are Not Appealable In those instances where the judgment or final order is not appealable, the aggrieved party may file a special civil action for certiorari under Rule 65. (Id.) d. Modes Of Appeal i. Ordinary Appeal An appeal where judgment was rendered by the court in the exercise of its original jurisdiction. It is also known as an appeal by writ of error. (RIANO, 2019, p. 589). RULE 40 – appeal from MTC to RTC RULE 41 – appeal from RTC from its decisions rendered in the exercise of its original jurisdiction REMEDIAL LAW e. Issues To Be Raised On Appeal NOTE: The issues that may be raised on appeal depend on the kind of appeal filed. 1) Questions of FACT – exists when the doubt or difference arises as to the truth or the falsehood of alleged facts; or when the query necessarily invites calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other and to the whole and the probabilities of the situation (Sesbreno vs. CA, G.R. No. 84096, 1995); (Cirtek Employees Labor Union vs. Cirtek Electronics, Inc., G.R. No. 190515, 2011); 2) Questions of LAW – exists when the doubt or difference arises as to what the applicable law is on certain state of facts (Sesbreno vs. CA, G.R. No. 84096, 1995); (Cirtek Employees Labor Union vs. Cirtek Electronics, Inc., G.R. No. 190515, 2011); 3) Mixed Questions of FACT and LAW MODE OF APPEAL and ISSUES TO BE RAISED Questions of Fact, Law, or Both ii. Petition For Review (Rule 42) An appeal where judgment was rendered by the court in the exercise of its appellate jurisdiction. (Id.) iii. Petition For Review On Certiorari (Rule 45) An appeal from a judgment or final order of the Regional Trial Court in the exercise of its original jurisdiction directly to the Supreme Court on pure questions of law. (Id.) Note: It also pertains to an appeal from the judgment, final order or resolutions of the Court of Appeals, Sandiganbayan, Court of Tax Appeals en banc. (Sec. 1, Rule 45). 1) Rule 40 - Appeal from MTC to RTC  Notice of Appeal filed with the MTC and payment of fees 2) Rule 41 - Appeal from RTC (exercising original jurisdiction) to CA  Notice of Appeal filed with the RTC and payment of fees 3) Rule 42 - Appeal from RTC (exercising appellate jurisdiction) to CA  Petition for Review filed with RTC with payment of fees 4) Rule 43 - Appeal from QJA to CA  Petition for Review filed with CA with payment of fees Page 172 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 5) Rule 45 - Appeal from CA, CTA en banc, and Sandiganbayan to SC  Petition for Review on Certiorari filed with the SC with payment of fees Generally, Question of Law Only 1) Rule 45 - Appeal from RTC to SC.  Petition for Review on Certiorari filed with the SC with payment of fees Exceptions (may raise questions of fact): Based on SC Circulars: 1. Writ of Amparo 2. Writ of Habeas Data 3. Writ of Kalikasan Exceptions Based on Jurisprudence: 1. When the factual findings of the Court of Appeals and the trial court are contradictory; 2. When the conclusion is a finding grounded entirely on speculation, surmises, or conjectures; 3. When the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd, or impossible; REMEDIAL LAW 4. When there is a grave abuse of discretion in the appreciation of facts; 5. When the appellate court, in making its findings, went beyond the issues of the case and such findings are contrary to the admissions of both appellant and appellee; 6. When the judgment of the Court of Appeals is premised on a misapprehension of facts; 7. When the Court of Appeals failed to notice certain relevant facts which, if properly considered, would justify a different conclusion; 8. When the findings of fact are themselves conflicting; 9. When the findings of fact are conclusions without citation of the specific evidence on which they are based; and 10. When the findings of fact of the Court of Appeals are premised on the absence of evidence but the evidence on record contradicts such findings. (Local Superior vs. Jody King, G.R. No. 141715, 2005) Page 173 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW f. Period Of Appeal REMEDY Rule 37 MR/MNT - Rule 38 Petition for Relief from Judgment Rule 40 Appeal from MTC to RTC - Rule 41 Appeal from RTC (original) to CA - Rule 42 Petition for Review from RTC (appellate) to CA - Rule 43 Appeals from quasi-judicial agencies to CA - Rule 45 Petition for review on certiorari from RTC, CA, CTA En Banc to the SC - Rule 47 Judgments Annulment of - PERIOD Within 15 days (if notice of appeal) or 30 days (if record on appeal) from notice of final judgment or final order (Sec. 1, Rule 37 in relation to Sec. 2, Rule 40; Sec. 3, Rule 41). No extension allowed (Id.) 2nd MR not allowed (Sec. 5, Rule 37) Within 60 days after knowledge but not more than 6 months after entry of judgment Non-extendible (Sec. 3, Rule 38). Within 15 days (if notice of appeal) or 30 days (if record on appeal) from notice of final judgment or final order (Sec. 2, Rule 40). MR/MNT will toll the period to file appeal; fresh period is given from receipt of order of denial of MNT/MR (Neypes v. CA, G.R. No. 141524, 2005). Non-extendible (Sec. 2, Rule 40) Full payment of appeal fees within the period to appeal (Sec. 5, Rule 40) Within 15 days (if notice of appeal)) or 30 days (if record on appeal) from notice of final judgment or final order (Sec. 3, Rule 41). MR/MNT will toll the period to file appeal; fresh period is given from receipt of order of denial of MNT/MR (Neypes v. CA, G.R. No. 141524, 2005). Non-extendible (Sec. 3, Rule 41). Full payment of appeal fees within the period to appeal (Sec. 4, Rule 41). Within 15 days from notice of decision (Sec. 1, Rule 42). Extendible for 15 days upon proper motion and payment of the full amount of docket and other lawful fees and deposit for costs before the expiration of the reglementary period (Id.). Extendible again up to 15 days but only based on the most compelling reasons (Id.). 15 days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner's motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo (Sec. 4, Rule 43). Only one (1) motion for reconsideration shall be allowed (Id.). Extendible again up to 15 days but only based on the most compelling reasons (Id.). Within 15 days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration (Sec. 2, Rule 45). Extendible for 30 days on justifiable reasons upon motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period (Id.). Extrinsic fraud: 4 years from discovery (Sec. 3, Rule 47). Lack of jurisdiction: before it is barred by laches or estoppel (Id.). Page 174 of 711 ATENEO CENTRAL BAR OPERATIONS 2020 REMEDIAL LAW RULE 64 Review of Judgments and Final Orders or Resolutions of COMELEC and the COA - Rule 65 – Certiorari, Prohibition, Mandamus - Within 30 days from notice of the judgment or final order or resolution sought to be reviewed. (Sec. 3, Rule 64). MR or MNT, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed (no fresh period) (Lokin, Jr. v. Commission on Elections, G.R. No. 193808, Jun. 26, 2012). If the motion is denied, the aggrieved party may file the petition within the remaining period, which shall not be less than 5 days, reckoned from notice of denial. (Sec. 3, Rule 64). Within 60 days from notice of the judgment, order or resolution (Sec. 4, Rule 65). MR/MNT will trigger fresh period of 60 days from receipt of order of denial (Id.). g. Perfection Of Appeal with each part susceptible of being finally determined and terminated independently of the other parts. (Id.) Rules 40 And 41 Rule 42 1. If by notice of appeal: - Appeal is deemed perfected as to the party appealing upon the filing of the notice of appeal and full payment of appeal fees in due time. 2. If by record on appeal: - Appeal is deemed perfected as to the party appealing upon the approval of the record on appeal filed in due time. (Sec. 4, Rule 40; Sec. 9, Rule 41) NOTICE OF APPEAL An appeal by notice of appeal is the elevation of the original records to the appellate court. RECORD ON APPEAL The record on appeal enables the trial court to continue with the rest of the case because the original records remain with the trial court even as it affords the appellate court the full opportunity to review and decide the appealed matter. (De Leon, Appellate Remedies, 2013, p. 53, citing Lebin vs. Mirasol, G.R. No. 164255, 2011) The ostensible reason for requiring a record on appeal instead of only a notice of appeal is the multi-part nature of nearly all special proceedings, How to Appeal Appeal is perfected as to petitioner upon timely: 1. FILING of a notice of appeal within 15 or 30 days from notice of judgment or final order with the court that rendered it, and SERVE upon the adverse party; and 2. PAYMENT of the full amount of the appellate court docket and other legal fees to the clerk of the court which rendered the judgment or final order. (BUT, failure to pay warrants only discretion to dismiss the appeal.) (Sec. 3, Rule 40) The notice of appeal should indicate: 1. Parties to the appeal. 2. Date of judgment or final order or part thereof appealed from. 3. Court to which the appeal is being taken; and Material dates showing the timeliness of the appeal (i.e., when the judgment or final order was received, when the motion for reconsideration or new trial was filed, and when denial of the motion for reconsideration or motion for new trial was received) (i.e., Material Data Rule). (Id.). Participation of the Solicitor General During Appeal According to Book IV, Title III, Chapter 12, Section 35(1) of the Administrative Code of 1987, the Office of the Solicitor General shall “represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Page 175 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Court and Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party.” The Solicitor General is the sole representative of the People of the Philippines in appeals before the CA and the SC. Failure to have a copy of a petition served on the People of the Philippines, through the OSG, is a sufficient ground for the dismissal of the petition as provided in Section 3, Rule 42 of the Rules of Court. (People v. Duca, G.R. No. 171175, 2009) If there is a dismissal of a criminal case by the trial court or if there is an acquittal of the accused, it is only the OSG that can bring an appeal on the criminal aspect representing the People, the State being the real party in interest in the criminal case. (People v. Piccio, et al., G.R. No. 193681, 2014) h. Appeal From Judgments Or Final Orders Of The Mtc (Rule 40) Where to Appeal The appeal may be taken to the RTC exercising jurisdiction over the area to which the former pertains. (Rule 40, Sec. 1) The title of the case shall remain as it was in the court of origin, but the party appealing shall be further referred to as the appellant and the adverse party, the appellee. After an appeal to the RTC has been perfected, the MTC loses jurisdiction over the case and any motion for the execution of the judgment should be filed with the RTC (Rule 40, Section 1), subject to the MTC’s residual jurisdiction under Rule 41, Section 9 in relation to Rule 40, Section 4. Mode of Appeal The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. (Sec. 3, Rule 40) The notice of appeal does not require the approval of the court. The function of the notice of appeal is merely to notify the trial court that the appellant was availing of the right to appeal, and not to seek the court’s permission that he be allowed to pose REMEDIAL LAW an appeal. (Crisologo v. Daray A.M. No. RTJ-072036, 2006) Record on Appeal A record of appeal is required only in: a. Certain kinds of special proceedings; or b. Other cases of multiple or separate appeals. (Sec. 3, Rule 40) The record of appeal should: 1. State the full names of the parties to the proceedings in its caption 2. Include: i. Judgment or final order from which the appeal is taken. ii. In chronological order, copies of such pleadings, petitions, motions, and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issue involved; and iii. Such data as will show that the appeal was perfected on time. 3. Contain a subject index, if it exceeds 20 pages. (Sec. 3, Rule 40 in relation to Sec. 6, Rule 41). Copies of the notice of appeal and the record on appeal (when required) shall be served on the adverse party. Material Data Rule The material dates required to be stated in the petition are the following: 1. The date of receipt of the judgment or final order or resolution subject of the petition; 2. The date of filing of a motion for new trial or reconsideration, if any; and 3. The date of receipt of the notice of the denial of the motion. (Castilex Industrial Corp. v. Vasquez, Jr., G.R. No. 132266, 1999). The whole purpose of the statutory and reglementary requirements on material dates is to established the timeliness of the appeal or petition for review, since otherwise, the appealed decision would already be final and executory and the appellate or reviewing court would be rendered without jurisdiction, where there exist no valid grounds to seek relief from final judgment. (Canturna v. Court of Appeals, G.R. No. L-40934, [Apr. 30, 1976) Page 176 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Appellate Court Docket and Other Lawful Fees Within the period for taking an appeal, the appellant shall pay to the Clerk of the Court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. (Sec. 5, Rule 40) Proof of payment shall be transmitted to appellate court together with the original record or the record on appeal, as the case may be. (Id.) Note: It is the responsibility of the MTC clerk of court to attach appellant’s proof of payment to the original record. Whatever omission or negligence on the part of such clerk of court should not adversely affect the appellant. (De Leon, Appellate Remedies, 2013, p. 42) Payment of docket fees within the period to appeal is MANDATORY for the perfection of an appeal. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed becomes final and executory. (Alfonso vs. Andres, G.R. 139611, 2002). The payment of the appellate docket fee is not a mere technicality of law or procedure but an essential requirement for the perfection of an appeal (Enriquez vs. Enriquez, G.R. No. 139303, 2005), and without which, the decision or final order appealed from would become final and executory, as if no appeal was filed at all. (Sps. Manalili vs. Sps. De Leon, G.R. No. 140858, 2001) Note: While, in appealed cases, the full payment of the appellate docket fees within the prescribed period is mandatory, even jurisdictional, the decision to dismiss the case is only discretionary as opposed to automatic dismissal of the appeal. (De Leon, Appellate Remedies, 2013, p. 41) This is true under Rule 40 (Badillo v. Tayag, G.R. No. 143976, 2003) General Rule: The court will dismiss the appeal when there is no full payment of appellate docket fees within the prescribed period to appeal. REMEDIAL LAW Exceptions: The following instances warrant a relaxation of the application of rules on payment of docket fees: a. Most persuasive and weighty reasons; b. To relieve a litigant from an injustice not commensurate with his/her failure to comply with the prescribed procedure; c. Good faith of the defaulting party by immediately paying within a reasonable time from the time of default; d. The existence of special or compelling circumstances; e. The merits of the case; f. A cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; g. A lack of any showing that the review sought is merely frivolous and dilatory; h. The other party will not be unjustly prejudiced thereby; i. Fraud, accident, mistake or excusable negligence without appellant’s fault; j. Peculiar legal and equitable circumstances attendant to each case; k. In the name of substantial justice and fair play.; l. Importance of the issues involved; and m. Exercise of sound discretion by the judge guided by all the attendant circumstances. (Villena v. Rupisan, GR No. 167620, 2007) Considerations in Invoking Liberality The party invoking liberality should adequately explain his failure to abide by the rules. (Navarro vs. Metrobank, G.R. No. 138031, 2004) Anyone seeking an exemption has the burden of proving that exceptionally meritorious instances exist which warrant departure from the Rule (RP vs. CA, G.R. No. 129846, 2000). Duty of the Clerk of Court Within fifteen (15) days from the perfection of the appeal, the clerk of court or the branch clerk of court of the lower court shall transmit the original record on appeal, together with the transcripts and exhibits, which he/she shall certify as complete, to the proper RTC. A copy of his/her letter of transmittal of the records shall be furnished the parties. (Rule 40, Sec. 6) Page 177 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Note: Still, it must be emphasized that the reckoning point for the RTC to acquire jurisdiction over the appeal is NOT the receipt of the letter of transmittal and of the notice of appealed case, but the timely filing of the notice of appeal in accordance with Sec. 9, Rule 41. (De Leon, Appellate Remedies, 2013, p. 44) Residual Jurisdiction of the Court Prior to the transmittal of the original record or record on appeal, the court which rendered judgement may: a. Issue orders for the protection and preservation of the rights of the parties, which do not involve any matter litigated by the appeal. b. Approve compromises; c. Permit appeals of indigent litigants; d. Order execution pending appeal in accordance with Sec. 2, Rule 39; and e. Allow withdrawal of the appeal. (Sec. 9, Rule 41). Procedure in the Regional Trial Court 1. Upon receipt of the complete record or the record on appeal, the clerk of court of the RTC shall notify the parties of such fact; 2. Within fifteen (15) days from notice, it shall be the duty of the appellant to submit a MEMORANDUM OF APPEAL to briefly discuss the errors imputed to the lower court, and a copy shall be furnished by him/her to the adverse party; 3. Within fifteen (15) days from receipt of the appellant’s memorandum, the appellee may file his/her MEMORANDUM OF APPEAL; and 4. Upon filing of the memorandum of the appellee, OR the expiration of the period to do so, the case shall be considered SUBMITTED FOR DECISION. (Sec. 7, Rule 40) REMEDIAL LAW Notice Requirement The notice to be sent to the parties cannot be downplayed as a mere formality, for it is such notice which sets in motion the appellate procedure before the RTC and the running of the prescriptive period within which the appellant must file his/her appeal memorandum. Moreover, the notice must be categorical enough in stating that the RTC has already received the records of the case. If there is no such notice or the notice is defective in that it does not contain a statement that the RTC is already in possession of the records of the case, the appellant stands to lose his/her right to seek a judicial review of his/her case. Thus, a notice to the effect that a case under appeal “is entered in the Docket Book of the RTC” was deemed insufficient to commence the appeal before the RTC and the running of the 15-day period within which the appellant must file his appeal memorandum. (De Leon, Appellate Remedies, 2013, p. 45) The RTC Can Decide Errors Not Assigned in the Appeal Memorandum The RTC presently decides all appeals from the MTC based on the entire record of the proceedings had in the court of origin and such memoranda or briefs as may be submitted by the parties or required by the RTC. As a consequence, the RTC, in exercising its appellate jurisdiction (i.e., in appeals from MTC to RTC), is not limited to errors assigned in the appeal memorandum. The RTC shall decide the case on the basis of the entire record of the proceedings in the court of origin and such memoranda as are filed. (Sec. 7(c), Rule 40). Thus, in Macaslang v. Zamora (G.R. No. 156375, 2011), it was held that the RTC, as an appellate court, could rule on the failure of the complaint to state a cause of action and the lack of demand to vacate even if not assigned in the appeal. (De Leon, Appellate Remedies, 2013, p. 49) Failure of the APELLANT to file a memorandum shall be a ground for the dismissal of the appeal. The requirement for the submission of appellant’s memorandum is a mandatory and compulsory rule. Non-compliance therewith authorizes the dismissal of the appeal. (Sec. 7(b), Rule 40). Appeal from Orders Dismissing Case Without Trial; Lack of Jurisdiction If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. (Sec. 8, Rule 40). Page 178 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 If the ground for dismissal in the MTC is lack of jurisdiction: A. If the RTC affirms the dismissal: a. It shall try the case on the merits as if the case was originally filed with it, if it has jurisdiction over the subject matter; or b. It shall not try the case if it has no jurisdiction over the subject matter. B. If the RTC reverses the dismissal, the case shall be remanded to the MTC for further proceedings. (Sec. 8, Rule 40). Appeal from Orders Dismissing Case With Trial; Lack of Jurisdiction If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the RTC on appeal, shall NOT dismiss the case if it has original jurisdiction thereof, BUT shall decide the case WITHOUT prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (Id.) Applicability of Rule 41 The other provisions of Rule 41 shall apply to appeals provided in this Rule. Thus, the inferior courts also exercise residual jurisdiction in the same manner provided under paragraph 5, Section 9 of Rule 41. (Rule 40, Sec. 9) i. Appeal From Judgments And Final Orders Of The RTC Three Modes of Appeal A. RULE 41 – Ordinary Appeal or Appeal by Writ of Error by Notice of Appeal from RTC, exercising original jurisdiction, to the CA. B. RULE 42 – Petition for Review from RTC, exercising appellate jurisdiction, to the CA. C. RULE 45 – Petition for Review on Certiorari or Appeal by Certiorari by Appeal to SC from decisions of the RTC in its original jurisdiction, only on questions of law (RIANO, 2019, p. 589; Five Star Marketing Corp v. Booc, G.R. No. 133331, 2007) APPEAL FROM THE COURTS (Rule 41) REGIONAL TRIAL Subject of Appeal As mentioned, an appeal may be taken only from judgments or final orders that completely dispose of the case. An interlocutory order is NOT appealable until after judgment on the merits has been rendered. (Sec. 1, Rule 37; Sec. 2, Rule 40; Sec. 3, Rule 41) Matters Not Appealable No appeal may be taken from: 1. An order denying a petition for relief or any similar motion seeking relief from judgment; 2. An interlocutory order; 3. An order disallowing or dismissing an appeal; 4. An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; 5. An order of execution; 6 A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims, and third party complaints, while the main case is ending, unless the court allows an appeal therefrom; and 7. An order dismissing an action without prejudice. (Section 1, Rule 41) In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. (Id.). Issues Cannot be Raised For the First Time on Appeal General Rule: Parties cannot raise issues for the first time on appeal. Exceptions: a. Grounds not assigned as errors but affecting jurisdiction over the subject matter; b. Matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law; c. Matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; Page 179 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 d. Matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; e. Matters not assigned as errors on appeal but closely related to an error assigned; and f. Matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent. (Spouses Devisfruto v. Greenfell, G.R. No. 227725, 2020) Modes of Appeal from RTC ORDINARY APPEAL (RULE 41) Appeal to the Court of Appeals in cases decided by the RTC in its original jurisdiction. PETITION APPEAL BY FOR REVIEW CERTIORARI (RULE 42) (RULE 45) Appeal to the Court of Appeals in cases decided by the RTC in the exercise of its appellate jurisdiction. Rule 41 vs. Rule 42 ORDINARY APPEAL (Rule 41) PETITION FOR REVIEW (Rule 42) Appeal is not a right Discretionary. but a statutory privilege; thus, appeal must be made strictly in accordance with the provision set by law. (Enriquez vs. Enriquez, G.R. No. 139303, 2005) All the records are No records are elevated from the court elevated unless the of origin. court decrees it. Notice and record on Filed with the Court of appeal if required are Appeals. filed with the court of origin; The case was decided The case was decided by the RTC pursuant to by the RTC pursuant to its original jurisdiction. its appellate jurisdiction (i.e., the case emanated from the MTC). Period to file is a Period to file is a matter of right but is matter of right and is NON-EXTENDIBLE. EXTENDIBLE. Appeal to the Supreme Court in all cases decided by the RTC where only questions of law are raised or involved Appeal to SC from the CA, Sandiganbaya n, CTA en banc, where questions of fact, law, or both are raised. By NOTICE OF APPEAL with the court which rendered the judgment or final order appealed from (i.e., RTC) and serving a copy thereof upon the adverse party. By PETITION FOR REVIEW filed with the Court of Appeals in accordance with Rule 42 and serving a copy thereof upon the adverse party. By PETITION FOR REVIEW ON CERTIORARI filed with the Supreme Court in accordance with Rule 45 and serving a copy thereof upon the adverse party. RECORD OF APPEAL shall be required only in: 1. Special proceedings; 2. Multiple or separate appeals where the law or the Page 180 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Rules require. so Questions of fact or mixed questions of fact and law Questions of fact, of law, or mixed questions of fact and law Question of law only from judgment or final order rendered by RTC in the exercise of its original jurisdiction. Questions of fact, law, or both from decisions of the CA, Sandiganbaya n, or CTA en banc. Special Cases i. RTC acting as Special Agrarian Court – Petition for review to CA ii. RTC acting as a Commercial Court – Petition for review to CA Period of Ordinary Appeal;  Fifteen (15) days from notice of the judgment or final order appealed from.  If a record on appeal is required, file notice of appeal and record on appeal within thirty (30) days from notice of the judgment or final order.  In HABEAS CORPUS cases, forty-eight (48) hours from notice of judgment or final order appealed from.  The period shall be interrupted by a timely Motion for New Trial or Motion for Reconsideration.  No motion for extension of time to file a Motion for Reconsideration or Motion for New Trial shall be allowed (same rule as MTC-RTC appeals), except in cases pending with the Supreme Court. (Rule 41, Section 3) Period of Ordinary Appeal; Appeal in Habeas Data Cases (A.M. No. 08-1-16-SC, Sec. 19) 1. The period of appeal shall be five (5) working (not calendar) days from the date of notice of the judgment or final order. 2. Appeal shall be made directly to the Supreme Court under Rule 45 where questions of fact or of law or both may be raised. Period of Ordinary Appeal; Appeal in Writ of Amparo Cases (A.M. No. 07-9-12-SC, Sec. 19) 1. The period of appeal shall be five (5) working (not calendar) days from the date of notice of the adverse judgment. 2. Appeal shall be made directly to the Supreme Court under Rule 45 where questions of fact or of law or both may be raised. Period of Ordinary Appeal; Appeal in Writ of Kalikasan Cases (A.M. No. 09-6-8-SC, Section 16) 1. The period of appeal shall be fifteen (15) working (not calendar) days from the date of notice of the adverse judgment. 2. Appeal shall be made directly to the Supreme Court under Rule 45 where questions of fact or of law or both may be raised. Rule on Filing Appeal Within Reglementary Period; Exception General Rule: The failure to timely perfect an appeal cannot simply be dismissed as a mere technicality, for it is jurisdictional. (Nuñez v. GSIS Family Bank, G.R. No. 163988, Nov. 17, 2005) Exception: If there has been extrinsic FAME, then resort to Petition for Relief from Judgment under Rule 38 may be had. (Habaluyas v. Japson, G.R. No. 70895, 1986) Appellate Court Docket and Other Lawful Fees Within the period for taking an appeal, the appellant shall pay to the Clerk of the Court, which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. (Rule 41, Sec. 4) Proof of payment shall be transmitted to appellate court together with the original record or the record on appeal, as the case may be. (Id.) Page 181 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Please refer to the previous discussions on General Rule and Exceptions with regard to Payment of Docket Fees under Rule 40. Notice of Appeal The notice of appeal must: 1. Indicate the parties to the appeal; 2. Specify judgment or final order or part thereof appealed from; 3. Specify the court to which the appeal is being taken; and 4. State the material dates showing the timeliness of the appeal. (Rule 41, Section 5) Record on Appeal The Record on Appeal shall include: 1. The full names of all the parties to the proceedings shall be stated in the caption 2. The judgment or final order from which the appeal is taken. 3. In chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issues involved; and 4. Together with such data as will show that the appeal was perfected on time (i.e., Material Data Rule). (Rule 41, Sec. 6) Approval of Record on Appeal Upon filing of the record on appeal for approval AND if no objection is filed by the appellee within five (5) days from receipt of the copy thereof the RTC may: a. Approve it as presented; OR b. Upon its own motion or at the instance of the appellee, may direct its amendment by the inclusion of any omitted matters which are deemed essential to the determination of the issue of law or fact involved in the appeal. (Rule 41, Sec. 7) If the trial court orders the amendment thereof, the appellant shall redraft the record by including therein, in their proper chronological sequence, such additional matters as the court may have directed him/her to incorporate, and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like matter as the original draft. (Id.). A record on appeal does not have to be set for hearing in the trial court by the appellant, as it is deemed submitted for approval upon its filing and the rule merely requires the adverse party to file any objection thereto within five (5) days. Joint Record on Appeal Can be applied when both parties are appellants. (Rule 41, Sec. 8) Perfection of Appeal; Effect Thereof Upon the timely filing of a notice of appeal and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the appellant. (Rule 41, Sec. 9) In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties. (Id.). In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties. (Id.). In either case, prior to the transmittal of the original record or the record on appeal, the court may exercise residual powers – to issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Section 2 of Rule 39, and allow withdrawal of the appeal. (Id.). Execution Pending Appeal General Rule: A perfected appeal stays the challenged judgment or final order; such judgment or final order cannot yet be the subject of a motion for execution (except in instances where execution pending appeal is allowed). (Id.). Exception: The law, the Rules, or the Court of Appeals, provide otherwise. (Id.) This is NOT applicable to civil cases under the Rule on Summary Procedure which provides that the decision of the RTC in civil cases governed by Page 182 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 said Rule, including forcible entry and unlawful detainer cases; shall be immediately executory without prejudice to a further appeal that may be taken therefrom. (Id., see also Sec. 25, Revised Rules on Summary Procedure) Rehabilitation proceedings are not bound by procedural rules spelled out in the Rules of Court. The Interim Rules of Procedure for Corporate Rehabilitation, not the Rules of Court, was the procedural law governing rehabilitation proceedings. To quote Rule 3, Section 5 of the Interim Rules: “A petition for review or an appeal therefrom shall not stay the execution of the order unless restrained or enjoined by the appellate court.” (Home Guaranty Corporation vs. La Savoie Development Corporation, G.R. No. 168616, 2015) Duty of the Clerk of Court of the Lower Court upon Perfection of Appeal Within thirty (30) days after perfection of all the appeals in accordance with the preceding section, it shall be the duty of the clerk of court of the lower court: 1. To verify the correctness of the original record or the record on appeal, as the case may be, and to make a certification of its correctness; 2. To verify the completeness of the records that will be transmitted to the appellate court; 3. If found to be incomplete, to take such measures as may be required to complete the records, availing of the authority that he or the court may exercise for this purpose; and 4. To transmit the records to the appellate court. (Sec. 10, Rule 41) If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or transcripts not included in the records being transmitted to the appellate court, the reasons for their non-transmittal, and the steps taken or that could be taken to have them available. The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the appellate court. (Id.). REMEDIAL LAW Transcript Upon perfection of the appeal, the clerk shall immediately direct stenographers concerned to attach to the record of the case: 1. 5 copies of the transcripts of the testimonial evidence referred to in the record on appeal. 2. Transcription of such testimonial evidence. 3. An index containing the names of the witnesses and the pages where their testimonies could be found; and 4. List of exhibits and pages wherein they appear. (Sec. 11, Rule 41) Transmittal The branch clerk of court of the RTC shall transmit to the appellate court the original record or the approved record on appeal: 1. Within 30 days from the perfection of the appeal; 2. With proof of payment of the appellate court docket and other lawful fees; 3. A certified true copy of the minutes of the proceedings; 4. An order of approval; 5. A certificate of correctness; 6. Original documentary evidence; and 7. Original and three copies of the transcript. (Sec. 12, Rule 41) Dismissal of Appeal PRIOR to the transmittal of the original record or the record on the appeal to the appellate court, the trial court may, motu proprio or on motion, dismiss the appeal for having been taken out of time OR for non-payment of the docket and other lawful fees within the reglementary period. (Sec. 13, Rule 41) Rule 41 does not allow a trial court to disallow an appeal on grounds other than an appeal being taken out of time or non-payment of docket and other fees within reglementary period. Rule 41 is an appeal as a matter of right, once it is perfected, only the CA may disallow an appeal (Kho v. Camacho, G.R. No. 82789, 1991) Page 183 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURT TO THE COURT OF APPEALS (Rule 42) How Appeal Taken Time for Filing Requisites: 1. File a verified petition for review with the Court of Appeals within 15 days from notice of the decision or of the denial of Motion for Reconsideration/Motion for New Trial;  The Court of Appeals may grant an additional period of 15 days within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. 2. Pay docket and lawful fees and deposit P500.00 to the Clerk of Court of the Court of Appeals; 3. Furnish the Regional Trial Court and adverse party with a copy of the petition (Sec. 1, Rule 42). RULE 41 RULE 42 Refers to regular appeals from the RTC exercising original jurisdiction Governs appeals from the decision of the RTC in the exercise of its appellate jurisdiction (Case originally filed with MTC) Covers questions of Appeals to the Court of fact, law or both. Appeals from the Regional Trial Court An appeal on pure under this rule MAY be questions of law made on questions of cannot be taken to the fact or of law or on Court of Appeals and mixed questions of fact such improper appeal and law will be dismissed pursuant to Section 2, Rule 50 of the Rules of Court. Note: An appeal taken to either the Supreme Court or the Court of Appeals by the wrong or inappropriate mode shall be dismissed. No transfers of appeals erroneously taken to the Supreme Court or to the Court of Appeals to whichever of these Tribunals has appropriate appellate jurisdiction will be allowed; continued ignorance or willful disregard of the law on appeals will not be tolerated. (SC Circular 2-90, March 9, 1990) Form and Contents The Petition shall contain: 1. Full names of the parties, without impleading the lower courts/judges thereof as petitioners or respondents; 2. Specific material dates to show it was filed on time; 3. A statement of the matters involved, the issues raised, the specification or errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; 4. Clearly legible duplicate originals or true copies of judgments of both lower courts, certified correct by the RTC Clerk of Court; and Page 184 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 5. Certificate of non-forum shopping. (Sec. 2, Rule 42) The lower courts or judges that rendered the judgment or final order complained of should not be impleaded as parties. The same prohibition is now provided in petitions for review on certiorari under Rule 45, since these are petitions for appeal and NOT original actions. (Sec. 2(a), Rule 42). Effect of Failure to Comply With Requirements The failure of the petitioner to comply with any of the following requirements shall be sufficient ground for the dismissal thereof: a. Payment of the docket and other lawful fees. b. Deposit for costs. Note: Before the Court of Appeals may grant the 15-day extension to file a petition for review, Sec. 1, Rule 42 of the Rules of Court requires the payment of the full amount of the docket and other lawful fees and the deposit of the necessary amount for costs before the expiration of the reglementary period. (Heirs of Esplana vs. CA, G.R. No. 155758, 2008) c. Proof of service of the petition; Note: The service of judgment serves as the reckoning point to determine whether a decision had been appealed within the reglementary period or has already become final. (Mindanao Terminal and Brokerage vs. CA, G.R. No. 163286, 2012); In Teh vs People, the Court of Appeals correctly dismissed the petition for being insufficient in form, not being accompanied by duplicate original or certified true copies of the documents and material parts of the record that would support the allegations. Moreover, there was no written explanation why service of the petition was not done personally. (Teh vs. People, G.R. No. 141180, 2005); and d. Contents of and the documents, which should accompany the petition. (Rule 42, Sec. 3) Note: It is petitioner who knows best what pleadings or material portions of the record of the case would support the allegations in the petition. Petitioner’s discretion in choosing the documents to be attached to the petition is, however, not unbridled. The CA has the duty to check the exercise of this discretion, to see to it that the submission of supporting documents is not merely perfunctory. REMEDIAL LAW The practical aspect of this duty is to enable the CA to determine at the earliest possible time the existence of prima facie merit in the petition. Moreover, Rule 42, Sec. 3 provides that if petitioner fails to comply with the submission of "documents, which should accompany the petition," it "shall be sufficient ground for the dismissal thereof." (Canton vs. City of Cebu, G.R. No. 152898, 2007) Note: In Quintin Lee vs. CA, the Court of Appeals correctly dismissed petitioner's appeal not only because he purportedly employed the wrong mode of appeal. It likewise found that petitioner failed to comply with the requirements of (Rule 42, Sec. 2[d]). In his petition before the appellate court, petitioner attached only plain machine copies of the certified photocopies of the assailed decisions of the lower courts. Neither did he submit the pleadings and other material portions of the record to support his allegations. (Quintin Lee vs. CA, G.R. No. 165918, 2008) Extension of Period to File Petition for Review General Rule: the CA may allow only 1 extension of 15 days to file the petition for review after docket fees are paid and if the motion for extension of time is filed within the 15-day reglementary period. Exception: for the most compelling reasons, the CA may allow another extension not to exceed 15 days Action on the Petition The Court of Appeals may: A. Require the respondent to comment, not file a motion to dismiss, within 10 days from notice, or B. Dismiss the petition if it finds it to be: a. Patently without merit; b. Prosecuted manifestly for delay; or c. Questions raised are too insubstantial to require consideration. (Sec. 4, Rule 42) Contents of Comment Requisites of the comment of the respondent: 1. File in 7 legible copies, accompanied by certified true copies of material portions of records referred to; 2. State whether or not he/she accepts the statement of matters involved in the petition; Page 185 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 3. Point out insufficiencies/inaccuracies as he/she believes exist in petitioner’s statement of matters involved but without repetition; and 4. State reasons why petition should not be given due course. A copy of the comment shall be served on the petitioner. (Sec. 5, Rule 42) Due Course If the Court of Appeals finds prima facie that the RTC committed an error of fact or law that will warrant a reversal or modification of the decision, it may give due course to the petition. (Sec. 6, Rule 42) REMEDIAL LAW Perfection of Appeal; Effect thereof The appeal is deemed perfected as to the petitioner upon the timely: 1. Filing of the petition for review; and 2. Payment of docket and lawful fees. (Sec. 8, Rule 42) The RTC loses jurisdiction over the case upon: a. The perfection of the appeals; and b. The expiration of the time to appeal of the other parties. Petition for review is not a matter of right but discretionary on the Court of Appeals. It may only give due course to the petition if it shows on its face that the lower court has committed an error of fact and/or law that will warrant reversal or modification of the decision or judgment sought to be reviewed. However, before the Court of Appeals gives due course to the petition, the RTC may still exercise residual powers: a. Issue orders for the protection and preservation of the rights of the parties, which do not involve any matter litigated by the appeal; b. Approve compromises; c. Permit appeals of indigent litigants; d. Order execution pending appeal in accordance with Sec. 2 of Rule 39; and e. Allow withdrawal of the appeal. (Id.) Elevation of Record Whenever the Court of Appeals deems it necessary, it may require the RTC to elevate the original records of the case within 15 days. (Sec. 7, Rule 42) Rule on Perfected Appeal General Rule: A perfected appeal stays the challenged judgment or final order. Exception: If the Court of Appeals, the law, or the Rules provide otherwise. Records remain with the trial court because it MAY still issue a writ of execution pending appeal and also because in some cases (e.g., ejectment and those of Summary Procedure), the judgments are immediately executory. This is NOT applicable to civil cases under the Rule on Summary Procedure, which provides that the decision of the RTC in civil cases governed by said Rule, including forcible entry and unlawful detainer cases. It shall be immediately executory without prejudice to a further appeal that may be taken therefrom. A REJOINDER (to the reply) is no longer required under AM No. 99-2-04-SC. Upon the Filing of the Reply, the Court Shall Resolve Either to: A. Give due course to the petition; and a. Consider the case submitted for decision based on the pleadings; or b. Require the parties to submit their respective memoranda; or B. Deny or dismiss the petition. Submission for Decision If the petition is given due course, the Court of Appeals (CA) may: a. Set the case for oral argument; and/or b. Require the parties to submit memoranda within a period of 15 days from notice. (Sec. 9, Rule 42) No new issues may be raised by a party in the Memorandum. Page 186 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Issues raised by a party in previous pleadings but not included in the Memorandum shall be deemed waived or abandoned. Being a summation of the parties’ previous pleadings, the Memoranda alone may be considered by the CA in deciding or resolving the petition. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the CA itself. PETITION FOR REVIEW ON CERTIORARI (APPEAL BY CERTIORARI) TO THE SUPREME COURT (Rule 45) Please refer to the subsequent section for the discussions on Rule 45. j. Appeal From Judgments And Final Orders Of The Court Of Appeals Appeal by Certiorari under Rule 45 A party desiring to appeal by certiorari from a judgment, final order or resolution of the following courts may file with the Supreme Court a verified petition for review on certiorari: a. Court of Appeals; b. Sandiganbayan; c. Regional Trial Court; d. Court of Tax Appeals (en banc); or e. Other courts, whenever authorized by law (Sec. 1, Rule 45) The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law which must be distinctly set forth. (Id.). The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. (As amended by A.M. No. 07-7-12 SC, Dec. 12, 2007) raises only questions of law, the appeal must be taken to the Supreme Court on a petition for review on certiorari under Rule 45;  All appeals from judgments rendered by the RTC in the exercise of its appellate jurisdiction, regardless of whether the appellant raises questions of fact, questions of law, or mixed questions of fact and law, shall be brought to the Court of Appeals by filing a petition for review under Rule 42. (Quezon City v. ABS-CBN Broadcasting Corp., G.R. No. 166408, 2008) Note: In all cases decided by the RTC in the exercise of its original jurisdiction, appeal may be made to the Court of Appeals by mere notice of appeal where the appellant raises questions of fact or mixed questions of fact and law (Id.) Certiorari as a Mode of Appeal (Rule 45) v. Certiorari as an Original Special Civil Action (Rule 65) APPEAL BY CERTIORARI (RULE 45) CERTIORARI AS AN ORIGINAL ACTION (RULE 65) Petition based only on questions of law which the appellant desires the appellate court to resolve. Petition raises the issue as to whether the lower court acted with grave abuse of discretion amounting to lack or excess of jurisdiction. Involves review of the May be directed judgment, award or against an final order on the interlocutory order of merits. the court prior to appeal from the judgment or where there is no appeal or any other plain, speedy or adequate remedy. Mode of Appeal Involving Pure Questions of Law in Cases where RTC Exercises Original vs. Appellate Jurisdiction  In all cases decided by the RTC in the exercise of its original jurisdiction where the appellant Page 187 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 APPEAL BY CERTIORARI (RULE 45) CERTIORARI AS AN ORIGINAL ACTION (RULE 65) Must be made within May be filed not later the reglementary than 60 days from period for appeal. notice of the judgment, order or resolution sought to be assailed, or 60 days from receipt of denial of a motion for reconsideration. Note that, as a general rule, before a party can file a petition for certiorari under Rule 65, he/she must first file a motion for reconsideration with the lower court. Stays the judgment, Does not stay the award or order challenged proceeding appealed from unless a writ of preliminary injunction or a temporary restraining order shall have been issued by the higher court. The petitioner and respondent are the original parties to the action, and the lower court or quasi-judicial agency is not to be impleaded. The parties are the aggrieved party (petitioner) against the lower court or quasijudicial agency (public respondent) and the prevailing party in the lower court (private respondent). The prior filing of a motion for reconsideration is not required. A motion for reconsideration is, as a general rule, a condition precedent. The purpose is to give the lower court an opportunity to correct itself. APPEAL BY CERTIORARI (RULE 45) CERTIORARI AS AN ORIGINAL ACTION (RULE 65) The appellate court is in the exercise of its appellate jurisdiction and power of review. The higher court exercises original jurisdiction under its power of control and supervision over the It is a continuation of proceeding of lower the proceedings in the courts. lower court. It is an original action. Treating Rule 45 Petitions as Rule 65 Petitions, and Vice-versa The Supreme Court, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, may decide to treat a petition for certiorari as having been filed under Rule 45. (Delsan v. CA, G.R. 112288, 1997). The Supreme Court has, on appropriate occasions, treated a petition for certiorari as a petition for review on certiorari, particularly when: i. The petition for certiorari was filed within the reglementary period to file a petition for review on certiorari; ii. The petition avers errors of judgment; and iii. When there is sufficient reason to justify the relaxation of the rules. (Navarez v. Abrogar III, G.R. No. 191641, 2015). Likewise, the Supreme Court exercised liberality and considered, recognized a petition for certiorari (Rule 65) as an appeal raising questions of law (Rule 45) based on the following exceptions: a. When public welfare and the advancement of public policy dictates; b. When the broader interest of justice so requires; c. When the writs issued are null and void; or d. When the questioned order amounts to an oppressive exercise of judicial authority. (Spouses Godinez v. Spouses Norman, GR No. 225449, 2020) However, the Supreme Court does not tolerate the practice of categorizing a petition to be “both under Rule 65 and Rule 45, Rules of Court,” as the Page 188 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 petition cannot be subsumed simultaneously under Rule 45 and Rule 65, and neither may petitioners delegate upon the court the task of determining under which rule the petition should fall. Wrong or inappropriate mode of appeal, merits an outright dismissal. (Ybaňez v. CA, G.R. No. 117499, 1996) When Rule 65 Petition is Available A special civil action for certiorari under Rule 65 lies only when there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. Thus, certiorari cannot be allowed when a party to a case fails to appeal a judgment despite the availability of that remedy. Certiorari is not a substitute for a lost appeal. (Indoyon vs. CA, G.R. No. 193706, 2013) (N.B.: In this case, the Petition for Certiorari under Rule 65 was filed 35 days after notice of resolution, by which time petitioner had therefore lost his appeal under Rule 45.) The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. Although it is true that the SC may treat a petition for certiorari (under Rule 65) as having been filed under Rule 45 to serve the higher interest of justice, it cannot be availed of when the petition is filed well beyond the reglementary period for filing a petition for review (under Rule 45) and without offering any reason therefor. (Banco Filipino v. CA, G.R. No. 132703, 2000; Sandoval v. Calipan G.R. No. 200727, 2013) To be sure, the distinctions between Rules 45 and 65 are far and wide. However, the most apparent is that errors of jurisdiction are best reviewed in a special civil action for certiorari under Rule 65, while errors of judgment can only be corrected by appeal in a petition for review under Rule 45. This Court, however, in accordance with the liberal spirit, which pervades the Rules of Court, and in the interest of justice may treat a petition for certiorari as having been filed under Rule 45, more so if the same was filed within the reglementary period for filing a petition for review. (Nuñez v. GSIS Family Bank, G.R. No. 163988, 2005) REMEDIAL LAW Questions of Law in Rule 45 Petition; Exceptions General Rule: Only QUESTIONS OF LAW may be raised in a petition for review under Rule 45 of the Rules of Court. (Sec. 1, Rule 45) Exceptions: QUESTIONS OF LAW, FACT, or BOTH may be determined, in the following instances: A. Appeal from CA, CTA en banc, and Sandiganbayan to SC B. Exceptions under the SC Circulars: a. Appeals from a Petition for the Writ of Habeas Data cases; b. Appeals from a Petition for the Writ of Amparo cases; or c. Appeals from a Petition for the Writ of Kalikasan cases. C. Exceptions Under Jurisprudence a. When the factual findings of the Court of Appeals and the trial court are contradictory; b. When the conclusion is a finding grounded entirely on speculation, surmises, or conjectures; c. When the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd, or impossible; d. When there is a grave abuse of discretion in the appreciation of facts; e. When the Appellate Court, in making its findings, went beyond the issues of the case and such findings are contrary to the admissions of both appellant and appellee; f. When the judgment of the Court of Appeals is premised on a misapprehension of facts; g. When the Court of Appeals failed to notice certain relevant facts which, if properly considered, would justify a different conclusion; h. When the findings of fact are themselves conflicting; i. When the findings of fact are conclusions without citation of the specific evidence on which they are based; and j. When the findings of fact of the Court of Appeals are premised on the absence of evidence but such findings are contradicted by the evidence on record. (Local Superior vs. Jody King, G.R. No. 141715, 2005) Page 189 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Basic Procedural Standards Under Rule 45 A petition under Rule 45 must satisfy the following: 1. That the petition does not only exclusively raise questions of law, but also that it distinctly sets forth those legal issues (Sec. 1, Rule 45); 2. That it be filed within 15 days of notice of the adverse ruling that impels it (Sec. 2, Rule 45); 3. That docket and other lawful fees are paid (Secs 3 & 5, Rule 45); 4. Tat proper service is made (Sec. 5(1), Rule 45); 5. That all matters that Section 4 specifies are indicated, stated, or otherwise contained in it (Secs. 4 & 5(1), Rule 45); 6. That it is manifestly meritorious (Sec. 5(2), Rule 45); 7. That it is not prosecuted manifestly for delay; and 8. That the questions raised in it are of such substance as to warrant consideration. (Kumar v. People, G.R. No. 247661, 2020) Time for Filing; Exceptions; Extension General Rule: The petition shall be filed within 15 days from the notice of the judgment appealed from, or of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment. (Sec. 2, Rule 45) Exceptions: a. Writ of Amparo – 5 working days b. Writ of Habeas Data – 5 working days Within the fifteen (15) day period, the petitioner may, for good cause, file a motion for extension of time to file his/her petition for review on certiorari. The petitioner must submit the requisite proof of service of such motion on the respondents, pay the docket and other lawful fees in full, as well as deposit the costs of suit. The Supreme Court may, for justifiable reasons, grant an extension of 30 days within which to file the petition, provided the following requisites concur: 1. A motion duly filed and served (within the original 15-day period); and 2. Full payment of the docket and other lawful fees and the deposit for costs (within the original 15-day period). (Sec. 2, Rule 45) REMEDIAL LAW Docket and Other Lawful Fees; Proof of Service of the Petition Unless he/she has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. (Sec. 3, Rule 45) The phrase “unless he has theretofore done so” refers to the situation in Sec. 2, Rule 45, wherein a motion for extension of time to file the petition for review was filed, in which case the petitioner had already paid the docket and other lawful fees and made the deposit for costs as requisites therefore. Although a copy of the petition is served upon the lower court concerned, it is only for the purpose of giving notice that its judgment should not be entered since it is not yet executory because of the pending petition for review thereof. The lower court does not become a party to the case since Rule 45 provides a mode of appeal. (Sec. 4(a), Rule 45) Nevertheless, proof of service of a copy thereof on the lower court concerned AND on the adverse party shall be submitted together with the petition. (Id.). Contents of petition The petition shall be filed in 18 copies with the original intended for the court being indicated as such by the petitioner. The verified petition shall contain: 1. Full names of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts/judges thereof either as petitioners or respondents. 2. Material dates showing: i. When notice of the judgment or final order or resolution subject thereof was received. ii. When a motion for new trial or reconsideration, if any, was filed; and iii. When notice of the denial thereof was received. 3. A statement of the matters involved and the reasons or arguments relied on for the allowance of the petition. 4. Clearly legible duplicate original, or a certified true copy of the judgment or final order or Page 190 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition. 5. Certificate of non-forum shopping. (Sec. 4, Rule 45) Rule 45, Section 4 of the Rules of Court indeed requires the attachment to the petition for review on certiorari “such material portions of the record as would support the petition.” However, such a requirement was not meant to be an ironclad rule such that the failure to follow the same would merit the outright dismissal of the petition. Dismissal is discretionary on the appellate court. (F.A.T. Kee Computer Systems, Inc. v. Online Networks International, Inc., G.R. No. 171238, 2011) In accordance with Section 7 of Rule 45, “the Supreme Court may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate.” More importantly, Section 8 of Rule 45 declares that “if the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice.” (Id.). Dismissal or Denial of Petition The failure of the petitioner to comply with any of the following requirements shall be sufficient ground for the dismissal thereof: a. Payment of the docket and other lawful fees. b. Deposit for costs. c. Proof of service of the petition; and d. Contents of and the documents which should accompany the petition. (Sec. 5, Rule 45) The Supreme Court may, on its own initiative, deny the petition on the following grounds: a. The appeal is without merit. b. It is prosecuted manifestly for delay; or c. The questions raised therein are too unsubstantial to require consideration. (Id.). Review discretionary A review is not a matter of right, but of sound judicial discretion and will be granted only when there are special and important reasons thereof. (Sec. 6, Rule 45) REMEDIAL LAW The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered: a. When the court a quo (the court “from which”) has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decision of the Supreme Court; or b. When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. (Id.). Pleadings and Documents That May be Required; Sanctions For the purposes of determining whether the petition should be dismissed or denied pursuant to Section 5 of this rule, or where the petition is given due course under Section 8 hereof, the Supreme Court may: A. Require or allow the filing of pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate. B. Impose sanctions in the following cases: a. Non-filing of such pleadings or documents. b. Unauthorized filing of such pleadings or documents; or c. Non-compliance with the conditions therefor. (Sec. 7, Rule 45) Due course; Elevation of Records If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or parts thereof within 15 days from notice. (Rule 45, Sec. 8) Rule Applicable to Both Civil and Criminal Cases General Rule: The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases. Exception: It is not applicable to criminal cases where the penalty imposed is: a. Death. b. Reclusion perpetua; or c. Life imprisonment. (Sec. 9, Rule 45) Page 191 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Procedure in Criminal Cases Where the Penalty is Death, Reclusion Perpetua, or Life Imprisonment  If RTC imposes the penalty of reclusion perpetua or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which death, reclusion perpetua or life imprisonment is imposed, appeal shall be by notice of appeal. (Sec. 3(c), Rule 122)  No notice of appeal is necessary if RTC imposes death penalty; CA will automatically review the judgment. (Sec. 3(e), Rule 122).  If the Court of Appeals should affirm the penalty of death, reclusion perpetua or life imprisonment, it could then render judgment imposing the corresponding penalty as the circumstances so warrant, refrain from entering the judgment and elevate the entire records of the case to the SC for its final disposition. (People v. Mateo, G.R. Nos. 147678-87, 2004) k. Appeal From Judgments Or Final Orders Of The Sandiganbayan A party desiring to appeal from a judgment or final order or resolution of the Sandiganbayan may file with the Supreme Court a verified petition for review on certiorari. (Sec. 1, Rule 45) The proper remedy is an appeal under Rule 45 and not a petition for certiorari under Rule 65. Section 7 of Presidential Decree No. 1606, as amended by Republic Act No. 8249, provides that “decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by a petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court." (People v. Espinosa, G.R. Nos. 153714-20, Aug. 15, 2003) l. Appeal From Judgments Or Final Orders Of The Court Of Tax Appeals (CTA) A party adversely affected by a ruling, order or decision of a Division of the CTA may file a motion for reconsideration or new trial before the same Division of the CTA within fifteen (15) days from REMEDIAL LAW notice thereof. (Sec. 11, R.A. 1125, as amended by R.A. 9282). A party adversely affected by a resolution of a Division of the CTA on a motion for reconsideration or new trial, may file a petition for review with the CTA en banc. (Sec. 18, R.A. 1125, as amended by R.A. 9282). A party adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified petition for review on certiorari pursuant to Rule 45 of the Rules of Court. (Sec. 19, R.A. 1125, as amended by R.A. 9282). m. Review Of Final Judgments Or Final Orders Of The Commission On Audit (Coa) A judgment or final order or resolution of the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65. (Sec. 2, Rule 64) The petitioner must show that the COA has acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. (Nayong Pilipino Foundation, Inc. v. Pulido Tan, G.R. No. 213200, 2017) Period to File The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. (Sec. 3, Rule 64). If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial. (Id.). The reglementary period includes the time taken to file the motion for reconsideration and is only interrupted once the motion is filed. If the motion is denied, the party may file the petition only within the period remaining from the notice of judgment. (Law Firm of Laguesma Magsalin Consulta and Page 192 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Gastardo v. Commission on Audit, G.R. No. 185544, 2015) n. Review Of Final Judgments Or Final Orders Of The Commission On Elections (COMELEC) A judgment or final order or resolution of the Commission on Elections may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65 in relation to Rule 64. (Sec. 2, Rule 64) But this mode of appeal is only limited to cases where the COMELEC exercises its adjudicatory or quasi-judicial powers. (Querubin v. Commission on Elections (En Banc), G.R. No. 218787, 2015) In the exercise of its administrative functions, such as when it acts as a procuring entity, then the proper remedy is a Rule 65 petition with the RTC pursuant to Sec. 58 of R.A. 9184 (Id.). The period to file is governed by the same rules as that with the COA, as discussed above. (Sec. 3, Rule 64). o. Review Of Final Judgments Or Final Orders Of The Civil Service Commission (CSC) Appeals from awards, judgments, final orders or resolutions of the Civil Service Commission shall be taken to the Court of Appeals. (Secs. 1 and 3, Rule 43). p. Review Of Final Judgments Or Final Orders Of The Ombudsman The rulings of the Office of the Ombudsman may either be in: i. Administrative disciplinary cases; or ii. Criminal cases (RIANO, 2019, p. 621). Final Judgments or Orders of the Ombudsman in Administrative Disciplinary Cases The Court of Appeals, under Rule 43, has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative cases. (Indoyon vs. CA, G.R. No. 193706, 2013). REMEDIAL LAW Sec. 27 of R.A. 6770, which provides that administrative disciplinary cases decided by the Ombudsman shall be directly appealed to the Supreme Court in accordance with Rule 45, was declared unconstitutional because it violated Section 30 of Article VI of the Constitution when the said provision increased the appellate jurisdiction of the Supreme Court without the latter’s concurrence and advice. (Fabian v. Desierto, G.R. No. 129742, 1998) Final Judgments or Orders of the Ombudsman in Criminal Cases Where the finding of the Ombudsman as to the existence of probable cause is tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction, an aggrieved party may file a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. (Tirol, Jr. v. Del Rosario, G.R. No. 135913, Nov. 4, 1999). q. Review Of Final Judgments Or Final Orders Of The National Labor Relations Commission (NLRC) Appeals from the NLRC shall be by petitions for certiorari under Rule 65, to be filed with the Court of Appeals in strict observance of the doctrine on the hierarchy of courts. (St. Martin Funeral Home v. National Labor Relations Commission, G.R. No. 130866, 1998). A special civil action for certiorari under Rule 65 is not the same as an appeal. In an appeal, the appellate court reviews errors of judgment. On the other hand, a petition for certiorari under Rule 65 is not an appeal but a special civil action, where the reviewing court has jurisdiction only over errors of jurisdiction. Thus, the CA may review NLRC decisions only when there is grave abuse of discretion amounting to lack or excess of jurisdiction. (Philippine National Bank v. Gregorio, G.R. No. 194944, 2017) Grave abuse of discretion may be ascribed to the NLRC when: 1. Its findings and conclusions are not supported by substantial evidence or in total disregard of evidence material to, or even decisive of, the controversy; Page 193 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 2. It is necessary to prevent a substantial wrong or to do substantial justice; 3. The findings of the NLRC contradict those of the Labor Arbiter; and 4. It is necessary to arrive at a just decision of the case. (Almagro v. Philippine Airlines, Inc., G.R. No. 204803, Sep. 12, 2018). r. Review Of Final Judgments Or Final Orders Of Quasi-Judicial Agencies (Rule 43) Quasi-judicial Body; Nature of Quasi-judicial Function A quasi-judicial agency or body is an organ of government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule-making. A "quasi-judicial function" is a term which applies to the action, discretion, etc. of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. (Monetary Board v. Philippine Veterans Bank, G.R. No. 189571, 2015) Quasi-judicial Agencies Covered by Rule 43 Under Section 1 and 3 of Rule 43, appeals from awards, judgments, final orders, resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions shall be taken to the Court of Appeals. The list below is not exclusive: i. Civil Service Commission (see Special Rules and the end of this subsection) ii. Central Board of Assessment Appeals. iii. Securities and Exchange Commission. iv. Office of the President (OP). Note: The parties may file a motion for reconsideration of the order, ruling, or decision of the OP. Since the OP is essentially an administrative agency exercising quasi-judicial functions, its decisions or resolutions may be appealed to the CA through a petition for review under Rule 43 of the Rules of Court. Rule 65 bars its use as a mode of review when an appeal or any other remedy at law is available (subject to exceptions). (PBA vs. Gaite, G.R. No. 170312, 2009) v. vi. vii. viii. ix. x. xi. xii. xiii. Land Registration Authority. Social Security Commission. Civil Aeronautics Board. Bureau of Patents. Trademarks and Technology Transfer. National Electrification Administration. Energy Regulatory Board. National Telecommunications Commission. Dept. of Agrarian Reform under R.A. No. 6657. xiv. Government Service Insurance System. xv. Employees Compensation Commission. xvi. Agricultural Invention Board. xvii. Insurance Commission. xviii. Philippine Atomic Energy Commission. xix. Board of Investments. xx. Construction Industry Arbitration Commission; and xxi. Voluntary arbitrators authorized by law. Note: The decision or award of the voluntary arbitrator or panel of arbitrators under the Labor Code should likewise be appealable to the Court of Appeals, in line with the procedure outlined in Revised Administrative Circular No. 1-95 (now embodied in Rule 43 of the 1997 Rules of Civil Procedure), just like those of the quasi-judicial agencies, boards and commissions enumerated therein, and consistent with the original purpose to provide a uniform procedure for the appellate review of adjudications of all quasi-judicial entities. (Samahan ng mga Manggagawa sa Hyatt vs. Bacungan, G.R. No. 149050, 2009) A motion for reconsideration must first be filed by the party adversely affected by the ruling of the Voluntary Abitrator or Panel of Voluntary Arbitrator within 10 days from such ruling. Only after the resolution of the motion for reconsideration may the aggrieved party appeal to the CA by filing the petition for review under Rule 43 of the Rules of Court within 15 days from notice pursuant to Section 4 of Rule 43. (Guagua National Colleges v. Court of Appeals, G.R. No. 188492, 2018) Page 194 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Preliminary Investigation Not a Quasi-judicial Proceeding A preliminary investigation is not a quasi-judicial proceeding, and that the DOJ is not a quasijudicial agency exercising a quasi-judicial function when it reviews the findings of a public prosecutor. A quasi-judicial body is as an organ of the government other than a court and other than a legislature which affects the rights of private parties through either adjudication or rule-making. Such is not the case when a public prosecutor conducts a preliminary investigation to determine probable cause to file an information against a person charged with a criminal offense, or when the Secretary of Justice is reviewing the former's order or resolutions (Santos v. Go, G.R. No. 156081, Oct. 19, 2005). Court of Tax Appeals Not Covered by Rule 43 The CTA is on the level of the CA and thus not covered by Rule 43. (Sec. 1, R.A. 1125, as amended by R.A. 9282). Modes of Appeal Under the Omnibus Investments Code The Omnibus Investment Code allows two avenues of appeal from an action or decision of the Board of Investments (BOI): A. Elevate an appeal to the Office of the President when an action pertains to: a. The decisions of the BOI over controversies concerning the implementation of the relevant provisions of E.O. No. 226 that may arise between registered enterprises or investors and government agencies (see Article 7, E.O. 226); or b. An action of the BOI over applications for registration under the investment priorities plan (see Article 36, E.O. 226); B. Elevate the matter directly to judicial tribunals in actions pertaining to: a. A party adversely affected by the issuance of a license to do business in favor of an alien or a foreign firm.  The aggrieved party may file with the proper RTC an action to cancel the said license; b. Direct appeal to the Supreme Court from any order or decision of respondent BOI. (see Article 82, E.O. 226) (National REMEDIAL LAW Federation of Hog Farmers, Inc. v. Board of Investments, G.R. No. 205835, 2020) Exhaustion of Administrative remedies; Common Examples: i. Office of the President (OP) - reviewable by CA; ii. Housing and Land Use Regulatory Board (HLURB) – go to the OP first, then the OP decision is reviewable by CA; iii. National Labor Relations Commission (NLRC) – only by Rule 65 to CA (labor case); iv. Department of Agriculture Adjudication Board (DARAB) – reviewable by CA; v. Provincial Agrarian Reform Adjudicator (PARAD) – go to the DARAB first, then to the CA; vi. RTC as commercial court – reviewable by the CA; vii. RTC as special agrarian court – reviewable by the CA Steps to Determine Coverage of Rule 43: 1. Check the listing in Sec. 1; 2. Determine if it is a decision rendered in the exercise of a quasi-judicial function; 3. If so, follow the rules on appeals, i.e., only final order/decisions are appealable; 4. If the agency is not listed in Sec. 1, look at the charter or rules that govern such administrative agency: a. If the charter explicitly states that Rule 43 applies – file a Rule 43; b. If the charter merely states that the decisions are appealable – file a Rule 43. Applicability to NLRC General Rule: This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. (Rule 43, Sec. 2) Exception: Judgments and final orders or resolutions of the National Labor Relations Commission are now reviewable, in the first instance, by the Court of Appeals on certiorari under Rule 65, but those of the Employees Compensation Commission should be brought to the CA through a petition for review under this Rule. (St. Martin Funeral Homes v. NLRC, G.R. No. 130866, 1998) Page 195 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Applicability to SEC Special rules of procedure have also been adopted for cases formerly within the jurisdiction and adjudicatory processes of the SEC. (See Regalado 10th ed. P. 573) The Supreme Court issued A.M. No. 04-9-07-SC as a clarification on the proper mode of appeal of cases which were formerly under the jurisdiction of the SEC, such as those cases involving corporate rehabilitation. Now, there is no more need to file a notice of appeal and record on appeal. An appeal may now be perfected by filing a petition for review within fifteen (15) days from notice of the decision or final order of the trial court, directly to the CA under Rule 43 of the Rules of Court. (China Banking Corp. vs. Cebu Printing, G.R. No. 172880, 2010) SPECIAL RULES When Appealing From Judgments and Final Orders of CSC, DOJ, NLRC, Office Of The Ombudsman, and Secretary of Labor Judgment or Final Orders of: REMEDY CIVIL SERVICE General Rule: COMMISSION (CSC) Rule 43 with the CA Note: The petitioner’s failure to state the date of receipt of the copy of the October 10, 2011 CSC decision is not fatal to her case since the dates are evident from the records. Besides, we have ruled that the more important material date which must be duly alleged in the petition is the date of receipt of the resolution of denial of the motion for reconsideration, which the petitioner has duly complied with. As to the failure to state the notary public’s office address, the omission was rectified with the attachment in the motion for reconsideration of the verification and certification of non-forum shopping and of the affidavit of service, with the notary public’s office address. (Barra vs. CSC, G.R. No. 205250, 2013) Exceptions: Rule 65 with the CA a. When public welfare and the advancement of public policy dictates; b. When the broader interest of justice so requires; c. When the writs issued are null and void; or d. When the questioned order amounts to an oppressive exercise of judicial authority.(DepEd vs. Cunanan, G.R. No. 169013, 2008) DEPARTMENT OF a. If punishable by reclusion perpetua to death - Appeal to the OP, then file an JUSTICE (DOJ) appeal via Rule 43 with the CA b. If less than reclusion perpetua to death - Rule 65 with the CA (Elma vs. Jacobi, G.R. No. 155996, 2012) Decisions, orders, resolutions of the Secretary of Justice on preliminary investigations involving an offense/determination of probable cause Page 196 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW OFFICE OF THE Administrative Cases OMBUDSMAN The decision shall be final, executory and unappealable where the respondent is: a. Absolved of the charge; and b. In case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary,. In all other cases, the deci-,sion may be appealed to the CA in accordance with Rule 43 within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the MR. Note: An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal. A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer, without just cause, to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against said officer. Criminal Cases File a petition under Rule 65 with the SC. Consolidated Administrative and Criminal Liability Rule 43 with the CA (Administrative) Rule 65 to the SC (Criminal) NATIONAL LABOR File an MR with the NLRC, then file a Rule 65 petition with the CA. (St. Martin RELATIONS Funeral Homes v. NLRC, G.R. No. 130866, 1998) COMMISSION (NLRC) VOLUNTARY File an MR with the voluntary arbitrator within 10 days from the decision, then file ARBITRATORS a petition under Rule 43 within 15 days with the CA. (Guagua National Colleges UNDER THE LABOR v. Court of Appeals, G.R. No. 188492, 2018) CODE SECRETARY OF File an MR with the Secretary of Labor, then file a petition under Rule 65 with the LABOR (even if CA. (Philtranco v. Philtranco Workers Union, G.R. No. 180962 , 2014) acting as voluntary arbitrator) RTC as a File a petition under Rule 43 with the CA. (China Banking Corp. vs. Cebu Printing, Commercial Court G.R. No. 172880, 2010) (formerly SEC) Page 197 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Where to Appeal An appeal under this Rule may be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law. (Rule 43, Sec. 3) Period of Appeal The period shall be within 15 days from: 1. Notice of the award, judgment, final order or resolution; or 2. Date of last publication, if publication is required by law for its effectivity; or 3. Denial of petitioner’s Motion for New Trial or Motion for Reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) Motion for Reconsideration is shall be allowed. (Sec. 4, Rule 43) Note: Rule 43, Section 4 specifically allows only one motion for reconsideration to an appealing party; as such, the reckoning of the fifteen (15)-day period to perfect the appeal starts from the receipt of the resolution denying the motion for reconsideration. (Yinlu Bicol Mining Corporation v. Trans-Asia Oil and Energy Development Corporation, 2015) Upon proper motion and the payment of the full amount of the docket fees before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. (Sec. 4, Rule 43) No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. (Id.). How Appeal is Taken Requisites: 1. File a verified petition for review: i. With the Court of Appeals in seven 3 legible copies (per Efficient Use of Paper Rule, A.M. No. 11-9-4-SC); ii. Attach proof of service of a copy thereof on the adverse party and on the court or agency a quo. 2. Pay to the Clerk of Court of the Court of Appeals the docket and other lawful fees and deposit P500.00 for costs. i. Exemption from payment of docket and lawful fees may be granted by the Court of Appeals upon a verified motion setting forth the valid grounds therefor; ii. If the Court of Appeals denies the motion, petitioner shall pay the docket and other lawful fees within 15 days from notice of denial. (Sec. 5, Rule 43) REGIONAL TRIAL COURT AS APPELLATE COURT (RULE 42) QUASI-JUDICIAL AGENCIES (RULE 43) Decision is stayed by Decision is an appeal immediately executory, not stayed by an appeal unless TRO is issued Factual findings not Factual findings are conclusive upon the conclusive upon the Court of appeals if Court of Appeals supported by substantial evidence Contents of the Petition The petition for review shall contain: 1. Full names of the parties, without impleading the court/agencies either as petitioners or respondents. 2. Concise statement of the facts and issues involved and the grounds relied upon for review. 3. Clearly legible duplicate original or a certified true copy of the award, judgment, final order or resolution appealed from, together with: 4. Certified true copies of such material portions of the record referred to therein. 5. Other supporting papers; 6. Certificate of non-forum shopping. 7. Material dates to show it was filed within the period fixed therein. (Sec. 6, Rule 43) Sec. 6 of Rule 43 does not require that all of the supporting papers or annexes accompanying the petition should be certified true copies or duplicate originals. What is mandatory is to attach the Page 198 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 clearly legible duplicate originals or certified true copies of the judgment or final orders of the lower courts, which is/are being questioned/assailed. (Jaro v. CA, G.R. No. 127536, 2002) Effect of Failure to Comply With Requirements Failure of petitioner to comply with any of the following requirements shall be sufficient ground for the dismissal thereof: a. Payment of the docket and other lawful fees; b. Deposit for costs; c. Proof of service of the petition; and d. Contents of and the documents which should accompany the petition. (Sec. 7, Rule 43) Petitioner failed to comply with the requirement by not impleading its creditors as respondents. Sec 7 of the same rule provides that failure to comply with requirements shall be sufficient ground for the dismissal thereof. (Viva Shipping Lines Inc., v. Keppel Philippines Mining Inc., GR No. 177382, 2016) Action on the Petition The Court of Appeals may: A. Require the respondent to file a comment on the petition, not a motion to dismiss, within 10 days from notice; or B. Dismiss the petition if it finds the petition to be: a. Patently without merit. b. Prosecuted manifestly for delay; or c. The questions raised therein are too unsubstantial to require consideration. (Sec. 8, Rule 43) Contents of a Comment The following are the requisites of a comment of the respondent: 1. Must be filed in 7 legible copies; 2. Accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with the supporting papers; 3. Must point out insufficiencies or inaccuracies in petitioner’s statement of facts and issues; 4. Must state the reasons why the petition should be denied or dismissed; and 5. Must be filed within 10 days from notice. (Sec. 9, Rule 43) REMEDIAL LAW A copy thereof shall be served on the petitioner and proof of such service shall be filed with the Court of Appeals. (Id.). The appeal shall not stay the award, final order, or resolution sought to be reviewed UNLESS the Court of Appeals shall direct otherwise upon such terms as it may deem just. (Sec. 12, Rule 43). Due Course If from the records the Court of Appeals finds prima facie that the court or agency committed errors of fact or law that would warrant a reversal or modification of the decision sought to be reviewed, it may give due course to the petition. Otherwise, it shall dismiss the same. The findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals. (Sec. 10, Rule 43) Transmittal of Record Within 15 days from notice that the petition has been given due course, the Court of Appeals may require the court or agency concerned to transmit the record of the proceeding under review. The record to be transmitted may be abridged by the agreement of all parties to the proceeding. The Court of Appeals may require or permit the subsequent correction of or addition to the record. (Sec. 11, Rule 43) Submission for Decision If the petition is given due course, the Court of Appeals may: a. Set the case for oral argument; and/or b. Require the parties to submit memoranda within 15 days from notice. (Sec. 10, Rule 43) The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the Court of Appeals. (Rule 43, Sec. 13) Page 199 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 DISMISSAL, REINSTATMENT, AND WITHDRAWAL OF APPEAL; OTHER MATTERS Dismissal of Appeal Sec. 1, Rule 50 lists 9 grounds wherein the CA may, on its own motion or on that of the appellee, dismiss an appeal. These are: a. Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; b. Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; c. Failure of the appellant to pay the docket and other lawful fees as provided in section 5, Rule 40 and section 4 of Rule 41(Bar Matter No. 803, 1998); d. Unauthorized alterations, omissions or additions in the approved record on appeal as provided in Section 4 of Rule 44; e. Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; f. Absence of specific assignment of errors in the appellant's brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; g. Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; h. Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and i. The fact that the order or judgment appealed from is not appealable. In deciding to dismiss an appeal, the CA is bound to exercise its sound discretion upon taking all the pertinent circumstances into due consideration. (People v. Diaz, G.R. No. 180677, 2013). Also, a litigant’s failure to furnish his opponent with a copy of his appeal brief does not suffice to warrant the dismissal of an appeal. All that is needed is for the court to order the litigant to furnish opponent with a copy of brief. (Tiangco v. Land Bank of the Philippines, G.R. No. 153998, 2010) REMEDIAL LAW The “Harmless Error Rule” In Appellate Decisions No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect which does not affect the substantial rights of the parties. (Sec. 6, Rule 51). General Rule: No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors, or closely related to or dependent on an assigned error and properly argued in the brief, save as the court may pass upon plain errors and clerical errors. (Sec. 8, Rule 51) Exceptions: a. Those affecting jurisdiction over subject matter; b. Evidently plain and clerical errors within contemplation of law; c. In order to serve ends of justice; d. Matters raised in trial court having some bearing on issue which parties failed to raise or which lower court ignored; e. Matters closely related to error assigned; (Sps. Mario and Julia Campos v. Republic, G.R. No. 184371, 2014) Withdrawal of an Appeal Filing a motion to withdraw appeal does not result in automatic withdrawal of the appeal. An appeal may be withdrawn as of right at any time before the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of the court. (Sec. 3, Rule 50; In Re: Resolution CA-G.R. No. 94656 v. Mortel, 2016) Entry of Judgments and Final Resolutions If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final resolution shall Page 200 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 forthwith be entered by the clerk in the book of entries of judgments. The date when the judgment or final resolution becomes executory shall be deemed as the date of its entry. The record shall contain the dispositive part of the judgment or final resolution and shall be signed by the clerk, with a certificate that such judgment or final resolution has become final and executory. (Sec. 10, Rule 51) Modes Of Attacking Final And Executory Judgments MODE GROUND Petition for When the judgment has been Relief under taken against the party through Rule 38 FAME Action for Extrinsic fraud, lack of annulment of jurisdiction, denial of due judgment process under Rule 47 Direct action, as certiorari, OR collateral attack under Rule 65 Certiorari – when there is grave abuse of discretion amounting to lack or excess of jurisdiction. A challenged judgment, void upon its face, can be the subject of a collateral attack. (Feria and Noche, Civil Procedure Annotated, Vol. 2, 2013 Ed., p. 109) 3. RELIEF FROM JUDGMENTS, ORDERS, AND OTHER PROCEEDINGS (RULE 38) Nature of a Petition for Relief Relief from judgment is a remedy provided by law to any person against whom a decision or order is entered through fraud, accident, mistake, or excusable negligence. This remedy is equitable in character, allowed only in exceptional cases where there is no other available or adequate remedy provided by law or the rules. (Cagayan Economic Zone Authority v. Meridien Vista Gaming Corp., G.R. No. 194962, Jan. 27, 2016) Thus, if a Motion for New Trial was available at the time that the Petition for Relief from Judgment was filed, the petition was premature, i.e., there is a more adequate remedy. (Gomez v. Montalban, G.R. No. 174414, 2008) A party who has filed a motion for new trial but which was denied, CANNOT file a petition for relief. These two remedies are EXCLUSIVE of each other. The remedy is to appeal the judgment. (Francisco v. Puno, G.R. No. L-55694, 1981) a. Grounds For Availing Of The Remedy A Petition for Relief may be filed when through fraud, accident, mistake, or excusable negligence (FAME): a. A judgment or final order is entered into, or any other proceeding is thereafter taken against the petitioner; or b. When the petitioner has been prevented from taking an appeal. (Sec. 1 and 2, Rule 38). Who May File A motion for new trial or reconsideration and a petition for relief from judgment are remedies available only to parties in the proceedings where the assailed judgment is rendered. In fact, it has been held that a person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment. (Alaban v. Court of Appeals, G.R. No. 156021, Sep,23, 2005) Where to File; Prayer a. When the petition involves a relief from a judgment, order, or proceeding – the petitioner shall pray that the judgment, order, or proceeding be set aside; b. When the petition involves a relief from being prevented from taking an appeal – the petitioner shall pray that the appeal be given due course. (RIANO, 2019, p. 633). In both cases, the petition shall be filed in the same court and in the same case. (Redena v. CA, G.R. No. 146611, 2007) Cases Where Petition for Relief is Applicable A petition for relief may be taken from the order of execution, inasmuch as Sec. 2, Rule 38, Revised Rules, does not only refer to judgments, but also to orders, or any other proceedings. (Cayetano Page 201 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 v. Osmundo Ceguerra, G.R. No. L-18831, Jan. 30, 1965). file R65 to question civil action under Rule denial 65. However, relief from judgment is NOT allowed in summary proceedings. (Sec. 19, Revised Rules on Summary Procedure) Legal remedy It is also not allowed in small claims cases (Sec. 16(d), Rules of Procedure for Small Claims Cases) Equitable remedy Motion need not be Petition verified. verified. must be b. Time To File Petition A petition for relief from judgment is not among the remedies available in the Court of Appeals and the Supreme Court. (Purcon, Jr. v. MRM Philippines, Inc., G.R. No. 182718, Sep. 26, 2008). The phrase “any court” that is referred to in Rule 38 are Metropolitan or Municipal or Regional Trial Courts. (Sps. Mesina vs. Meer, G.R. No. 146845, 2002) Motion for Reconsideration vs. Petition for Relief NEW TRIAL OR RECONSIDERATION (RULE 37) PETITION FOR RELIEF (RULE 38) Available before Available after judgment becomes judgment becomes final and executory. final and executory. Applies to judgments Applies to judgments, or final orders only. final orders and other proceedings. Grounds:  FAME; and  Newly discovered evidence. Grounds:  FAME Filed within the time to Filed within 60 days appeal. from knowledge of the judgment and within 6 months from entry of judgment. If denied, the order of denial is not appealable. The remedy is to appeal from the judgment or If denied, the order of denial is not appealable. The remedy is a special The petition shall be filed within sixty (60) days after the petitioner learns of the judgment, final order or proceeding, and NOT more than six (6) months after such judgment or final order was entered, or such proceeding was taken. (Sec. 3, Rule 38) Both periods are NOT extendible and never interrupted. These two periods must CONCUR. (Quelnan v. VHF Philippines, G.R. No. 138500, 2005) Note: The alternative phrase “or such proceeding was taken” in Sec. 3, Rule 38 could be taken to mean other proceedings which are NOT to be entered, such as a writ of EXECUTION and an order approving a COMPROMISE AGREEMENT. In such cases, the period must have to commence from the date of occurrence because entry is either unnecessary or inconsequential. (Feria and Noche, Civil Procedure Annotated, Vol. 2, 2013 Ed., p. 120, citing Dirige v. Biranya, G.R. No. L22033, 1996) Petition for relief from a judgment based on a compromise must be filed not later than 6 months from the date it was rendered (not date of entry), since such judgment becomes final and executory immediately upon approval of the compromise agreement. (Republic v. Estenzo, G.R. No. L24656, 1968) Note: A motion to dismiss the petition for relief may be filed on the ground of lack of jurisdiction, when the latter is filed beyond the reglementary period. (Pacific Importing v. Tinio, G.R. No. L2634, 1949) Page 202 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW c. Contents Of Petition The petition must contain: 1. The affidavits showing the grounds relied upon; 2. The facts constituting the petitioner’s good and substantial cause of action or defense (i.e., affidavit of merit); and 3. A verification; (Sec. 3, Rule 38). Note: A separate affidavit is NOT necessary if such facts are alleged in the verified petition. (Feria and Noche, 2013 Ed., p. 117, citing Fabar Incorporated v. Rodelas, G.R. No. L-46394 1977, and Samonte v. S.F. Naguiat, G.R. No. 165544, 2009) Order to File Answer If the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall issue an order requiring the adverse parties to answer the same within fifteen (15) days thereof. The order shall be served in such manner as the court may direct, together with copies of the petition and the accompanying affidavits. (Sec. 4, Rule 38) Proceedings After the Answer is Filed After the filing of the answer or the expiration of the period to file the answer, the court shall hear the petition. Thereafter, the court may either: a. Dismiss the petition if it finds that the allegations thereof are not true; or b. Set aside the judgment or final order or other proceeding if it finds the allegations to be true. The case shall then stand as if such judgment, final order or other proceeding had never been rendered, issued, or taken. The court shall hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it. (Sec. 6, Rule 38) IMPORTANT: An order GRANTING the petition for relief is interlocutory hence not immediately appealable. (Sec. 1(b), Rule 41). An order DENYING the petition for relief is now subject only to certiorari under Rule 65. (Id.). Note: If the petition is insufficient, as for example, no affidavit of merit is attached, the court may dismiss the petition outright. (Omandam v. Director of Lands, G.R. No. L-4301, 1954) Procedure Where the Denial of an Appeal is Set Aside The lower court shall be required to give due course to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been made. (Sec. 7, Rule 38) Failure to file answer does not warrant declaration of default. 4. ANNULMENT OF JUDMENTS AND FINAL ORDERS AND RESOLUTIONS (RULE 47) Preliminary Injunction Pending Proceedings Because a final and executory judgment is the subject of a petition for relief, the judgment may be subject to execution. A person who files a petition under Rule 38 may file a preliminary injunction to preserve the rights of the parties upon filing of a bond. Annulment of Judgment A remedy in law independent of the case where the judgment sought to be annulled was rendered. Consequently, an action for annulment of judgment may be availed of even if the judgment to be annulled had already been fully executed or implemented. (Bulawan v. Aquende, G.R. No. 182819, 2011; Diona v. Balangue, G.R. No. 173559, 2013) The bond is conditioned upon the payment to the adverse party of all damages and costs that may be awarded to such adverse party by reason of the issuance of the preliminary injunction. Such injunction shall not discharge any lien which the adverse party may have acquired upon the property of the petitioner. (Sec. 5, Rule 38) Coverage This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate Page 203 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 remedies are no longer available through no fault of the petitioner. (Sec. 1, Rule 47) This Rule also covers actions to annul a judgment or final order of a Municipal Trial Court which shall be filed in the Regional Trial Court having jurisdiction over the former. It shall be treated as an ordinary civil action and Sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (Sec. 10, Rule 47) The purpose is to set aside a final and executory judgment, so that there would be a renewal of litigation. This remedy is NOT available to decisions of quasi-judicial bodies. Rule 47 limits its application to regional trial courts and municipal trial courts. (Imperial v. Armes, G.R. Nos. 178842 & 195509, 2017). 2. Lack of jurisdiction (Rule 47, Sec. 2) Absolute lack of jurisdiction over the person of the defending party OR over the subject matter of the claim. Note: In a petition for annulment of judgment based on lack of jurisdiction, petitioner must show not merely an abuse of jurisdictional discretion, but an ABSOLUTE lack of jurisdiction. (RP vs. Technological Advocates, G.R. No. 165333, 2010) 3. Denial of Due Process Denial of due process is recognized by jurisprudence as an additional ground, where there is an unconstitutional deprivation of property without due process, or a party has not had his day in court (Intestate Estate of the Late Nimfa Sian v. Philippine National Bank, G.R. No. 168882, 2007; Sps. Benatiro vs. Heirs of Cuyos, G.R. No. 161220, 2008) a. Grounds For Annulment 1. Extrinsic fraud (Rule 47, Section 2) Extrinsic or collateral fraud connotes any fraudulent scheme executed by a prevailing litigant outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case. (Libudan vs. Gil, G.R. No. L-21163, 1972) The petitioner should show that the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available without fault on the part of the petitioner. A petition for annulment that ignores or disregards any of the safeguards cannot prosper. (Sibal v. Buquel, G.R. No. 197825, Jan. 11, 2016). Thus, extrinsic fraud will not be a valid ground if it was availed of, or could have been availed of in a motion for new trial or a petition for relief from judgment. Note: The petition need not categorically state the exact words “extrinsic fraud”; rather, the allegations in the petition should be so crafted to easily point out the ground on which it was based. (Castigador vs. Nicolas, G.R. No. 184023, 2013) Summary of Rules on Grounds:  If ground is extrinsic fraud – availability of MR/MNT/Petition for relief will be a bar to Rule 47  If ground is lack of jurisdiction – availability of an MR/MNT/Petition for relief will not be a bar to a Rule 47 Where Filed  CA – over decisions of the RTC; or  RTC – over decisions of the MTC (Sec. 1 and 10, Rule 47). b. Period To File Action a. If based on EXTRINSIC FRAUD – the action must be filed within four (4) years from its discovery; b. If based on LACK OF JURISDICTION – the action does not prescribe since the judgment is void. But note that laches or estoppel can set in as an equitable bar to the action (Sec. 3, Rule 47); c. If based on DENIAL OF DUE PROCESS – the action does not prescribe. Lack of due process renders the judgment void. An action to declare the nullity of a void judgment does not prescribe. (Sps. Benatiro vs. Heirs of Cuyos, G.R. No. 161220, 2008) Page 204 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Filing and Contents of Petition The action shall be commenced by filing a verified petition alleging therein with particularity: a. The facts and the law relied upon for annulment; b. Those supporting the petitioner’s good and substantial cause of action or defense, as the case may be. (Sec. 4, Rule 47). REMEDIAL LAW Procedure A petition for annulment of judgment filed in the Court of Appeals shall observe the procedure in ordinary civil actions. Should a trial be necessary, the reception of the evidence may be referred to a member of the Court or a Regional Trial Court judge. (Rule 47, Sec. 6) c. Effects Of Judgment Of Annulment The petition shall be filed in 7 legible copies, together with: 1. Sufficient copies corresponding to the number of respondents. 2. Affidavits of witnesses or documents supporting the cause of action; and 3. Certificate of non-forum shopping. (Id.) A certified true copy of the judgment or final order or resolution shall be attached to the original copy of the petition intended for the court and indicated as such by the petitioner. (Id.) We have consistently held that a person need not be party to the judgment sought to be annulled. What is essential is that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and that he would be adversely affected thereby. (Bulawan v. Aquende, G.R. No. 182819, 2011) Material dates need to be stated to prove that the petition was filed within 4 years from the discovery of the fraud; fraud must be extrinsic (Ramos v. Combong, Jr., G.R. No. 144273, 2005) Submitted wrongly to the jurisdiction of the RTC (should have been LBAA); once a party invokes the jurisdiction of a court, that party cannot then deny it and use it as bases for a Rule 47 (Sps. Teaño v. Navotas, G.R. No. 205814, 2016) Action by the Court The court may: a. Dismiss the petition outright, if it finds no substantial merit in the petition, with specific reasons for such dismissal; or b. Give due course if the court finds prima facie merit in the petition, in which case summons shall be served on the respondent. (Rule 47, Sec. 5) A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being re-filed in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may, on motion, order the trial court to try the case as if a timely motion for new trial had been granted therein. (Rule 47, Sec. 7) Suspension of Prescriptive Period The prescriptive period for the re-filing of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. (Sec. 8, Rule 47) Relief available The judgment of annulment may include: a. Award of damages; b. Attorney’s fees; and c. Other relief. (Sec. 9, Rule 47) If the questioned judgment or final order or resolution had already been executed, the court may issue: a. Orders of restitution or b. Other relief as justice and equity may warrant under the circumstances. Annulment of Judgments or Final Orders of MTC. (Id.). Remedies from a Rule 47 a. If petition is denied – file a Rule 45 petition to SC (if questions of law are involved); Page 205 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 b. If question of fact – no remedy left; c. If petition was merely given due course (i.e., it is only interlocutory) – file a Rule 65 petition to the SC 5. COLLATERAL ATTACK OF JUDGMENTS Collateral Attack of Judgments A collateral attack upon a judgment has been defined to mean any proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered or by appeal, and except suits brought to obtain decrees declaring judgments to be void ab initio. (15 R.C.L., 838); (Alviar vs. Carlos, G.R. No. L-45291, 1937) REMEDIAL LAW S. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS 1. DIFFERENCE BETWEEN FINAL JUDGMENT FOR PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION Differences for Purposes of Appeal General Rule: Final judgments dispose of, adjudicate, or determine the rights of the parties and leave nothing to be adjudicated upon. Only final judgments can be the subject of an appeal. Note: In the case of Sps. Benatiro, the CFI (RTC)'s order being null and void, it may be assailed anytime, collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked, unless barred by laches. Consequently, the compromise agreement and the Order approving it must be declared null and void and set aside. (Sps. Benatiro vs. Heirs of Cuyos, G.R. No. 161220, 2008) Final judgment or Order A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Direct Attack vs. Collateral Attack A DIRECT ATTACK against a judgment is made through an action or proceeding the main object of which is to annul set aside, or enjoin the enforcement of such judgment, if not yet carried into effect; or, if the property has been disposed of, the aggrieved party may sue for recovery. Nothing more remains to be done by the Court except to await the parties' next move and ultimately, of course, to cause the execution of the judgment once it becomes "final" or, to use the established and more distinctive term, "final and executory." (Philippine Business Bank vs. Chua, G.R. No. 178899, 2010) A COLLATERAL ATTACK is made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face, is null and void, as where it is patent that the court which rendered said judgment has no jurisdiction. (Co vs. CA, G.R. No. 93687, 1991) Differences for Purposes of Execution: Execution of a final and executory judgment is a matter of right. A judgment is final and executory when the law/rules do not provide for an appeal or the period to appeal has lapsed without an appeal being taken. Final Judgments vs. Final and Executory Judgments Judgments are “FINAL” in a sense that they finally dispose of, adjudicate, or determine the rights of the parties. But such judgments are not yet final and executory pending the period of appeal. During that period, execution of the Page 206 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 judgment cannot be yet demanded by the winning party as a matter of right. Judgments become “FINAL AND EXECUTORY” by operation of law. Finality of judgment becomes a fact upon the lapse of the reglementary period to appeal if no appeal is perfected. In such a situation, the prevailing party is entitled to a writ of execution, and issuance thereof is a ministerial duty of the court. (Abrigo vs. Flores, G.R. No. 160786, 2013); (Feria and Noche, Civil Procedure Annotated, 2013 ed., vol. 2, p.127) Doctrine of Immutability of Judgments A judgment that has acquired finality becomes immutable and unalterable, and may no longer be modified in any respect even if the modification is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court of the land. The doctrine of immutability and inalterability of a final judgment has a two-fold purpose: 1. To avoid delay in the administration of justice and thus, procedurally, to make orderly the discharge of judicial business; and 2. To put an end to judicial controversies, at the risk of occasional errors, which is precisely why courts exist. Exceptions: a. Correction of clerical errors; b. Nunc pro tunc entries that cause no prejudice to any party; c. Void judgments; and d. Whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable. (Apo Fruits and Hijo Plantation vs. CA, G.R. No. 164195, 2009) Note: A supervening event, to be sufficient to stay or stop the execution, must alter or modify the situation of the parties under the decision as to render the execution inequitable, impossible, or unfair. The supervening event cannot rest on unproved or uncertain facts. (Abrigo vs. Flores, G.R. No. 160786, 2013) Doctrine of immutability of a final judgment may be relaxed only to serve the ends of substantial REMEDIAL LAW justice in order to consider certain circumstances like: i. Matters of life, liberty, honor or property; ii. Existence of special or compelling circumstances; iii. Merits of the case; iv. Cause not being entirely attributable to the fault or negligence of the party favored by the suspension of the doctrine; v. Lack of any showing that the review sought is merely frivolous and dilatory; vi. Other party will not be unjustly prejudiced by the suspension. (Abrigo vs. Flores, G.R. No. 160786, 2013) 2. WHEN EXECUTION SHALL ISSUE NO appeal may be taken from an order of execution. A party desiring to assail an order of execution may instead file an appropriate special civil action under Rule 65 of the Rules of Court. Requisites of a Writ of Execution The writ must conform strictly to the decision or judgment; it cannot vary the terms of the judgment it seeks to enforce. a. Execution As A Matter Of Right When Execution is a Matter of Right a. Upon judgment or order that disposes of the action or proceeding; b. Upon expiration of the period to appeal therefrom and no appeal has been duly perfected; c. When appeal has been duly perfected and resolved with finality. (Sec. 1, Rule 39) Execution shall issue as a matter of right upon motion. (Id.) Judgments and Final Orders Which may be Executed as a Matter of Right Even BEFORE Expiration of Time to Appeal: a. Judgment of lower court against defendant in forcible entry and unlawful detainer (where the defendant fails to post a supersedeas bond or deposit the rentals with the court, or where the appeal is from a decision of the regional trial court against the defendant). Page 207 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 b. Judgment in action for injunction, receivership, accounting and support, unless otherwise ordered by the court. c. Award, judgment, final order, or resolution of quasi-judicial bodies appealable to the Court of Appeals. (Feria and Noche, Civil Procedure Annotated, 2013 ed., vol. 2, p. 127) Note: These are without need of advance notice or service of a motion for execution on defeated party. Section 1 of Rule 39 of the Revised Rules of Court does not prescribe that a copy of the motion for the execution of a final and executory judgment be served on the defeated party, like litigated motions such as a motion to dismiss (section 3, Rule 16), or motion for new trial (section 2, Rule 37), or a motion for execution of judgment pending appeal (section 2, Rule 39), in all of which instances a written notice thereof is required to be served by the movant on the adverse party in order to afford the latter an opportunity to resist the application. Once the judgment has become final and executory, the prevailing party (judgment obligee) may, by motion, ask for the issuance of a writ execution of the judgment in the court of origin. (Far Eastern Surety vs. Vda. De Hernandez, G.R. No. L-30359, 1975) The prevailing party can have it executed as a matter of right, and the judgment debtor need not be given advance notice of the application for execution nor be afforded prior hearings thereon. (De Mesa vs. CA, G.R. No. 109387) Elementary is the rule that every motion must contain the mandatory requirements of notice and hearing and that there must be proof of service thereof. The rule, however, is NOT ABSOLUTE. There are motions that can be acted upon by the court ex parte if these would not cause prejudice to the other party. They are not strictly covered by the rigid requirement of the rules on notice and hearing of motions. A motion for execution is such kind of motion. (Anama vs. CA, G.R. No. 187021, 2012) The issuance of the writ of execution is the ministerial duty of the court. Thus, it is compellable by MANDAMUS. REMEDIAL LAW Exceptions (i.e., when the court may refuse execution): a. Where the judgment turns out to be incomplete or conditional; b. Judgment is novated by the parties (e.g., compromise); c. Change in the situation of the parties which would render execution of judgment unjust; d. Execution is enjoined (e.g., there is a preliminary injunction); e. Judgment has become dormant; or f. Execution is unjust or impossible. A compromise agreement, once approved by final order of the court, has the force of res judicata between the parties and should not be disturbed except for vices of consent or forgery. Hence, a decision on a compromise agreement is final and executory and it has the force of law and is conclusive between the parties. It transcends its identity as a mere contract binding only upon the parties thereto as it becomes a judgment that is subject to execution in accordance with the Rules of Court. (Sonley v. Anchor Savings Bank/Equicom Savings Bank, G.R. 205623, 2016) However, a writ of execution should not vary the terms of the compromise agreement. Otherwise, it is void. In this case, it is void because the Compromise Agreement only obliged the petitioners to deposit the settlement amount in escrow. There was nothing in the Compromise Agreement that required the petitioners to ensure the distribution of the settlement amount to each claimant. (Chiquita Brands, Inc. v Omelio, GR No. 189102, 2017) Grounds for Quashing a Writ of Execution a. When the writ of execution varies the judgment; b. When there has been a change in the situation of the parties making the execution inequitable or unjust; c. When execution is sought to be enforced against property exempt from execution; d. When it appears that the controversy has never been submitted to the judgment of the court; e. When the terms of the judgment are not clear enough and there remains room for interpretation thereof; Page 208 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 f. When it appears that the writ of execution has been improvidently issued; or g. When it appears that the writ of execution is defective in substance, or is issued against the wrong party or that the judgment debt has been paid or otherwise satisfied, or the writ was issued without authority. You can also file a petition for certiorari under Rule 65 with prayer for TRO to restrain execution. (Albano, Remedial Law Reviewer) When Execution of Final and Executory Judgments May be ENJOINED: a. Upon filing of a petition for relief from judgment, the court in which the petition is field may grant preliminary injunction for the preservation of the rights of the parties pending the proceedings; b. In an attack against a judgment which is void for lack of jurisdiction or was obtained through fraud, the court in which the action for certiorari, injunction, or annulment is filed may grant preliminary injunction; and c. On equitable grounds. (Feria and Noche, Civil Procedure Annotated, 2013 ed., vol. 2, p. 130) General Rule: The dispositive portion of the decision is the part that is subject of execution. Exceptions: a. Where there is ambiguity, the body of the opinion may be referred to for purposes of construing the judgment. (Mutual Security Insurance Corporation v. Court of Appeals, G.R. No. L-47018, 1987); b. Where extensive and explicit discussion and settlement of the issue is found in the body of the decision. (Wilson Ong Ching Kian Chung, et al v. Chinese National Cereals Oil and Foodstuffs Import and Export Corp, et al. G.R. No. 131502, June 8, 2000) REMEDIAL LAW Execution of a Judgment or Final Order Pending Appeal Requisites: 1. Motion for execution filed by the prevailing party; 2. Notice of the motion to adverse party; and 3. Good reasons stated in a special order after due hearing. (Rule 39, Sec. 2) On motion, WITH NOTICE to the adverse party, the prevailing party may apply for a writ of execution of judgment or final order pending appeal. This must be done while trial court has jurisdiction over the case and is in possession of either the original record or record on appeal. The court may, in its discretion, order execution even before the expiration of the period for appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed with the appellate court. Note: Awards for MORAL and EXEMPLARY damages CANNOT be the subject of execution pending appeal. (International School, Inc. (Manila) v. CA, G.R. No. 131109, 1999) Unlike the actual damages for which the petitioners may clearly be held liable if they breach a specific contract and the amounts of which are fixed and certain, liabilities with respect to moral and exemplary damages as well as the exact amounts remain uncertain and indefinite pending resolution by the Intermediate Appellate Court (now CA) and eventually the Supreme Court. (Radio Communications v. Lantin, G.R. No. L-59311, 1985) Note: Execution pending appeal is NOT applicable in land registration proceedings. b. Discretionary Execution Types of Discretionary Execution i. Execution of a judgment or a final order pending appeal; and ii. Execution of several, separate or partial judgments Good Reasons Good reasons consist of compelling circumstances justifying immediate execution lest judgment becomes illusory, or the prevailing party, after the lapse of time, be unable to enjoy it, considering the tactics of the adverse party who may have apparently no cause but to delay. Page 209 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 (Archinet International, Inc. v. Beco Philippines, Inc. G.R. No. 183753, 2009) REMEDIAL LAW Where the education of the person to be supported would be unduly delayed. (Javier v. Lucero, et al. G.R. No. L-6706, 1953) through the filing of a supersedeas bond. Thus, the penultimate sentence of Section 3 states: “[T]he bond thus given may be proceeded against on motion with notice to the surety.” Consequently, it finds no application in election protest cases where judgments invariably include orders which are not capable of pecuniary estimation such as the right to hold office and perform its functions. (Navarosa vs. Comelec, G.R. No. 157957, 2003) The insolvency of the judgment debtor. (Archinet International, Inc. v. Becco Philippines, Inc. G.R. No. 183753, 2009) Judgments Not Stayed by Appeal General Rule: Judgment is stayed by appeal. If so stayed, it is not yet executory. However, when there are several defendants and the co-defendant is not insolvent, insolvency of a defendant is not a good reason for execution. (Philippine National Bank v. Puno G.R. No. 76018, 1989) Exceptions: The following are instances when judgments are immediately executory: a. Injunction; b. Receivership; c. Accounting; d. Support; e. Other judgments declared to be immediately executory as ordered by the trial court. (Sec. 4, Rule 39) Examples of GOOD REASONS: That the appeal was being taken for the purpose of delay. (Presbitero v. Roxas, G.R. 48121, 1941) Execution of Several, Separate, or Partial Judgments Several separate or partial judgments MAY be executed under the SAME terms and conditions as execution of judgment or final order pending appeal. Note: An award for actual/compensatory damages may be ordered executed pending appeal, but not an award for moral or exemplary damages. Stay of Discretionary Execution Discretionary execution is stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The supersedeas bond is filed by the petitioner and approved by the court BEFORE the judgment becomes final and executory. It guarantees the satisfaction of the judgment in case of affirmation on appeal. (Rule 38, Section 3) These exceptions shall be enforceable after their rendition and shall NOT be stayed by an appeal taken therefrom UNLESS otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion MAY make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. The stay of execution shall be upon such terms as may be considered proper for the security or protection of the rights of the adverse party. (Sec. 4, Rule 39) Effect of Reversal of Executed Judgment The trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances. (Sec. 5, Rule 39) Note: Section 3 (Stay of Discretionary Execution) applies to ordinary civil actions where the interest of the prevailing party is capable of pecuniary estimation, and consequently, of protection, Page 210 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 3. HOW JUDGMENT IS EXECUTED a. Execution By Motion Or By Independent Action A final and executory judgment or order may be executed: a. On motion, within five (5) years from entry; or b. By filing an independent action for revival of judgment after five (5) years but before ten (10) years from entry. The revived judgment may be enforced: a. By motion, within five (5) years from date of its entry; or b. By action, after the lapse of five (5) years, before it is barred by the statute of limitations. (Sec. 6, Rule 39) Suspension of the Five Year Period for Execution by Motion There had been many instances where this Court allowed execution by motion even after the lapse of five years, upon meritorious grounds. These exceptions have one common denominator, and that is: the delay is caused or occasioned by actions of the judgment debtor and/or is incurred for his benefit or advantage.||| (Republic v. Court of Appeals, G.R. No. 91885, 1996) Execution by Independent Action – REVIVAL OF JUDGMENT An action for revival of judgment is a new and independent action. It is different and distinct from the original judgment sought to be revived or enforced. (Heirs of Miranda, Sr. v. Miranda, G.R. No. 179638, 2013) Hence, the five (5) year period to enforce the judgment by motion and the ten (10) year period to enforce the judgment by action will run from the date of finality of the revived judgment and not of the original judgment. The action for revival of judgment need not necessarily be filed with the same court that decided the case; it shall be filed in the RTC as one incapable of pecuniary estimation. REVIVAL OF JUDGMENT (SECTION 6) REVIVAL OF JUDGMENT (SECTION 34) An independent action A motion filed in court assigned with a new and not an docket number, independent action. requires the payment of filing fees, and assigned to a new court. Assumes that there is Assumes that a no execution within the judgment is executed first five years. within the first five years. The party who files the action is the judgment creditor himself, or his assignee, or successor-in-interest. The party who files the motion is not the original judgment creditor but the highest bidder in the public auction sale. Filed due to lapse of Filed because movant the five-year period. is deprived of the property purchased. Execution in Case of Death or Party In case of death of the judgment obligee, execution will issue upon the application of the executor or administrator or successor-in-interest. In case of death of judgment obligor: BEFORE levy: a. Execution will issue if the action is for the recovery of real or personal property or any lien thereon. b. Execution will not issue if the action is for the recovery of a sum of money. The judgment obligee must file a claim against the estate of the judgment obligor under Rule 86. AFTER levy: Execution will continue even in money judgment. The property may be sold for the satisfaction of the judgment obligation, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands. (Sec. 7, Rule 39) Page 211 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 b. Issuance And Contents Of A Writ Of Execution Writ of Execution A judicial writ issued to an officer authorizing him/her to execute the judgment of the court. Requisites: 1. Must strictly conform to the decision or judgment which gives it life; 2. Cannot vary the terms of judgment it seeks to enforce. The writ must: 1. Be issued in the name of the Republic of the Philippines from the court, which granted the motion; 2. State the name of the court, the case number and title, the dispositive part of the subject judgment or order; and 3. Require the sheriff or other proper officer to enforce the writ according to its terms. (Sec. 8, Rule 39) The motion for execution and the writ of execution must state specifically the amount of interest, costs, damages, rents, or profits due as of the date of issuance of the writ, aside from the principal obligation. (Sec. 8(e), Rule 39) Special sheriffs for the service of a writ of execution are not authorized by law. An appeal is the remedy for an order denying the issuance of a writ of execution. Issuance of the corresponding writ of execution upon a final and executor judgment is a ministerial duty of the court to execute which is compellable by mandamus (Ebero v. Cañizares, G.R. No. L1397, 1947) c. Execution Of Judgments For Money A judgment for money is enforced by: i. Immediate payment on demand; ii. Satisfaction by levy; iii. Garnishment of debts and credits. (Sec. 9, Rule 39) REMEDIAL LAW Immediate Payment on Demand Judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter of the full amount stated in the writ of execution. (Sec. 9 (a), Rule 39). Satisfaction by Levy LEVY is an act by which an officer sets apart or appropriates a part of the whole property of the judgment debtor for purposes of the execution sale. (Llenares v. Valdeavella, G.R. No. 21572, 1924) Levy is a pre-requisite to the auction sale. In order that an execution sale may be valid, there must be a previous valid levy. A sale not preceded by a valid levy is void and the purchaser acquires no title. (Valenzuela v. De Aguila, G.R. No. L-1808383, 1963) The officer shall levy upon properties of the judgment obligor not otherwise exempt from execution. The judgment obligor exercises discretion to choose which property to levy and if not exercised; the officer shall levy first on personal property, then on real property. The sheriff shall sell only property sufficient to satisfy the judgment and other lawful fees. (Sec. 9(b), Rule 39) Mistaken Levy Upon due application of the third person and after summary hearing, the court may command that the property be released from the mistaken levy and restored to the rightful owner or possessor. What said court can do in these instances, however, is limited to a determination of whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of judgment, more specifically, if he has indeed taken hold of property not belonging to the judgment debtor. The court does not and cannot pass upon the question of title to the property, with any character of finality (Magdalena T. Villasi v. Filomena Garcia, substituted by his heirs, namely, Ermelinda H. Garcia, et al., G.R. No. 190106, 2014) Page 212 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Garnishment of Debts and Credits GARNISHMENT is an act of appropriation by the court when the property of a debtor is in the hands of a third person. It is a species of attachment for reaching any property or credits pertaining or payable to a judgment debtor. (De la Victoria v. Burgos, G.R. No. 111190, 1995) Note: Garnishment is proper only when the judgment to be enforced is one for payment of a SUM OF MONEY. It cannot be employed to implement a special judgment such as that rendered in a special civil action for mandamus. (National Home Mortgage vs. Alpajaro, G.R. No. 166508, 2009) The sheriff may levy on debts due to the debtor, or other credits, including bank deposits, financial interests, royalties, commissions and other personal property, not capable of manual delivery in the possession or control of 3rd parties. Notice must be served to the 3rd party. (Sec. 9(c), Rule 39). Note: The unused balance of an overdraft account is not a credit subject to garnishment. (Feria and Noche, Civil Procedure Annotated, 2013 ed., vol. 2, p.181) The garnishee or the 3rd person who is in possession of the property of the judgment debtor is deemed a forced intervenor. (Bank of the Philippine Islands v. Lee, G.R. No. 190144, 2012) d. Execution Of Judgments For Specific Acts Sale of Real or Personal Property The officer must sell such property, describing it, and apply the proceeds in conformity with the judgment. (Sec. 10(b), Rule 39) Delivery or Restitution of Real Property The officer shall demand the losing party to peaceably vacate the property within 3 working days, and restore possession to judgment obligee; otherwise, the officer shall oust such disobedient party. (Sec. 10(c), Rule 39) REMEDIAL LAW A writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a habere facias possessionem and authorizes the sheriff to break open the premises where there is no occupant therein. (Arcadio v. Ylagan, A.C. No. 2734, July 30, 1986) Removal of Improvements on Property Subject of Execution Officer shall not destroy, demolish, or remove improvements except upon special order of the court. (Sec. 10(d), Rule 39) But if demolition is involved, there must be a special order. (Id.). Delivery of Personal Property The officer shall take possession of the same and forthwith deliver it to the party entitled to satisfy any judgment for money as therein provided. (Sec. 10(e), Rule 39) Failure to Comply If a party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party. (Sec. 10 (a), Rule 39) When the party refuses to comply, the court can appoint some other person at the expense of the disobedient party and the act done shall have the same effect as if the disobedient party performed it. (Id.) e. Execution Of Special Judgments Special Judgment A special judgment is one which requires the performance of any other act than the payment of money, or the sale or delivery of real or personal property. (Moslem v. Soriano, G.R. No. L-36837, 1983) For example, a judgment granting a petition for mandamus is a special judgment, since a writ of mandamus is a command directed to an inferior court, tribunal, or board, or to some corporation or person, requiring the performance of a particular duty, and which duty results from the official station of the party to whom the writ is directed, or from operation of law. (National Housing Mortgage Finance Corporation v. Abayari, G.R. No. 166508, 2009) Page 213 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Requisites: 1. The judgment requires performance of any act other than payment of money, or the sale or delivery of real or personal property. 2. A certified copy of the judgment shall be: i. Attached to the writ of execution; and ii. Served by the office upon: 3. Party against whom the judgment is rendered; 4. Any other person required by the judgment or by law to obey the writ. (Sec. 11, Rule 39) Failure to comply with special judgment under Rule 39, Section 11 is punishable by contempt by imprisonment. This is an exception to the rule that contempt is not a remedy to enforce a judgment. (Id.) f. Effect Of Levy On Third Persons The levy on execution creates a lien in favor of the judgment obligee over the right, title, and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing. (Sec 12, Rule 39) 4. PROPERTIES EXEMPT FROM EXECUTION Except as otherwise expressly provided by law, the following property, and no other, shall be EXEMPT from execution: i. Family home, or homestead, land necessarily used in connection therewith; ii. Ordinary tools and implements used in trade, employment, or livelihood; iii. Three (3) horses, cows, carabaos, or other beast of burden necessarily used in his/her ordinary occupation; iv. Necessary clothing and articles for ordinary personal use, except jewelry; v. Household furniture and utensils necessary for housekeeping that has value not exceeding P100K; vi. Provisions for individual or family use sufficient for 4 months; vii. Professional libraries and equipment; viii. One fishing boat and accessories value of which does not exceed P100K used in livelihood; REMEDIAL LAW ix. Salaries, wages, or earnings as are necessary for support of family within 4 months preceding levy; x. Lettered gravestones; xi. Monies, benefits, privileges, or annuities accruing out of any life insurance; and xii. Properties specially exempt from execution. Other EXEMPTIONS: i. Property mortgaged to DBP. (Section 26, C.A. 458); ii. Property taken over by Alien Property Administration. (Section 9[f], US Trading With The Enemy Act); iii. Savings of national prisoners deposited with the Postal Savings Bank. (Act 2489); iv. Backpay of pre-war civilian employees. (R.A. 304); v. Philippine Government backpay to guerillas. (R.A. 897); vi. Produce, work animals, and farm implements of agricultural lessees, subject to limitations. (Section 21, R.A. 6389); vii. Benefits from private retirement systems of companies and establishments, with limitations. (R.A. 4917); viii. Labor wages, except for debts incurred for food, shelter, clothing, and medical attendance. (Civil Code, Art. 1708); ix. Benefit payments from the SSS. (Section 16 R.A. 1161 as amended by P.D.s 24, 65, and 177); x. Copyrights and other rights in intellectual property under the former copyright law. (P.D. 49 cf. Section 239.3, R.A. 8293); xi. Bonds issued under R.A. 1000. (NASSCO v. CIR G.R. No. L-17874, 31 August 1963; Regalado, F. Remedial Law Compendium Vol. 1, 9th ed., pp. 481-482) But no article or species of property mentioned under Section 13, Rule 39 shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage hereon. Government Retirement Benefits Subject to Execution Pursuant to a Protection Order Under R.A. 9262 Based on Section 8(g) of R.A. 9262 (Anti-Violence Against Women and Their Children Act), the court Page 214 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 has the power to direct the employer to withhold the appropriate amount from the Respondent’s salary and to automatically remit the same to the woman, despite what other laws provide. The Supreme Court ruled that Section 8(g) of R.A. 9262, which is a later law, should be understood to be an exception to the general rule prohibiting garnishment of the government benefits. In addition, the Supreme Court declared that the law’s use of the term “employer” applies to all employers, whether private or government. (Republic of the Philippines vs. Daisy R. Yahon, G.R. No. 201043, June 16,2014) 5. PROCEEDINGS WHERE PROPERTY IS CLAIMED BY THIRD PERSONS; IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND REPLEVIN Who May File Third Party-Claims Any other person other than the judgment obligor or his agent, i.e., the third-part claimant. (Sec. 16, Rule 39) Remedies of a Third-Party Claimant Under Sec. 16, Rule 39 Based on this section, a third-party claimant has the following cumulative remedies: a. He may avail of “terceria” by serving on the levying officer an affidavit of his title or right of possession over the levied property, and serving also a copy to the judgment creditor; Note: Terceria is a remedy available to a third person other than the judgment obligor or his agent who claims a property levied on. (Fermin v. Esteves, G.R. No. 147977, 2008) b. He may file a case for damages against the bond issued by the judgment debtor within 120 days from the date of the filing of the bond; Note: By availing of terceria, the officer served with the affidavit of the third-party claimant shall not be bound to keep the property claimed, unless the judgment creditor files an indemnity bond. It is such bond which the third-party claimant can enforce against. It shall be in a sum not less than the value of the levied property. (Sec. 16, Rule 39). REMEDIAL LAW c. He may file "any proper action" to vindicate his claim to the property. (Id.) Note: A "proper action" is entirely distinct and separate from that in which the judgment is being enforced, filed with the court of competent jurisdiction. Such a "proper action" may have for its object the recovery of ownership or possession of the property seized by the sheriff, as well as damages from the allegedly wrongful seizure and detention of the property. The availment of the remedy of terceria is not a condition sine qua non to the filing of a "proper action." An independent action may be resorted to even before or without need of filing a claim in the court which issued the writ. (Naguit v. Court of Appeals, G.R. No. 137675, 2000) Time to File a Terceria A terceria may be filed at any time, so as long as the sheriff has the possession of the property levied upon, or before the property is sold under execution. Procedure in Making a Terceria Third (3rd) Party Claimant should: 1. Make an affidavit of his/her title thereto, or right of possession thereof, stating the grounds of such right or title; and 2. Serve such affidavit upon the sheriff and a copy thereof upon the judgment obligee. Effect of Terceria The officer shall not be bound to keep the property, UNLESS the judgment obligee, on demand the officer files an INDEMNITY BOND approved by the court to indemnify the third party claimant in a sum not less than the value of the property levied on. In case of disagreement as to the value of the property, the court issuing the writ shall determine the same. The officer shall not be liable for damages to any third-party claimant if such bond is filed by the judgment obligee for the taking or keeping of the property. Page 215 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a SEPARATE action. However, the judgment obligee can claim damages against a third-party claimant who filed a frivolous or plainly spurious claim, and such judgment obligee can institute proceedings therefor in the SAME or SEPARATE action. When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall NOT be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. (Sec. 16, Rule 39) In Relation to Third-Party Claim in Attachment and Replevin Proceedings where property is claimed by a third person are the same as to a judgment obligee (final and executory judgments), an attaching party (attachment), and an applicant praying for recovery of possession of personal property (replevin), EXCEPT that the amount of the INDEMNITY BOND they file differs. Attachment (Rule 57) To keep the property in the possession of the sheriff, the ATTACHING PARTY or his AGENT, on demand of the sheriff, shall file a BOND approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. (Sec. 14, Rule 57) Remedy: Nothing shall prevent a claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the SAME or a SEPARATE action. (Sec. 14, Rule 57) Replevin To keep the property in the possession of the sheriff or to have the latter deliver the property to the applicant, the APPLICANT or his AGENT, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than double the value of the property as stated in the applicant’s affidavit. (Sec. 7, Rule 60) Remedy: Nothing shall prevent claimant or any 3rd person from vindicating his claim to the property, or prevent the applicant from claiming damages against a 3rd-party claimant who filed a frivolous or plainly spurious claim, in the SAME or a SEPARATE action. (Id.) RETURN OF WRIT OF EXECUTION The writ of execution shall be returnable to the court immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after receipt of the writ, the officer shall report to the court and state the reason therefor. (Sec. 14, Rule 39) Lifetime of the Writ of Execution The writ shall continue in effect during the period within which the judgment may be enforced by motion. (Id.) Thus, the writ is enforceable within the five (5) year period from entry of judgment. (Sec. 5, Rule 39). EXECUTION SALE Notice of Sale of Property on Execution If PERISHABLE property: notice is made by posting a written notice of the time and place of the sale in three (3) public places, preferably in conspicuous areas of the municipal or city hall, post office and public market where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property. OTHER PERSONAL property: notice is made by posting a similar notice in three (3) public places above-mentioned for not less than five (5) days. If REAL property: notice is made by posting for 20 days in three (3) public places a similar notice particularly describing the property and stating where the property is to be sold. Page 216 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21  If the assessed value of the property exceeds P50,000, notice is made by: o Publishing a copy of the notice once a week for two (2) consecutive weeks in one (1) newspaper selected by raffle (whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city). execution and the costs that have been incurred therein. (Sec. 18, Rule 39) In ALL cases, a written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) where notice shall be given at any time before the sale. It shall specify the place, date and exact time of sale (between 9AM and 2PM). (Sec. 15, Rule 39,) After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess shall be promptly delivered to the judgment obligor or his/her authorized representative, unless otherwise directed by the judgment or order of the court. (Sec. 19, Rule 39) Penalty For Selling Without Notice, or Removing or Defacing Notice The following are liable for actual and punitive damages: a. An officer selling without the notice required under Section 15; and b. A person willfully removing or defacing the notice posted, if done before the sale, or before satisfaction of judgment if satisfied before the sale. Actual and punitive damages may be recovered by motion in the same action. (Sec. 17, Rule 39) Place of Sale A. It may be agreed upon by the parties; or B. In the absence of such agreement, the sale will be held in: a. Sale or Real or Personal Property NOT Capable of Manual Delivery:  Office of the Clerk of Court of MTC; or  RTC which issued the writ or was designated by the appellate court b. Sale of Personal Property Capable of Manual Delivery:  Place where property is located. (Sec. 15, Rule 39) No Sale if Judgment and Costs Paid At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the How Property Sold on Execution; Who May Direct Manner And Order of Sale Sales of property under execution must be made: 1. At public auction; 2. To the highest bidder; and 3. To start at the exact time fixed in the notice. ORDINARY SALE ON EXECUTION No need confirmation of court SALE IN JUDICIAL FORECLOSURE OF MORTGAGE for Must be confirmed by the the court Right of redemption No right of redemption exists when real except by the property is involved. mortgagor where the mortgagee is a bank or a banking institution. (see Section 47 of General Banking Law of 2000) If the mortgagee is a non-banking institution, there is no right to redeem. Only equity of redemption is available. Title is acquired after the expiration of the period of redemption when the final deed of conveyance is executed. Title is acquired upon entry of the confirmation and registration of the foreclosure sale. Refusal of Purchaser to Pay The officer may again sell the property to the highest bidder and shall not be responsible for any Page 217 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 loss occasioned thereby. But the court may order the refusing purchaser to pay to the court the amount of such loss with costs. The court may punish him/her for contempt if he/she disobeys the order. The officer may then reject any subsequent bid of such purchaser who refuses to pay. (Sec. 20, Rule 39) If Judgment Obligee is Purchaser When the purchaser is the judgment obligee, and no third party claim has been filed, he/she need not pay the amount of the bid if it does not exceed the amount of his/her judgment. If it does, he/she shall pay only the excess. (Sec. 21, Rule 39) Adjournment of Sale a. With written consent of the judgment obligor and obligee or their duly authorized representatives: the officer may adjourn the sale to any date and time agreed upon by them. b. Without such written consent: the officer may adjourn the sale from day to day if it becomes necessary to do so for lack of time. (Sec. 22, Rule 39) REMEDIAL LAW Conveyance of Real Property; Certificate thereof Given to Purchaser and Filed with the Registry of Deeds The officer must give to the purchaser a certificate of sale. Contents of the CERTIFICATE OF SALE: 1. A particular description of the real property sold; 2. The price paid for each distinct lot or parcel; 3. The whole price paid by him/her; and 4. A statement that the right of redemption expires 1 year from the date of the registration of the certificate of sale. (Sec. 25, Rule 39) Note: The certificate of sale in this case is merely provisional. No court confirmation is required. Certificate of Sale Where Property is Claimed by Third Person The certificate of sale must make express mention of the existence of such third-party claim. (Sec. 26, Rule 39) 6. RULES ON REDEMPTION Conveyance to Purchaser of Personal Property Capable of Manual Delivery When the purchaser pays the purchase price, the officer making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him/her a certificate of sale. (Sec. 23, Rule 39) Conveyance to Purchaser of Personal Property NOT Capable of Manual Delivery When the purchaser pays the purchase price, the officer must execute and deliver a certificate of sale. The certificate conveys to the purchaser all the rights which the judgment obligor had in the property as of the date of the levy on execution or preliminary attachment. (Sec. 24, Rule 39) Note: The execution and delivery of a certificate of sale is mandatory for personal property not capable of manual delivery (unlike in conveyance of personal property capable of manual delivery). This constitutes symbolic delivery. Right of redemption is only for real properties. Who may redeem REAL property a. The JUDGMENT OBLIGOR; or b. His SUCCESSOR IN INTEREST in the whole or any part of the property; A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a REDEMPTIONER. (Sec. 27, Rule 39) Period to redeem A. Judgment Debtor: Within one (1) year from the date of registration of the certificate of sale. B. Redemptioner: a. Within one (1) year from the date of registration of the certificate of sale if he/she is the first redemptioner; and b. Within 60 days from the last redemption, if he/she is a subsequent redemptioner. (Sec. 28, Rule 39) Page 218 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Note: The periods for redemption are not extendible or interrupted. The parties may, however, agree on a longer period. In such case, it would be a conventional redemption. (Lazo v. Republic Surety & Insurance Co., G.R. No. 27365, 1970) The judgment debtor has always one year from the registration of the certificate of sale within which to redeem, regardless of whether there have been any prior redemptions and the date of such redemptions; and the moment said judgment debtor redeems, there shall be no further redemption. The redemptioner, on the other hand, must redeem within the one-year period, if he is the first redemptioner, and within 60 days from the last redemption, if he is a subsequent redemptioner, provided that the judgment debtor has not exercised his right of redemption. (Regalado, Remedial Law Compendium, Vol. I, Sixth Revised Edition, p. 457) Redemption Price The following are included in the redemption price to be paid by the redeeming party: A. If redeemed by the judgment obligor or first redemptioner: 1. Purchase price; 2. 1%interest per month thereon, up to the time of redemption; 3. Any amount of assessments or taxes which the purchaser may have paid thereon after purchase and interest on such last named amount at the same rate; and 4. If the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. B. If redeemed by subsequent redemptioners: 1. Amount paid on the last redemption; 2. 2% interest per month thereon; 3. Any amount of assessments or taxes which the last redemptioner may have paid thereon after redemption by him/her with interest on such last named amount; and 4. Amount of any liens held by said last redemptioner prior to his/her own, with interest. (Sec. 28, Rule 39) REMEDIAL LAW The formal offer to redeem accompanied by a bona fide tender of the redemption price within the period of redemption prescribed by law, is only essential to preserve the right of redemption for future enforcement even beyond such period of redemption. The filing of the action itself, within the period of redemption, is equivalent to a formal offer to redeem. (Tolentino v. Court of Appeals, G.R. No. 50405-06, 1981) Certificate of Redemption The person to whom redemption is made must execute and deliver a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. (Sec. 29, Rule 39) Proof of Redemption Required by Redemptioner A redemptioner must produce to the officer, or person from whom he/she seeks to redeem, and serve with his/her notice to the officer: i. A copy of the judgment or final order certified by the clerk of the court wherein the judgment or final order is entered; or, ii. If he/she redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds, or an original or certified copy of any assignment necessary to establish his/her claim; and iii. An affidavit executed by him/her or his/her agent, showing the amount then actually due on the lien. (Sec. 30, Rule 39) Manner of Using Premises Pending Redemption; Waste Restrained Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of WASTE on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice. (Sec. 31, Rule 39) BUT it is NOT waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption: a. To continue to use it in the same manner in which it was previously used; Page 219 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 b. To use it in the ordinary course of husbandry; or c. To make the necessary repairs to buildings thereon while he/she occupies the property. (Sec. 31, Rule 39) Rents, Earnings and Income of Property Pending Redemption All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his/her period of redemption. (Sec. 31, Rule 39) Deed and Possession to be Given at Expiration of Redemption Period; By Whom Executed or Given a. If NO redemption is made within one (1) year from the date of the registration of the certificate of sale - the purchaser is entitled to a conveyance and possession of the property; b. If redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired – the last redemptioner is entitled to the conveyance and possession. In all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by: a. The officer making the sale; or b. His/her successor in office. Recovery of Price if Sale Not Effective; Revival of Judgment The purchaser may recover the purchase price if: A. The purchaser or his/her successor-in-interest, fails to recover the possession thereof; or B. The purchaser or his/her successor-in-interest is evicted therefrom: a. In consequence of irregularities in the proceedings concerning the sale; or b. Because the judgment has been reversed or set aside; or c. Because the property sold was exempt from execution; or d. Because a third person has vindicated his/her claim to the property. REMEDIAL LAW The purchaser may: a. File a motion in the same action or in a separate action to recover from the judgment obligee the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor, or b. File a motion to have the original judgment revived in his/her name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. (Sec. 34, Rule 39) Note: The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more. Right to Contribution or Reimbursement Contribution and reimbursement may be obtained in a separate action, unless cross claims have been filed and adjudicated in the same action, in which case, execution may issue to compel contribution or reimbursement. (Feria and Noche, Civil Procedure Annotated, 2013 ed., vol. 2) 7. EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT IS SATISFIED Upon return of writ of execution, and judgment is still unsatisfied, the creditor may ask the court to require the debtor to appear and his/her property or income be examined. (Sec. 6, Rule 39) Limitation No judgment obligor shall be required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. 8. EXAMINATION OF DEBTORS OF THE JUDGMENT OBLIGOR The court may order to be examined any person or corporation who has property of the debtor, or is indebted to the debtor in order to bind the credits due to debtor. (Sec. 37, Rule 39) Enforcement of Attendance and Conduct of Examination A party or other person may be compelled, by an order or subpoena, to attend before the court or Page 220 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW commissioner to testify as provided in Sections 36 and 37. (Sec. 38, Rule 39) between the same parties involving a different cause of action. 9. EFFECT OF JUDGMENT AND FINAL ORDERS Res Judicata or Bar By Prior Judgment A judgment or decree of a court of competent jurisdiction concludes the litigation between the parties and their successors or privies and bars a new action or suit involving the same cause of action. Effects of Judgments In Rem: The judgment or final order is CONCLUSIVE upon the title to the thing, the will or administration or the condition, status or relationship of the person in case of a judgment or final order: a. Against a specific thing; or b. In respect to the probate of a will; or c. The administration of the estate of a deceased person; or d. In respect to the personal, political, or legal condition or status of a particular person or his relationship to another (Example: naturalization, adoption, and annulment of marriage) Exception: The probate of a will or granting of letters of administration shall only be PRIMA FACIE evidence of the death of the testator or intestate. (Sec. 47(a), Rule 39) Effects of Judgments In Personam In OTHER CASES, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, CONCLUSIVE between the parties and their successors in interest, by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity. (RES JUDICATA or BAR BY PRIOR JUDMENT) (Sec. 47(b), Rule 39) In ANY OTHER LITIGATION BETWEEN THE SAME PARTIES OR THEIR SUCCESSORS IN INTEREST, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (ESTOPPEL BY JUDGMENT OR CONCLUSIVENESS OF JUDGMENT) (Sec. 47(c), Rule 39) Judgment is deemed CONCLUSIVE when the issues actually and directly resolved in a former suit cannot again be raised in any future case Res Judicata v Conclusiveness of Judgment Res judicata (meaning, a “matter adjudged”) is a fundamental principle of law which precludes parties from re-litigating issues actually litigated and determined by a prior and final judgment. There is a bar by prior judgment where there is identity of parties, subject matter, and causes of action between the first case where the judgment was rendered and the second case that is sought to be barred. There is conclusiveness of judgment, on the other hand, where there is identity of parties in the first and second cases, but no identity of causes of action. (De Leon v Dela Llana, G.R. No. 212277, 2015) Estoppel by Judgment or Conclusiveness of Judgment Any right, fact or matter in issue which has been directly adjudicated upon or is necessarily involved in the determination of the action by a competent court is conclusively settled by the judgment or final order and CANNOT be litigated again by the parties and their privies. Generally, decisions in administrative cases are not binding on criminal proceedings. Thus, an absolution from a criminal charge is not a bar to an administrative prosecution or vice versa. However, this case does not involve an administrative charge stemming from the same set of facts involved in the criminal proceeding. The DARAB case involves a determination of whether there exists a tenancy relationship between X and Y, while the criminal case involves determination of whether X committed theft. However, the tenancy relationship is a factor in determining all the elements of theft. Hence, findings of fact of administrative agencies in the exercise of quasijudicial powers are entitled to respect if supported by substantial evidence. (People v Ligtas G.R. 200751, August 17, 2015) Page 221 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 10. ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS i. In case of a judgment or final order UPON A SPECIFIC THING:  The judgment or final order is conclusive upon the title to the thing. ii. In case of a judgment or final order AGAINST A PERSON:  The judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. iii. In EITHER case, the judgment or final order may be REPELLED by evidence of: a. Want of jurisdiction; b. Want of notice to the party; c. Collusion; d. Fraud; or e. Clear mistake of law or fact. Enforcement In order to enforce a foreign judgment in the Philippines, it is necessary to file an action based on said judgment. A foreign judgment is presumed valid and binding in the country from which it comes, until the contrary is show. (Feria and Noche, Civil Procedure Annotated, 2013 ed., vol. 2, p. 287) Recognition A defendant in a Philippine court may invoke a foreign judgment as res judicata in his defense. It is not necessary to institute a separate action or proceeding for recognition of the foreign judgment, as long as the parties opposed to the judgment on the grounds of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact, have the opportunity to challenge the foreign judgment. (Id. at p. 288) ———— end of topic ———— Page 222 of 711 PROVISIONAL REMEDIES Remedial Law ATENEO CENTRAL BAR OPERATIONS 2020/21 IV. PROVISIONAL REMEDIES TOPIC OUTLNE UNDER THE 2020 SYLLABUS IV. PROVISIONAL REMEDIES A. NATURE AND PURPOSE B. JURISDICTION OVER PROVISIONAL REMEDIES C. PRELIMINARY ATTACHMENT 1. Grounds for issuance of writ of attachment 2. Requisites 3. Issuance and contents of order of attachment; affidavit and bond 4. Rule on prior or contemporaneous service of summons 5. Manner of attaching real and personal property; when property attached is claimed by third person 6. Discharge of attachment and the counterbond 7. Satisfaction of judgment out of property attached 8. Compared with garnishment and levy on execution D. PRELIMINARY INJUNCTION 1. Definitions and differences: preliminary injunction, temporary restraining order, and status quo ante order 2. Requisites 3. Kinds of injunctions; kinds of temporary restraining orders 4. When writ may be issued, when writ may not be issued 5. Grounds for issuance of preliminary injunction 6. Grounds for objection to, or for the dissolution of injunction or restraining order 7. Duration of temporary restraining orders 8. Rule on prior or contemporaneous service of summons in relation to attachment E. RECEIVERSHIP 1. Cases when receiver may be appointed 2. Requisites 3. Requirements before issuance of an order 4. General powers of a receiver 5. Two kinds of bonds 6. Termination of receivership F. REPLEVIN 1. When may writ be issued 2. Requisites 3. Affidavit and bond; redelivery bond REMEDIAL LAW 4. Sheriffs duty in the implementation of the writ; when property is claimed by third party G. PROVISIONAL REMEDIES AND INTERIM RELIEFS UNDER SPECIAL LAWS AND RULES 1. Provisional remedies of the Family Courts 2. Human Security Act 3. Anti-Violence against Women and Children Act 4. Anti-Money Laundering Act 5. Financial Rehabilitation and Insolvency Act 6. Precautionary Hold Departure Orders Page 224 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 A. NATURE AND PURPOSE Nature of Provisional Remedies Provisional remedies are temporary and ancillary remedies to which party-litigants may resort for the preservation or protection of their rights or interests, and for no other purpose, during the pendency of the principal action. (FERIA & NOCHE, 2013) Purpose of Provisional Remedies i. To protect the rights of a party during the litigation; ii. To secure the judgment; iii. To preserve the subject matter of the litigation; iv. To preserve the status quo / status quo ante; v. To prevent very serious damage; or vi. To meet a very urgent need. (RIANO, 2016). Provisional Remedies under the Rules of Court 1. Preliminary Attachment (Rule 57); 2. Preliminary Injunction (Rule 58); 3. Receivership (Rule 59); 4. Replevin (Rule 60); and 5. Support Pendente Lite (Rule 61). Note: This enumeration is not exclusive. (Lorenzo Shipping Corp. v. Villarin, G.R. Nos. 175727 & 178713, 2019) In one case, the Court upheld the validity of an order of the trial court to the petitioner to make a deposit of the down payment paid by the respondent to the former pursuant to an annulment of a contract of sale. In upholding the order, the Court mentioned that there is a hiatus in the law and in the Rules of Court. If left alone, the hiatus will result in unjust enrichment to the petitioner at the expense of respondent. The hiatus may also imperil restitution. (Reyes v. Lim, G.R. No. 134241, 2003) Other Laws Providing For Provisional Remedies 1. VAWC (R.A. 9282); 2. Marital cases (nullity, annulment, legal separation) (A.M. 02-11-12-SC); 3. Human Security Act of 2007 (R.A. 9372); 4. Anti-Money Laundering Act of 2001 (R.A. 9160); REMEDIAL LAW 5. Financial Rehabilitation an Insolvency Act of 2010 (R.A. 10142); 6. Special rules under Alternative Dispute Resolution Act (R.A. 9285); 7. Custody of minors (A.M. 03-04-04-SC); 8. Provisional remedies relative to the rule on Writ of Amparo and Writ of Habeas Data; 9. Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC); 10. Precautionary Hold Departure Orders (A.M. No. 18-07-05-SC). B. JURISDICTION OVER PROVISIONAL REMEDIES The court which has jurisdiction over the main action is the court which may grant or issue a provisional remedy. (RIANO, 2009) All inferior courts can grant all appropriate provisional remedies. The enforcement of said writs outside the territorial jurisdiction of the inferior court no longer requires the approval of the RTC. Except for the provisional remedy of support pendente lite, because the main case wherein this remedy may be involved is within the jurisdiction of the Regional Trial Court. (Regalado, 2008) C. PRELIMINARY ATTACHMENT Nature of Preliminary Attachment Attachment is a provisional remedy by which the property of an adverse party is taken into legal custody, either at the commencement of an action or at any time thereafter, as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party. (Olib v. Pastoral, G.R. No. 81120, 1990) Preliminary attachment, under Rule 57, is an ancillary remedy applied not for its own sake but to enable the attaching party to realize upon the relief sought and expected to be granted in the main or principal action; it is a measure auxiliary or incidental to the main action. Page 225 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 As such, it is available during its pendency which may be resorted to by a litigant to preserve and protect certain rights and interests during the interim, awaiting the ultimate effects of a final judgment in the case. (Lim, Jr. v. Sps. Lazaro, G.R. No. 185734, Jul. 3, 2013) It is a proceeding quasi in rem. (Banco-Español Filipino v. Palanca, G.R. No. L-11390, Mar. 26, 1918) The attachment of the property of the defendant converts an ordinary action in personam into an action quasi in rem. In such case, jurisdiction over the person of the defendant is not required as long as the court acquires jurisdiction over the res. (Biaco v. Countryside Rural Bank, G.R. No. 161417, 2007) Attachment is purely a statutory remedy, and it cannot exist without a statute. Its legal bases for application include Rule 57 of the Rules of Court and Article 1177 of the Civil Code, which authorizes a creditor to pursue the property of the debtor. (RIANO, 2009, p. 538) Who May Apply For a Writ of Preliminary Attachment A plaintiff or any proper party may have the property of the adverse party attached. (Sec. 1, Rule 57) Thus, a writ of preliminary attachment may be issued in favor of a defendant who sets up a counterclaim. (De Borja v. Platon, G.R. No. 48080, 1942) Purposes of Preliminary Attachment i. To seize the property of the debtor before final judgment and put the same in custodia legis even while the action is pending for the satisfaction of a later judgment. (Insular Bank of Asia and America v. Court of Appeals, G.R. No. L-61011, 1990) ii. To enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be effected. (Philippine Commercial International Bank v. Alejandro, G.R. No. 175587, 2008) REMEDIAL LAW Kinds of Attachments 1. PRELIMINARY ATTACHMENT - issued at the commencement of the action or at any time before entry of judgment as security for the satisfaction of any judgment that may be recovered. The court takes custody of the property. (Sec. 1, Rule 57); 2. GARNISHMENT - plaintiff reaches a credit/s belonging to the defendant and owing to him from a third person who is a stranger to the litigation. It does not involve actual seizure of the property; it simply impounds the property in the garnishee’s possession and maintains the status quo until the main action is finally decided. (Sec. 7(d), Rule 57; Sec. 9(c), Rule 39); 3. LEVY ON EXECUTION - the writ issued by the court after judgment by which the property of the judgment obligor is taken into custody of the court before the sale of the property on execution. (Sec. 9[b], Rule 39) When Writ May be Availed of An application for the issuance of a writ of attachment may be filed: a. At the commencement of the action; or b. At any time before entry of judgment. (Sec. 1, Rule 57). Before the determination of the liability of the adverse parties, the writ of preliminary attachment may properly issue. The attachment does not affect the decision of the case on the merits, the right to recover judgment on the alleged indebtedness and the right to attach the property of the debtor being entirely separate and distinct. As a rule, the judgment in the main action neither changes the nature nor determines the validity of the attachment. (Peroxide Philippines Corp. v. Court of Appeals, G.R. No. 92813, 1991) Effectivity of Preliminary Attachment The lien continues until the debt is paid, or the sale is made under execution issued on the judgment, or until the judgment is satisfied, or the attachment discharged or vacated in the same manner provided by law. (Lim, Jr. v. Sps. Lazaro, G.R. No. 185734, 2013) Page 226 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 1. GROUNDS FOR ISSUANCE OF PRELIMINARY ATTACHMENT The following are the grounds for the issuance of a preliminary attachment: A. In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict, or quasi-delict against a party who is about to depart from the Philippines with the intent to defraud his creditors; B. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; C. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed or disposed of to prevent its being found or taken by the applicant or an authorized person; D. In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; E. In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; and F. In an action against a party who does not reside in the Philippines, or on whom summons may be served by publication. (Sec. 1, Rule 57) Note: In grounds 1 to 5, fraud (e.g., in fraud of creditors, fraudulent detention or removal, embezzlement, etc.) is an essential requirement. Further, the enumeration in Rule 57, Sec. 1 is exclusive. Also Note: Insolvency is not a ground for issuance of a writ. The fact that the defendant company’s bank account has been reduced to nil is not a ground for the issuance of attachment. (Aboitiz v. Cotabato Bus Co., G.R. No. L-35990, Jun. 17, 1981). REMEDIAL LAW But the mere fact of failure to pay after the obligation to do so has become due and despite several demands is not enough to warrant the issuance of a writ of preliminary attachment. (Mt. Banahaw Wood Industries, Inc. v. Naga Dynasty Allied Marketing Corp., G.R. No. 211179, 2019) Two Kinds of Fraud Contemplated in Rule 57, Section 1(d): Fraud in Contracting & Fraud in Performance of the Obligation 1. Dolo causante – fraud to induce another to enter into a contract which renders it voidable. (Articles 1330, 1338, 1390, Civil Code); 2. Dolo incidente – fraud employed in the fulfillment of the obligation which obliges the payment of damages (Article 1344, Civil Code) Fraud Committed Need Not be Criminal Fraud The conduct of the corporate officer was more than an irregularity (i.e., unauthorized taking of corporate funds and appropriating for its own use); and while it is not sufficiently serious to constitute criminal fraud, it is undoubtedly a fraud of a civil character because it is an abuse of confidence to the damage of the corporation and its stockholders and constitutes one of the grounds enumerated for the issuance of a preliminary attachment. (Olsen and Co. v. Olsen, G.R. No. 23237, 1925) Fraud Must be Alleged With Particularity A writ of preliminary attachment is too harsh a provisional remedy to be issued based on mere abstractions of fraud. Rather, the rules require that for the writ to issue, there must be a recitation of clear and concrete factual circumstances manifesting that the debtor practiced fraud upon the creditor at the time of the execution of their agreement in that said debtor had a preconceived plan or intention not to pay the creditor. (Equitable Bank v. Special Steel, G.R. No. 175350, 2012) Example of Fraud As a security to the loan contracted, defendant offered a fake title and a vehicle heavily mortgaged. He subsequently sold the vehicle and his two condo units before the case was filed against him. (Liberty Insurance v. CA, G.R. No. 104405, 1993) Page 227 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Removal of Property Under Sec. 1(e) of Rule 57, two requisites must be satisfied to justify a preliminary attachment: a. There is a removal or disposal of the property; and b. The removal or disposal must be with intent to defraud the creditor. (RIANO, 2009, p. 544). Mere removal or disposal of property, by itself, is not ground for issuance of preliminary attachment, notwithstanding absence of any security for the satisfaction of any judgment against the defendant. The removal or disposal, to justify preliminary attachment, must have been made with intent to defraud defendants’ creditors. (Carpio v. Macadaeg, G.R. No. 17797, 1963). The execution of a mortgage in favor of another creditor is not conceived by the Rules as one of the means of fraudulently disposing of one’s property. By mortgaging a piece of property, a debtor merely subjects it to a lien but ownership is not parted with. (Adlawan v Torres, G.R. Nos. 65957-58, July 5, 1994) Service of Summons By Publication See earlier discussion on Service of Summons by Publication. Rule 14, Sec. 16 of the Rules of Court expressly states that in any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, with leave of court, be effected upon him by publication in a newspaper of general circulation. Thus, the rule applies to any action, whether in personam, in rem, or quasi in rem. (Santos v. PNOC, G.R. No. 170943, 2008) Note: Substituted service is the normal mode of service of summons that will confer jurisdiction on the court over the person of residents temporarily out of the Philippines. Hence, the court may acquire jurisdiction over an action in personam by mere substituted service without need of attaching the property of the defendant. (PCIB v Alejandro, G.R. No. 177857, 2007) Under this ground, the purpose of the attachment is to reach his property in the Philippines and to REMEDIAL LAW dispense with the need for acquiring jurisdiction over his person. (RIANO, 2009, p. 545). 2. REQUISITES 1. Application - An application may be filed at the commencement of the action, or at any time before entry of judgment. (Rule 57, Sec. 1) If applied for at the commencement of the action, it must be incorporated in a verified complaint alleging all the grounds relied upon and complying with all the requisites for the grant of the application. Here, the writ may be granted ex parte or even before summons is served. If not applied for at the commencement of the action, it must only be applied for after service of summons upon the defendant. (Davao Light & Power Co., Inc. v. Court of Appeals, G.R. No. 93262, 1991). See discussion on Prior or Contemporaneous Service of Summons for Rules on Implementation/Execution of Writ of Attachment. 2. Affidavit – To ensure that the applicant states the truth by requiring him to allege the presence of all the legal requirements under oath. The affidavit is the foundation of the writ and if none is filed or one is filed but wholly fails to set out some facts required by law to be stated therein, there is no jurisdiction and the proceedings are null and void. (Jardine-Manila Finance, Inc. v. Court of Appeals, G.R. No. 55272, 1989) 3. Attachment Bond – Executed in favor of the adverse party in an amount fixed by the court, the bond is conditioned to pay all the costs which will be adjudged the adverse party and all damages he may sustain if the court should later rule that the applicant is not entitled to the attachment. (Sec. 4, Rule 57). The surety is liable for all damages and not only for damages sustained during the appeal as this is its commitment. (Phil. Charter Insurance v CA, G.R. No. 88379, 1989) The writ will not be issued if a real estate mortgage exists to secure the obligation. (Salgado v. CA, G.R. No. 55381, 1994) Page 228 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW 3. ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT; AFFIDAVIT AND BOND demand or the value of the property attached, EXCLUSIVE of costs. (Secs. 2 and 3, Rule 57). Three Stages in the Grant of Preliminary Attachment I. The court issues the order granting the application; II. The writ of attachment is issued pursuant to an order of the court granting the writ; and III. The writ is enforced/implemented. (Torres v. Satsatin, G.R. No. 166759, 2009). Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. (Rule 57, Sec. 2) Note: For Stages 1 and 2, it is NOT necessary that jurisdiction over the person of the defendant be first obtained. But in Stage 3, the court must have acquired jurisdiction over the defendant, because without such jurisdiction, the court has no power or authority to act in any manner against the defendant. (Cuartero v. CA, G.R. No. 102448, 1992). Hence, when the sheriff or other proper officer commences implementation of the writ of attachment, it is essential that he serve on the defendant not only a copy of the applicant's affidavit and attachment bond, and of the order of attachment, as explicitly required by Section 5 of Rule 57, but also the summons addressed to said defendant. (Davao Light & Power Co., Inc. v. Court of Appeals, G.R. No. 93262, 1991). But prior or contemporaneous service of summons may be dispensed with under certain exceptions. (Sec. 5, Rule 57; see further discussions on Rule on Prior or Contemporaneous Service of Summons). Issuance of the Order An order of attachment may be issued either ex parte or upon motion with notice and hearing by: a. The court in which the action is pending; b. The Court of Appeals; or c. The Supreme Court. (Sec. 2, Rule 57). The order must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued (must not be exempt from execution) as may be sufficient to satisfy the applicant’s demand, UNLESS such party makes a deposit or gives a bond, which may be the amount sufficient to satisfy the applicant’s Ex parte grant of the writ is allowed because it is possible that during the course of the hearing, the part against whom the writ is sought may dispose of his property or abscond before the writ is issued. (Filinvest v. Relova, G.R. No. L-50378, 1982) Affidavit An order of attachment shall be granted only when it appears that it is supported by an affidavit which contains: 1. A sufficient cause of action exists; 2. The case is one of those mentioned in Sec. 1, Rule 57; 3. There is no other sufficient security for the claim sought to be enforced by the action; and 4. The amount due to the applicant is as much as the sum for which the order is granted above all legal counterclaims. (Sec. 3, Rule 57). The affidavit may be made by: a. The applicant of the writ of preliminary attachment; or b. Some other person who personally knows the facts. (Id.). It is not enough to state that a sufficient cause of action exists. The applicant must state the facts constituting the cause of action, as well as facts, i.e. place, time, date, to illustrate the grounds for attachment relied upon. A bare allegation that an encumbrance of property is in fraud of creditors does not suffice. Factual bases for such conclusion must be clearly averred. (Adlawan v Torres, G.R. No. 65957-58, 1994) Bond The party applying for the order of attachment must thereafter give a bond which is: 1. Executed to the adverse party; 2. In the amount fixed by the court in its order granting the issuance of the writ; 3. Conditioned that the applicant will pay all the costs which may be adjudged to the adverse Page 229 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto. (Sec. 4, Rule 57) 5. MANNER OF ATTACHING REAL AND PERSONAL PROPERTY; WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON The affidavit and the bond must be duly filed with the court before the writ of attachment issues. (Sec. 3, Rule 57) Manner of Attaching Property The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, such property: 1. Only so much of the property sufficient to satisfy the applicant’s demand; 2. That which is found in the Philippines; 3. That which belongs to the party against whom the writ is issued; and 4. That which is not exempt from execution. (Sec. 5, Rule 57). 4. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS General Rule: No levy on attachment pursuant to the writ issued under Section 2, Rule 57 shall be enforced unless preceded, or contemporaneously accompanied by service upon the defendant within the Philippines of the following: 1. Summons; 2. A copy of the complaint; 3. The application for attachment; 4. The applicant’s affidavit and bond; and 5. The order and writ of attachment. (Sec. 5, Rule 57; Davao Light and Power Co., Inc. v. CA, G.R. No. 147058, 2006) Exceptions: Prior or contemporaneous service of summons shall not apply when: a. Summons could not be served personally or by substituted service despite diligent efforts; b. Defendant is a resident of the Philippines temporarily absent therefrom; c. Defendant is a non-resident of the Philippines; or d. The action is one in rem or quasi in rem. (Sec. 5, Rule 57). Note: In exceptions 1 to 3, the principal action may be an action in personam. If the court issues a writ of preliminary attachment, it converts the action in personam into an action quasi in rem. Recall: In actions in rem and quasi in rem, jurisdiction over the person of the defendant is not required. What is required is jurisdiction over the res although summons must also be served on the defendant in order to satisfy due process requirements. (See De Pedro v. Romasan Dev’t, G.R. No. 194751, 2014) PROCEDURE FOR ATTACHMENT OF REAL AND PERSONAL PROPERTY Kinds of Real Property Covered Real property, or growing crops thereon, or any interest therein which is: a. Standing upon the record of the registry of deeds of the province in the name of the party against whom attachment is issued; or b. Not appearing at all upon such records; or c. Belonging to the party against whom attachment is issued and held by any other person; or d. Standing on the records of the registry of deeds in the name of any other person. (Sec. 7(a), Ryle 57). Procedure for Attachment of Real Property Real property is attached by: 1. Filing with the registry of deeds: i. A copy of the order; ii. A description of the property attached; and iii. A notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached; and 2. Leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. (Id.) Where the property has been brought under the operation of either the Land Registration Act or the Page 230 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Property Registration Decree, the notice shall contain a reference to: 1. The number of the certificate of title; 2. The volume and page in the registration book where the certificate is registered; and 3. The registered owner or owners thereof. (Id.) Note: The registrar of deeds must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. (Id.) If the attachment is not claimed on the entire area covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment. (Id.) Attachment of Personal Property Capable of Manual Delivery Attachment shall be made by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor. (Sec. 7(b), Rule 57). Attachment of Stocks or Shares Attachment shall be made by leaving with the president or managing agent thereof: 1. A copy of the writ; AND 2. A notice stating that the stock or interest of the party against whom the attachment is issued, is attached pursuant to the writ. (Sec. 7[c], Rule 57). Attachment of Debts and Credits, Bank Deposits, Financial Interest, Royalties, Commissions, and Other Personal Property Not Capable of Manual Delivery Attachment shall be made by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ. (Sec. 7(d), Rule 57). REMEDIAL LAW Attachment of Interest of the Party Against Whom Attachment is Issued in Property Belonging to the Estate of the Decedent, Whether as Heir, Legatee, or Devisee Attachment is made by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. (Sec. 7(e), Rule 57). A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee, or devisee concerned. (Id.). Attachment of Property in Custodia Legis If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property. (Sec. 7, Rule 57). Property legally attached is property in custodia legis and cannot be interfered without the permission of the proper court, but this is confined to cases where the defendant has proprietary interest. Otherwise, the attachment will be void. (Traders Royal Bank v. IAC, G.R. No. L-66321, 1984) Effect of Attachment of Debts, Credits, Similar Personal Property Those who have in their possession or control any credits or other similar personal property which belongs to the party against whom the attachment is issued, or owing any debts to him, shall be liable to the applicant for the amount of such credits, debts or other similar property. (Sec. 8, Rule 57). Such liability shall accrue from the time of service upon him of the copy of the writ of attachment and until the attachment is discharged, or any judgment recovered by him is satisfied, UNLESS such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment. (Id.). Page 231 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Effect of Attachment of Interests in Property Belonging to the Estate of a Decedent The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall NOT impair the powers of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. (Sec. 9, Rule 57). Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, and in the order made upon such petition, distribution may be awarded to such heir, legatee or devisee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. (Id.). It is not necessary to serve summons upon the garnishee to acquire jurisdiction upon him. All that is required is service upon him of the writ of garnishment. (Perla Compania de Seguros v. Ramolete, G.R. No. L-60887, 1991) Examination of Party Whose Property is Attached and Persons Indebted to Him or Controlling His Property Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party, may: a. Be required to attend before the court in which the action is pending, or before a commissioner appointed by the court, and be examined on oath; or b. Be required to attend for the purpose of giving information respecting his property, and may be examined on oath. (Sec. 10, Rule 57). The court may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person so required to attend before the court, to be delivered to the clerk of the court or sheriff on such terms as may be just, having reference to any lien thereon or claim against the same, to await the judgment in the action. (Id.). When Attached Property May be Sold REMEDIAL LAW The attached property may be sold by order of the court whenever it shall be made to appear that: a. The property is perishable, or b. The interests of all the parties to the action will be subserved by the sale thereof. (Sec. 11, Rule 57). The court may order such property to be sold at a public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. (Id.). Such order to sell shall be made: 1. By the court where the action is pending; and 2. Upon notice and hearing to both parties. (Id.). Remedies of the Third Person Claiming a Property Subject of a Writ of Attachment a. File a terceria by executing an affidavit of his title or right of possession over the property levied on attachment and serving the same to the office making the levy and the adverse party or third party claim (Sec. 16, Rule 39; Sec. 14, Rule 57); b. A writ of replevin (Sec. 7, Rule 60); c. Motion for summary hearing on his claim for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment, more specifically if he has indeed levied on attachment and taken hold of property not belonging to the plaintiff; d. File a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. The remedies are CUMULATIVE and any one of them may be resorted to without availing of the other remedies. (Ching v. CA, G.R. No. 124642, 2004). Note: In that in item no. 3 above, it does not refer to intervention under the Rules of Court. It is rather simply an invocation of the Court's power of supervision and control over the actuations of its officers and employees to the end that it be assured that these conform to the law. (Ong v. Tating, G.R. No. L-61042, 1987). In resolving the motion of the third party, the court does not and cannot pass upon the question of the Page 232 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW title to the property with any character of finality. It can treat the matter only insofar as may be necessary to decide if the sheriff has acted correctly or not. If the claimant’s proof does not persuade the court of the validity of the title, or right of possession thereto, the claim will be denied by the court. (Ching v. CA, G.R. No. 124642, 2004) Nevertheless, nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. (Id.) Terceria A stranger to the action, i.e., a person not a party to the action, whose property is seized pursuant to the writ of delivery (attachment), is accorded the remedy known as a terceria, a third party claim. (La Tondeña Distillers, Inc. v. Court of Appeals, G.R. No. 88938, 1992) Exemption from Bond Requirement in Terceria When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of the aforementioned bond shall not be required. (Id.) Under the remedy of terceria, the sheriff shall not be bound to keep the property under attachment if the property attached is being claimed by any person, other than whom the attachment, or his was issued against and such person: 1. Makes an affidavit of his title thereto or right of possession thereof; 2. The affidavit states the grounds of the right or title; 3. Such affidavit is served upon the sheriff while he is still in possession of the attached property; and 4. A copy of the affidavit is served upon the attaching party. (Sec. 14, Rule 57) However, the sheriff shall be bound to keep the property if the attaching party or his agent shall file a bond, on demand of the sheriff and approved by the court, to indemnify the third-party claimant. The value of the bond shall not be less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. (Id.) The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if the aforementioned bond shall be filed. (Id.) No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within 120 days from the date of the filing of the bond. (Id.) In case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. (Sec. 14, Rule 57) 6. DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND Grounds to Discharge Preliminary Attachment Preliminary attachment shall be discharged when it is established that any of the following grounds exist: a. The debtor has posted a counterbond or has made the requisite cash deposit (Sec. 12, Rule 57) b. The attachment was improperly or irregularly issued as where there is no ground for attachment under Section 1 of this Rule (Sec. 13, Rule 57); c. The bond filed is defective or insufficient (Sec. 13, Rule 57); d. The attachment is excessive, but the discharge shall be limited to the excess (Sec. 13, Rule 57); e. The property attached is exempt from execution, hence exempt from preliminary attachment (Secs. 2 & 5, Rule 57); or f. The judgment is rendered against the attaching creditor. (Sec. 19, Rule 57) Note: Attachment is IRREGULAR when any of the six (6) grounds for attachment are present but attachment was not made according to the rules. Page 233 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 When the preliminary attachment is issued upon a ground which is at the same time the central issue of applicant's cause of action, the defendant is not allowed to file a motion to dissolve the attachment under Section 13 of Rule 57 by offering to show the falsity of the factual averments in the plaintiffs application and affidavits on which the writ was based - and consequently that the writ based thereon had been improperly or irregularly issued - the reason being that the hearing on such a motion for dissolution of the writ would be tantamount to a trial of the merits of the action. (Watercraft Venture v. Wolfe, G.R. No. 181721, 2015) When Counterbond is Filed i. Before enforcement of the writ (Sec. 2, Rule 57); ii. During enforcement of the writ (Sec. 5, Rule 57); iii. After enforcement of the writ. (Sec. 12, Rule 57) Note: In case of item 3 above, the moving party may either file a counterbond or make a cash deposit. (Id.) Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment the balance shall be refunded to the depositor or his assignee. (Sec. 18, Rule 57). If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. (Id.). Counterbond is Discharged Either: a. Wholly when there is full satisfaction of the judgment or court finally absolved surety; or b. In part with the security given. (Sec. 12, Rule 57) Distinction between Attachment Bond ATTACHMENT/ APPLICANT’S BOND Counterbond and COUNTERBOND Purpose Purpose of Counterbond The purpose of a counterbond is to secure the payment of any judgment that the attaching party may recover in the action. (Secs. 12 and 17, Rule 57) Notice and Hearing Discharge is not automatic. There must be due notice served on the attaching party and hearing and an order issued by the court. Should it involve a cash deposit, a notice of the deposit shall likewise be served on the attaching party. (Sec. 12, Rule 57). To pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto. (Secs. 4 and 12, Rule 57) To secure the payment of any judgment that the attaching party may recover in the action. (Secs. 12 and 17, Rule 57) When Discharged Amount of the Counterbond or Cash Deposit It shall be in an amount, exclusive of cost, equal to: a. That fixed by the court in the order of attachment, exclusive of costs; or b. The value of the particular property, if the attachment sought to be discharged is with respect to a particular property, as determined by the court. (Secs. 2 and 12, Rule 57) Not discharged even if attachment discharged, since damage may be adjudged by the court to the adverse party/defendant. (Uy Kimpang v. Javier, G.R. No. L-43461, Dec. 16, 1937) Not discharged until full satisfaction or Court finally absolved surety even if case dismissed and reinstated or attachment is wrongfully issued. (Id.) Cash Deposit Page 234 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Claimed Claim only after due notice to the surety and proper hearing and ruling shall be included in the judgment on the main case. Notice to surety and summary hearing; after which, the surety becomes charged and liable to the judgment obligee. Who Files Applicant files the Adverse party files the bond. (Sec. 3, Rule 57). counterbond. (Sec. 12, Rule 57). Procedure for Discharge of Writ of Attachment Upon Giving Counterbond 1. The party whose property has been attached, or the person appearing on this behalf may file a motion to discharge the attachment 2. Such party may either: a. Give cash deposit with the court from which the writ was issued; or b. Give a counter-bound executed to the attaching party. 3. Notice of deposit shall be served on the attaching party 4. After notice and hearing, the court shall order discharge of the attachment. (Sec. 12, Rule 57) Filing of a Counterbond Not a Waiver to Claim Damages Under the Attachment Bond The filing of a counter-bond does not relieve applicant’s attachment bond’s liability for damages. Liability attaches if the plaintiff is not entitled to the attachment because the requirements entitling him to the writ are wanting, or if the plaintiff has no right to the attachment because the facts stated in his affidavit, or some of them are untrue. (Calderon v IAC, G.R. No. 74696, 1987) The attachment debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by simply availing himself of one way of discharging the attachment writ, instead of the other. (Id.). Counterbond Cannot be Cancelled on the Ground That Writ is Improperly Issued REMEDIAL LAW Obligors in the bond are absolutely liable for the amount of any judgment that the plaintiff may recover in the action without reference to the question of whether the attachment was rightfully or wrongfully issued. The same rule applies to the plaintiff’s attachment bond. (Uy Kimpang v. Javier, G.R. No. L-43461, 1937) The liability of the surety on the counterbond subsists until the Court shall have finally absolved the defendant from the plaintiff’s claims. The liability of the surety on the bond subsists because the final reckoning is when the Court shall finally adjudge that the attaching creditor was not entitled to the issuance of the attachment writ. (Mindanao Savings and Loan Assoc. vs. CA, G.R. No. 84481, 1989) Discharge of An Attachment Improperly or Irregularly Issued or Enforced or Attachment Bond is Insufficient How to obtain discharge: Motion and hearing is necessary (Secs. 12 & 13, Rule 57) When filed: Before or after levy or after release of attached property. (Sec.13, Rule 57) Burden of proof: The attaching creditor must show that the writ was properly issued. (Filinvest Credit Corp. v. Relova, G.R. No. L-50378, 1982). When Discharge Due to Improper Issuance is Not Available When the ground for the issuance of the writ forms the core of the complaint, the writ cannot be discharged until after trial on the merits. This is because the court cannot allow the litigation of the main issue of the case prior to trial. (Liberty Insurance Corp. v CA, G.R. No. 104405, 1993) Once the writ of attachment is lifted due to the posting of a counterbond, the adverse party may no longer file a motion to lift the attachment on the ground that it was improperly or irregularly issued, since there is no longer anything to lift. (Mindanao Savings & Loan Association v. Mercado, G.R. No. 84481, 1989) HOWEVER, this does not mean that the adverse party has waived all irregularity or impropriety in the issuance of the writ FOR PURPOSES OF CLAIMING DAMAGES. (Calderon v IAC, G.R. No. 74696, 1987). Page 235 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Damages Recoverable by the Attachment Defendant Where there is wrongful attachment, the attachment defendant may recover actual damages even without proof that the attachment plaintiff acted in bad faith in obtaining the attachment. However, if it is alleged and established that the attachment was not merely wrongful but also malicious, the attachment defendant may recover moral damages and exemplary damages as well. (Spouses Yu v. Ngo Yet Te, G.R. No. 155868, 2007). Either way, the wrongfulness of the attachment does not warrant the automatic award of damages to the attachment defendant; the latter must first discharge the burden of proving the nature and extent of the loss or injury incurred by reason of the wrongful attachment. (Id.). The Liability of The Attaching Party Not Limited to The Amount of Attachment Bond Should the bond or deposit given by the attaching party be insufficient or fails to fully satisfy the award, the party against whom attachment was issued is not prevented from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution. (Sec. 20, Rule 57). However, the judgment award should be first executed on the attachment bond. Only if the attachment bond is insufficient to cover the judgment award can the attaching party be held liable. (Phil-Air Conditioning Center v. RCJ Lines, G.R. No. 193821, 2015). However, the surety’s liability is limited to the amount of the bond. (Philippine Charter Insurance Corp. v. Court of Appeals, G.R. No. 88379, 1989). Discharge Due to Excessive Attachment The attachment may also be discharged if the same is excessive, but the discharge shall be limited to the excess. (Sec. 13, Rule 57). However, the whole attachment may be discharged if the same is excessive and such defect is not cured despite the court’s order. (Id.). REMEDIAL LAW The party seeking the discharge must also file a motion in the court where the action is pending, and due notice and hearing shall also be observed. (Id). 7. SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED Satisfaction of Judgment by Sheriff If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner: 1. By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, necessary to satisfy the judgment; 2. If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance; 3. By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee. (Sec. 15, Rule 57) Sheriff’s Return The sheriff, after paying the obligee, shall make a return in writing to the court of his proceedings and furnish the parties with copies thereof. (Id.). Balance and Excess If after realizing upon all the property attached, including the proceeds of any debts or credits collected, and applying the proceeds to the satisfaction of the judgment less the expenses of proceedings upon the judgment any balance shall remain due, the sheriff must proceed to collect such balance as upon ordinary execution. (Sec. 16, Rule 57). The sheriff, upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment. (Id.). Page 236 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Recovery Upon the Counterbond In order that the judgment creditor may recover from the Surety on the counterbond, it is necessary: 1. That judgment has become executory (Sec. 17, Rule 57) or that execution be first issued against the principal debtor and that such execution was returned unsatisfied in whole or in part; (Towers Assurance v. Ororama Supermart, G.R. No. L-45848, 1977) 2. That the creditor made a demand upon the surety for the satisfaction of the judgment; and 3. The surety be given notice and a summary hearing in the same action as to his liability for the judgment under his counterbond. (Sec. 17, Rule 57). Note: The first requisite is not applicable where a solidary liability for the satisfaction of a judgment is involved. The surety is not entitled to the exhaustion of properties of the principal debtor. (Towers Assurance v. Ororama Supermart, G.R. No. L-45848, 1977). 8. COMPARED WITH GARNISHMENT AND LEVY ON EXECUTION Table of Comparison: Preliminary Attachment, Levy, and Garnishment PRELIMINARY LEVY ON EXECUTION ATTACHMENT BASIS Rule 57 Rule 39, Section 9 (b) NATURE Provisional and ancillary remedy. Means of execution of money judgment. DEFINITION Applied for and may be issued at the commencement of the action or at any time before entry of judgment, to have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered. Available after the judgment has become executory by which the property of the judgment debtor is taken into custody of the court before the sale of the property on execution for the satisfaction of a final judgment. GARNISHMENT Rule 57, Section 7 (c) and (d); Rule 39, Section 9 (c) A species of attachment. A specie of attachment in which the attaching party seeks to subject to his claim either the property of the adverse party, in the hands of a third person called the garnishee, or the money which said third person owes the adverse party. A forced novation by the substitution of creditors. The judgment debtor/defendant, who is the original creditor of the garnishee is, through service of a writ of garnishment, substituted by the judgment creditor/plaintiff who thereby becomes the creditor of the garnishee. Page 237 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 PURPOSE 1. To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying said judgment; and 2. To acquire jurisdiction over the action by actual or constructive seizure of the property in those instances where personal or submitted service on the defendant cannot be effected. SUBJECT MATTER Real or personal property of the adverse party. PROPERTIES EXEMPTED 1. 2. 3. 4. 5. 6. A means of executing a money judgment where if the judgment obligor cannot pay all or part of the obligation in cash, certified bank check, or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. Any available property of the adverse party. To reach credits belonging to the judgment debtor until the plaintiff can obtain a judgment and have such property applied to its satisfaction. Money, stocks or shares, an interest in stocks or shares of any corporation or company, debts and credits, bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery in possession or control of third parties. The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; Ordinary tools and implements personally used by him in his trade, employment, or livelihood; Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; His necessary clothing and articles for ordinary personal use, excluding jewelry; Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; Provisions for individual or family use sufficient for four months; Page 238 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REQUISITES/ PROCEDURE REMEDIAL LAW 7. The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three thousand pesos in value; 8. One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; 9. So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family; 10. Lettered gravestones; 11. Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; 12. The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; 13. Properties specially exempted by law. (Sec. 13, Rule 39) 1. The case must be 1. The sheriff shall 1. The sheriff will any of those where demand payment of serve the writ and a preliminary money judgment notice upon the attachment is either in cash, person owing such proper; certified bank debts (garnishee) 2. The applicant must check, or any other or having in his file a motion; mode of payment possession or 3. The applicant must that is acceptable to control such credits; show by affidavit that the judgment 2. The garnishee shall there is no sufficient obligee; make a written security for the claim 2. If the judgment report to the court sought to be obligor cannot pay within 5 days from enforced; that the by these methods, service of the amount claimed in he can exercise his notice, stating the action is as much option to choose whether or not the as the sum of which which among judgment obligor the order is granted personal properties has sufficient funds above all can be levied upon; or credits; and counterclaims; 3. If he does not 3. The garnished 4. The applicant must exercise this option, amount shall be post a bond he waives such delivered directly to executed to the right and the sheriff the judgment oblige adverse party can now first levy within 10 days from (attachment bond). his personal service of notice. properties, if any, and then the real properties if the personal properties are insufficient to satisfy the judgment; 4. The sheriff is mandated to file with the Register of Deeds a copy of the Page 239 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 WHICH COURT MAY GRANT 1. Court where action is pending; 2. The CA, on appeal, even if action is pending in the lower court; or 3. The SC, on appeal, even if action is pending in the lower court. BOND REQUIREMENT Bond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the granting of provisional remedy prayed for, if the court shall finally adjudge that the applicant was not entitled thereto. The grant is addressed to judicial discretion. GRANT order, description of the attached property, and notice of attachment; and 5. Leave with the occupant of the property copy of the same order, description, and notice 1. Court of origin, when case is finally resolved therein or in case of discretionary execution, while it has jurisdiction over the case and is in possession of the original record or record on appeal; 2. Appellate court, when appeal is duly perfected and finally resolved, or in case of discretionary execution, after the trial court has lost jurisdiction and possession of the original record or record on appeal. No bond required. The grant is a matter of right, unless discretionary execution is sought, which is 1. If used as mode of preliminary attachment, either the court where action is pending, the CA or the SC on appeal even if action is pending in the lower court; or 2. If used as mode of executing a judgment, either the court of origin or the appellate court, as the case may be. 1. If used as mode of preliminary attachment, then applicant bond is required; 2. If used as mode of executing a judgment, no bond is required. 1. If used as mode of preliminary attachment, then grant is addressed to judicial discretion; Page 240 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 subject to discretion. judicial 2. If used as mode of executing a judgment, grant is a matter of right, unless discretionary execution is sought, which is subject to judicial discretion. x D. PRELIMINARY INJUNCTION 1. DEFINITIONS AND DIFFERENCES: PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER (TRO), AND STATUS QUO ANTE ORDER Preliminary Injunction It is an order granted at any stage of an action or proceeding before the judgment or final order, requiring a party or a court, agency or person to: 1. Refrain from a particular act or acts (prohibitory injunction); or 2. Perform a particular act or acts (mandatory injunction). (Sec. 1, Rule 58; Dungog v. CA, G.R. Nos. 77850-51, 1988) A preliminary injunction is a preventive remedy whose only mission is to prevent threatened wrong, further injury, and irreparable harm or injustice until the rights of the parties can be settled. (Nerwin Industries Corp v. PNOC-Energy Dev’t Corp., G.R. No. 167057, 2012) A preliminary mandatory injunction is more cautiously regarded than a mere prohibitive injunction since, more than its function of preserving the status quo between the parties, it also commands the performance of an act. Thus, the issuance of a writ of preliminary mandatory injunction is justified only in a clear case, free from doubt or dispute. (Ngo v Allied Banking Corp, G.R. No. 177420, 2010) Preservation of Status Quo – Purpose of Injunctive Writ The status quo is the last, actual, peaceful, and uncontested situation (which precedes a controversy, and its preservation is the office of an injunctive writ. (Pineda v. CA, G.R. No. 181643, Nov. 17, 2010) It usually refers to the status of the parties immediately before the filing of the complaint. Injunction is resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard compensation. The sole objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case can be heard fully. (Unilever v CA, G.R. No. 119280, 2006) Persons Bound by Writ; Relations Created A preliminary injunction is merely a provisional remedy, an adjunct to a main suit; hence, a person who is not a party in the main suit cannot be bound by the writ. (Mabayo Farms v. CA, G.R. No. 140058, 2002) A preliminary injunction should not establish new relations between the parties but merely maintain or re-establish the pre-existing relationship between them. (Bustamante v. CA, G.R. No. 126371, 2002) Temporary Restraining Order (TRO) It is a temporary or provisional order to maintain the subject of controversy in status quo until the hearing of an application for a preliminary injunction. (Incorporators of the Mindanao Institute v. United Church, G.R. No. 171765, 2012) The court to which the application for preliminary injunction was made may issue a TRO, effective for 20 days from notice to the party or person sought to be enjoined, if it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice. (Sec. 5, Rule 58). Page 241 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 A TRO has a definite life span of 20 days. It is automatically dissolved upon the lapse of 20 days. (REGALADO, 2008 ed.) A Writ of Preliminary Injunction has an indefinite life – it is valid until final judgment or while the action is pending. (Spouses Carpo v. Chua, G.R. Nos. 150773 & 153599, 2005) TRO v. Injunction TRO May be granted ex parte if great and irreparable injury would result otherwise. 72 hours or maximum 20 days (RTC), 60 days (CA) or until further orders (SC). INJUNCTION Cannot be granted without notice and hearing. In force while the action is pending. Status Quo Ante Order Status quo ante is a Latin term for "the way things were before." When an order of this nature is imposed, it is to maintain the state of things existing before the controversy. (ABS-CBN Corp. v. National Telecommunications Commission, G.R. No. 252119, 2020) It is an interlocutory order. (Dimayuga v. COMELEC, G.R. No. 174763, April 24, 2007) The Rules of Court do not sanction the issuance of a status quo ante order (SQAO). But in cases where the SQAO is issued by a court or agency other than the Supreme Court, the SQAO is deemed to have the “nature of a temporary restraining order,” and thus must comply with the requisites for a TRO in applicable cases. Thus, it cannot exceed the 20-day term and cannot be “indefinite.” Procedural requirements of hearing and notice must also be complied with. (See Repol v. Comelec, G.R. 161418, Apr. 28, 2004; Llamzon v. PEZA Board of Inquiry, G.R. 167445, Jun. 26, 2007) The Supreme Court, in jurisprudence, may issue SQAOs without restriction. The Supreme Court has issued a status quo order which, as the very REMEDIAL LAW term connotes, is merely intended to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy. This was resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a temporary restraining order. The status quo order was thus issued motu proprio or on equitable considerations. Unlike a temporary restraining order or a preliminary injunction, a status quo order is more in the nature of a cease and desist order, since it does not direct the doing or undoing of acts as in the case of a prohibitory or mandatory injunctive relief. The further distinction is provided by the present amendment in the sense that, unlike the amended rule on restraining orders, a status quo order does not require the posting of a bond. (Regalado, Remedial Law Compendium Vol. I, 734-35) COMELEC may issue a status quo ante order. (Dimayuga v. COMELEC, G.R. No. 174763, 2007) Action for Injunction v. Writ of Preliminary Injunction The main action for injunction is distinct from the provisional or ancillary remedy of preliminary injunction which cannot exist except only as part or an incident of an independent action or proceeding. In an action for injunction, the auxiliary remedy of preliminary of injunction, whether prohibitory or mandatory, may issue. (Urbanes v. CA, G.R. No. 117964, 2001) The main action for injunction seeks a judgment embodying a final injunction, which is distinct from, and should not be confused with, the provisional remedy of preliminary injunction, the sole object of which is to preserve the status quo until the merits are heard. (Id.). Who May Grant Preliminary Injunction A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof. (Sec. 2, Rule 58). Page 242 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Municipal Trial Courts (MTC/MeTC/MCTC) i. A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. (Art. 539, Civil Code); ii. In ejectment cases where an appeal is taken, the remedy granted in Article 539, second paragraph, shall also apply, if the higher court is satisfied that the lessee’s appeal is frivolous or dilatory, or that the lessor’s appeal is prima facie meritorious. The period of ten days referred to in said article shall be counted from the time the appeal is perfected. (Art. 1674, Civil Code); iii. A possessor deprived of his possession through forcible entry or unlawful detainer from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. (Sec. 15, Rule 70); iv. Provided the main action is within its jurisdiction, an inferior court can appoint a receiver and it has jurisdiction to issue a writ of preliminary injunction in either forcible entry or unlawful detainer cases. (Day vs. RTC of Zamboanga City, G.R. No. 79119, 1990, citing Regalado, Remedial Law Compendium, Second Revised Edition, p. 33) Judicial Interference in Preliminary Injunction General Rule: Under the doctrine of judicial stability or non-interference, no court has the power to interfere by injunction with the judgments or decrees of a court of concurrent or coordinate jurisdiction. (Dy Chiao v. Bolivar, G.R. No. 192491, 2016). Exception: A judge in charge of a branch of a trial court has jurisdiction to issue a preliminary injunction in a case pending in that branch notwithstanding the fact that a similar injunction had been denied by another judge in another branch of the court, and in the absence of gross abuse of discretion, the injunction granted will not be interfered with by certiorari. (Sabado v. Cristina Gonzalez, Inc., G.R. No. 28890, 1928) The denial of a petition for a preliminary injunction is not a final determination of the matter and is no obstacle to the subsequent granting of a renewed petition for the issuance of such injunction upon further information and consideration. (Id.). Regional Trial Courts (RTC) For Regional Trial Courts, the issuance of a writ of injunction is only enforceable within their respective regions. (Sec. 21, B.P. 129). The RTC has no authority to restrain or enjoin acts being perpetrated or to be perpetrated outside the territorial boundaries of its region. (Acosta vs. Alvendia, G.R. No. L-14598, 1960) Where the main action is the annulment of the action of the respondent and injunction is merely corollary, the trial court of locality where questioned act is to be implemented has jurisdiction. (Feria 2013, citing Decano vs. Edu, 99 G.R. No. L-30070, 1980) 2. REQUISITES Requisites for the Issuance of the Writ of Preliminary Injunction A writ of preliminary injunction is issued upon the applicant’s showing of two important requisite conditions: 1. The right to be protected exists prima facie; and 2. The acts sought to be enjoined are violative of that right. (Bicol Medical Center v. Botor, G.R. No. 214073, 2017) What Must be Proven for a Writ of Preliminary Injunction to Issue The following requisites must be proved before a writ of preliminary injunction, be it mandatory or prohibitory, will issue: 1. The applicant must have a clear and unmistakable right to be protected, that is a right in esse; 2. There is a material and substantial invasion of such right; Page 243 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 3. There is an urgent need for the writ to prevent irreparable injury to the applicant; and 4. No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury. (Municipality of Famy, Laguna v. Municipality of Siniloan, Laguna, G.R. No. 203806, 2020) The Rules require that the applicant's right must be a right in esse, that which is, clear or unmistakable, actual, and positive especially calling for judicial protection. (Id.). Clear and Unmistakable Right One clearly founded in or granted by law or is enforceable as a matter of law. (Australian Professional Realty v. Municipality of Padre Garcia, G.R. No. 183367, 2012) While a clear showing of the plaintiff’s right is necessary, its existence need not be conclusively established. The evidence need not be complete but merely a ‘sampling’ intended merely toggle the court an idea of the justification for the preliminary injunction, pending the decision of the case on the merits. Thus, the plaintiff is only required to show that it has the ostensible right to the final relief prayed for in the complaint.” (Los Banos Rural Bank v. Africa, G.R. No. 143994, 2002) Irreparable Injury Injury is considered irreparable if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court or law or where there is no standard by which their amount can be measured with reasonable accuracy. (Social Security Commission v. Bayona, G.R. No. L-13555, 1962) Respondents assert that foreclosure of their property may cause irreparable damage, thus justifying the issuance of the writ of preliminary injunction. The SC held that foreclosure of mortgaged property is not an irreparable damage that will merit for the debtor-mortgagor the extraordinary provisional remedy of preliminary injunction as “all is not lost for defaulting mortgagors whose properties were foreclosed by creditors-mortgagees.” The respondents will not be deprived outrightly of their property, given the right of redemption granted to them under the law. REMEDIAL LAW Moreover, in extrajudicial foreclosures, mortgagors have the right to receive any surplus in the selling price. Thus, if the mortgagee is retaining more of the proceeds of the sale than he is entitled to, this fact alone will not affect the validity of the sale but will give the mortgagor a cause of action to recover such surplus. (Solid Builders v. China Banking Corporation, G.R. No. 179665, 2013). A preliminary injunction is intended to prevent irreparable injury to the plaintiff, that possibility should be clearly established, if only provisionally, to justify the restraint of the act complained against. The evidence submitted at the hearing on the motion need not be conclusive and complete. However, the damage must not be susceptible of mathematical computation. Damages are irreparable within the meaning of the rule relative to the issuance of injunction where there is no standard by which their amount can be measured with reasonable accuracy. It does not have reference to the amount of damages that may be caused but rather to the difficulty of measuring the damages inflicted. If full compensation can be obtained by way of damages, equity will not apply the remedy of injunction. (Social Security Commission v. Bayona, G.R. No. L-13555, 1962) Injury is considered irreparable if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court or law or where there is no standard by which their amount can be measured with reasonable accuracy. (Ollendorff v. Abrahamson, G.R. No. 13228, 1918). Mere prima facie evidence is needed to establish the applicant’s rights or interests in the subject matter of the main action. (Republic v. Evangelista, G.R. No. 156015, 2005; Lukang vs Pagbilao Development Corp G.R. No. 195374, 2014) Procedure For Issuance of Writ of Preliminary Injunction and TRO 1. A verified application showing facts entitling the applicant to the relief demanded shall be filed with Page 244 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 the court where the action is pending. (Sec. 4(a), Rule 58) Application must be verified; absence of verification makes the application or petition patently insufficient both in form and in substance. (Rivera v. Mirasol., A.M. No. RTJ-04-1885, 2004) The Sandiganbayan cannot validly issue a TRO on the basis of a communication (letter) which is not verified. (Republic v. Sandiganbayan, G.R. No. 89553, 1993) 2. If the application is included in a complaint or initiatory pleading filed before a single-sala court, notice of the application must be served to the adverse party. If the application is included in a complaint or initiatory pleading filed before multiple-sala court, the application shall be raffled only after notice and in the presence of the adverse party. (Sec. 4 (c), Rule 58) No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. (Sec. 5, Rule 58) Notice shall be preceded or contemporaneously accompanied by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavits upon the adverse party in the Philippines. But the contemporaneous service of summons shall not apply when: a. The summons could not be served personally or by substituted service despite diligent efforts; b. Adverse party is a resident of the Philippines temporarily absent therefrom; or c. Adverse party is a non-resident. (Sec. 4(c), Rule 58) However, the court may issue a temporary restraining order (TRO) to be effective only for a period of 20 days from service on the party or person sought to be enjoined if great or irreparable injury would result to the applicant as shown by affidavits or by the verified petition before the matter can be heard on notice. (Sec. 5, Rule 58.). REMEDIAL LAW hours after the sheriff's return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately. (Sec. 4(d), Rule 58) Within the said 20-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. (Sec. 5, Rule 58) Nonetheless, the executive judge of a multiplesala court or the presiding judge of a single-sala court may issue an ex parte TRO effective for 72 hours from issuance if: a. The matter is of extreme urgency; and b. The applicant will suffer grave injustice or irreparable injury. Thereafter, the application for TRO shall be acted upon also after a summary hearing to determine whether the TRO shall be extended, which must not exceed 20 days, including the 72 hours initially provided. (Secs. 4 (d) and 5, Rule 58). After prior notice, a hearing shall be conducted on whether the applicant is entitled to the writ of preliminary injunction. Unless otherwise exempted, the applicant shall file a bond executed to the party enjoined in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. (Sec. 4(b), Rule 58). In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it was issued. (Sec. 5, Rule 58). A summary hearing must be conducted in an application for a TRO which must be held within 24 Page 245 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Comparison of Procedure for Issuance of Preliminary Injunction, TRO, SQAO PRELIMINARY INJUNCTION TEMPORARY RESTRAINING ORDER STATUS QUO ANTE ORDER Purpose To prevent future injury and To preserve the status quo ante To maintain the status quo ante or maintain the status quo for the until the hearing of the application the condition prevailing before the duration of the proceedings. for preliminary injunction. controversy until further orders by the Supreme Court. Requirements 1. There must be a verified application; 2. The application must show facts entitling the applicant to the relief demanded; 3. A bond must be filed, unless exempted in the court where the action is pending; and 4. Prior notice and hearing for the party/persons sought to be enjoined. Same with preliminary injunction. 1. If issued by the Supreme Court –the conservation of the status quo is desirable or TRO shall be acted upon only essential (Regalado, after the sheriff’s return of service Remedial Law Compendium and/or the records are received vol. I, 734-35) by the branch selected by raffle. 2. If issued by a lower court – must comply with requisites for a TRO under the Rules. When to File At any stage of an action or 1. When great or irreparable At any stage of an action or proceeding prior to the judgment injury would result to the proceeding prior to the judgment or final order. applicant before the matter or final order. can be heard on notice; 2. When the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the judge may issue ex parte a TRO effective for 72 hours from issuance. Where to File RTC having territorial jurisdiction over the act sought to be enjoined The Rules of Court do not state or the principal office of the corporation whose acts are sought to be where to file an application for enjoined; Court of Appeals; Supreme Court. status quo ante order. However, from the definition of status quo as the last peaceable uncontested status in the case, when a court issues a TRO to maintain the status quo, it refers to the status quo ante. Period of Effectivity Page 246 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Until the final disposition of the a. RTC – 20 days, non- Until the final disposition of the principal action extendible (including the principal action or as may be original 72 hours); directed by the Supreme Court. b. CA – may be effective for 60 days from service on the party or person sought to be enjoined; c. SC – may be effective until further orders. Ex Parte Cannot be granted ex parte a. 20 day TRO – cannot be a. If issued by the Supreme Court – may be issued motu granted ex parte propio; b. 3 day TRO – can be granted ex parte b. If issued by a lower court – partakes the nature of a TRO. X 3. KINDS OF INJUNCTIONS; KINDS OF TEMPORARY RESTRAINING ORDERS Preliminary Prohibitory Injunction The purpose of a preliminary prohibitory injunction is to preserve the status quo of the things subject of the action or the relation between the parties, in order to protect the rights of the plaintiff respecting the subject of the action during the pendency of the suit. If no such preliminary prohibitory injunction were issued, the defendant may, before final judgment, do or continue the doing of the act which the plaintiff asks the court to restrain, and thus make ineffectual the final judgment rendered afterwards granting the relief sought by the plaintiff. (Calo v. Roldan, G.R. No. L-252, 1946) Preliminary Mandatory Injunction The purpose of a preliminary mandatory injunction, unlike a preliminary prohibitory injunction, is to require the performance of a particular act or acts; thus, it tends to do more than maintain the status quo. Hence the plaintiff’s right must be clear and unmistakable. (Prosperity Credit Resources v. CA, G.R. No. 114170, 1999) PRELIMINARY PROHIBITORY INJUNCTION To prevent a person from the performance of a particular act. The act had not yet been performed. Status Quo preserved. is PRELIMINARY MANDATORY INJUNCTION To require a person to perform a particular act. The act has already been performed and has violated the rights of another. Status Quo is restored. Final injunction Granted if, after the trial of the action, it appears that the applicant is entitled to have the act or acts complained of permanently enjoined. It may perpetually restrain the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction. (Sec. 9, Rule 58) Page 247 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 4. WHEN WRIT MAY BE ISSUED, WHEN WRIT MAY NOT BE ISSUED Preliminary injunction is granted at any stage of the proceedings prior to the judgment or final order. (Sec. 1, Rule 58) Examples of When Preliminary Injunction May be Issued i. In petitions for relief from judgment entered through fraud, accident, mistake, or excusable negligence (Sec. 5, Rule 38); ii. In actions for certiorari, prohibition, and mandamus (Sec. 7, Rule 65); iii. In actions for annulment of judgments obtained through fraud (Anuran vs. Aquino and Ortiz, G.R. No. L-12397, 1918); iv. In actions for annulment of judgments which are not patent nullities, i.e. want of jurisdiction, lack of due process of law (Banco EspañolFilipino vs. Palanca, G.R. No. L-11390, 1918); v. To restrain husband from alienating or encumbering conjugal property during pendency of divorce proceedings. (De La Viña vs. Villareal and Geopano, G.R. No. L-13982, 1920) vi. To restrain continued breach of valid negative obligation; vii. To enjoin repeated trespass of land. (Rodulfa vs. Alfonso, G.R. No. L-144, 1946); viii. To restrain the city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such (Iloilo Ice and Cold Storage Co. vs. Municipal Council of Iloilo, G.R. No. 7012, 1913); ix. To restrain voting of disputed shares of stocks (Madrigal vs. Rodas, G.R. No. L-1636, 1948); x. To restrain the sheriff from selling property on execution not belonging to judgment debtor (Codesal & Ocampo vs. Ascue, G.R. No. 11403, 1918); xi. To restrain criminal prosecutions (Brocka v. Enrile, G.R. Nos. 69863-65, 1990); xii. In cases of forcible entry and unlawful detainer. (Sec. 15, Rule 70). Generally, a criminal prosecution may not be restrained or stayed by injunction, preliminary or final, except: a. To afford adequate protection to the constitutional rights of the accused; REMEDIAL LAW b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of action; c. Where there is a prejudicial question which is sub judice; d. When the acts of the officers are without or in excess of authority; e. When double jeopardy is clearly apparent; f. When the prosecution is under an invalid law, ordinance, or regulation; g. Where the court has no jurisdiction over the offense; h. Where it is a case of persecution rather than prosecution; i. Where charges are manifestly false and motivated by lust or vengeance; j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied; and k. Preliminary Injunction has been issued by the SC to prevent threatened unlawful arrest of petitioners. (Brocka v. Enrile, G.R. Nos. 6986365, 1990) Examples of When Preliminary Injunction Does Not Lie i. To take property out of the possession of one party and place it in another whose title is not clearly established by law (Devesa vs. Arbes, G.R. No. 4891, 1909); ii. When action for damages would adequately compensate the injuries caused (Golding vs. Balatbat, G.R. No. 11130, 1917); iii. To prevent directors from discharging their office and restoring former directors (Silen vs. Vera, G.R. No. 45574, 1937); iv. To restrain criminal prosecution where the Ombudsman had authorized the special prosecutor to conduct a preliminary injunction or to file an injunction (Santiago vs. Vasquez, G.R. Nos. 99289-90, 1992); v. To enjoin the collection of national internal revenue taxes (NIRC, Sec. 218) but not local taxes (Angeles City v. Angeles City Electric Corporation, G.R. No. 166134, 2010) vi. To block the discharge of functions and implementation of decisions of the Privatization and Management Office under the Dept. of Finance, in connection with the acquisition, sale, or disposition of assets transferred to it. Page 248 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW (Proclamation No. 50 & 50-A of 1986, Sec. 31; EO No. 323, Art. III, 2000) vii. To restrain the implementation of national infrastructure projects (R.A. No. 8975, Sec. 3) viii. To restrain any freeze order issued by the Anti-Money Laundering Council except the Court of Appeals or the Supreme Court. (R.A. No. 9160, Sec. 10) ix. Against the Presidential Agrarian Reform Council (PARC) or any of its duly authorized or designated agencies in any case, dispute or controversy arising from, necessary to, or in connection with the application, implementation, enforcement, or interpretation of the Comprehensive Agrarian Reform Law and other pertinent laws on Agrarian reform (R.A. No. 6657, Sec. 55) nor against the Dept of Agrarian Reform, the Dept of Agriculture, the Dept of Environment and Natural Resources, and the Dept. of Justice in their implementation of the comprehensive agrarian reform program. (R.A. No. 6657, Sec. 68) x. Against the extrajudicial foreclosure of real estate mortgage on the allegation that: i. The loan secured by the mortgage has been paid or is not delinquent unless the application is verified and supported by evidence of payment ii. The interest on the loan is unconscionable, unless the debtor pays the mortgagee at least 12% per annum interest on the principal obligation as stated in the application for foreclosure sale, which shall be updated monthly while the case is pending. (A.M. No. 99-10-05-O, 2007) c. That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (Sec. 3, Rule 58) 5. GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION Injunction Against Acts Already Consummated General Rule: Injunction contemplates acts being committed or about to be committed; thus, it does not lie against acts already consummated. (Regalado, 2008 ed.; Municipal Council of Sta. Rosa v. La Laguna, G.R. No. 1697, 1904) A preliminary injunction may be granted when it is established: a. That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; b. That the commission, continuance, or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or Note: The rule on preliminary injunction merely requires that unless restrained, the act complained of will probably violate his rights and tend to render the judgment ineffectual. Entitlement to Relief Demanded When there is a clear finding that the applicant is indeed the owner of the land in dispute, the applicant is entitled to the benefit of injunctive relief to remove intruders. (Sps. Dela Rosa v Heirs of Juan Valdez, G.R. No. 159101, 2011) The writ will not issue if documents show that the right of the applicant is disputed, i.e. existence of lien on properties sought to be released from the mortgage. (Ngo v Allied Banking Corp, G.R. No. 177420, 2010) A writ of preliminary injunction cannot be issued without a prior notice and hearing. It cannot be issued ex parte. (Sec. 5, Rule 58) Only a 72-hour TRO can. Where the defendant is heard on the application for injunction, the trial court must consider, too, the weight of his opposition. (G.G. Sportswear v. BDO, G.R. No. 184434, 2010) Exception: In cases of issuance of mandatory injunction, i.e., if the acts complained of are continuing in nature and were in derogation of plaintiff’s rights at the outset. (Manila Electric Co. v. Del Rosario, G.R. No. 7688, 1912) Page 249 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Neither does it protects contingent or future rights nor lies to enforce an abstract right. (Cerenio v. Dictado G.R. No. 81550, 1988) 6. GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION OF INJUNCTION OR RESTRAINING ORDER The application for injunction or restraining order may be denied or dissolved, if granted, upon a showing of: a. Its insufficiency; b. Other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits; c. If it appears after hearing that:  Although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer; provided that:  The former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or dissolution of the restraining order. (Sec. 6, Rule 58). The injunction may also be modified if it appears that the extent of the preliminary injunction or restraining order granted is too great. (Id.) Filing of Counterbond to Dissolve Injunction is Not a Matter of Right Unlike the counter-bond to discharge attachment, which the court shall order after due notice and hearing if the party whose property has been attached files a bond sufficient to secure the payment of any judgment that the attaching party may recover in the action, the counterbond to dissolve injunction may be approved by the court after hearing if: 1. The court in the exercise of its discretion, finds that the continuance of the injunction would cause great damage to the defendant, while the plaintiff can be fully compensated for such damages as he may suffer; AND 2. The defendant files a counter-bond. (Yap vs. Int’l. Exchange Bank, G.R. No. 175145, 2008) REMEDIAL LAW Service of Copies of Bonds The party filing a bond shall serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. (Sec. 7, Rule 58) The injunction shall be dissolved: 1. If the applicant's bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify the insufficiency; AND 2. A bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith. (Sec. 7, Rule 58). If the bond of the adverse party is found to be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be. (Sec. 7, Rule 58) 7. DURATION OF TEMPORARY RESTRAINING ORDERS General Rule: A TRO is effective only for a period of 20 days from service on the party or person sought to be enjoined. Exception: If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparably injury, it can be issued with an effectivity of 72-hours from issuance and extendible up to 20 days after a summary hearing. (Sec. 5, Rule 58) Comparison: Effectivity Depending on the Court Which Issues TRO (Sec. 5, Rule 58) ISSUED BY EFFECTIVITY RTC 20 days, non-extendible (including the original 72 hours). CA May be effective for 60 days from service on the party or person sought to be enjoined. SC May be effective until further orders. 20-day TRO It shall be granted if it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice Page 250 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 and hearing on the application for preliminary injunction. It shall be granted by the court to which the application for preliminary injunction was made and is effective for the said period, to be counted from notice to the person or party sought to be enjoined. Within the 20-day period, the court must: 1. Order said party or person to show cause, at a specified time and place, why the injunction should not be granted; 2. Determine within the same period whether the preliminary injunction should be granted; and 3. Accordingly issue the corresponding order. (Sec. 5, Rule 58) The rule against the non-extendibility of the 20-day effectivity of a temporary restraining order is absolute if issued by a Regional Trial Court. The failure of the trial court to fix a period in the temporary restraining order does not convert it to a preliminary injunction. Where there is an omission to fix the period, the 20-day period is deemed incorporated in the order. (Bacolod City Water District v. Labayen, G.R. No. 157494, 2004) 72-hour TRO It shall be granted if: 1. The matter is of extreme urgency; and 2. The applicant will suffer grave injustice and irreparable injury. (Sec. 5, Rule 58). It shall be granted by the executive judge of a multiple-sala court or the presiding judge of a single-sala court, who shall immediately comply with Sections 4 and 5, Rule 58 as to service of summons and the documents to be served therewith. Reckoning Point of the Effectivity of a TRO A 20-day TRO has an effectivity of only 20 days to be counted from service to the party sought to be enjoined. Likewise, within those 20 days, the court shall order the enjoined party to show why the injunction should not be granted and shall then determine whether or not the injunction should be granted. (First Sarmiento Property Holdings, Inc. v. Philippine Bank of Communications, G.R. No. 202836, 2018). REMEDIAL LAW On the other hand, when there is extreme urgency and the applicant will suffer grave injustice and irreparable injury, the court shall issue a temporary restraining order effective for only 72 hours upon issuance. Within those 72 hours, the court shall conduct a summary hearing to determine if the temporary restraining order shall be extended until the application for writ of preliminary injunction can be heard. However, in no case shall the extension exceed 20 days. (Id.). Effect If Application for Preliminary Injunction is Not Resolved Within the 20-Day Period In the event that the application for preliminary injunction is denied or not resolved within the said period, the TRO is deemed automatically vacated. (Sec. 5, Rule 58) Effect if No Action is Taken Within the 20-day Period The temporary restraining order would automatically expire on the 20th day by sheer force of law, no judicial declaration to that effect being necessary. (Sec. 5, Rule 58) Ban on Issuance of TRO or Writ of Injunction in Cases Involving Government Infrastructure Projects No court, except the Supreme Court, shall issue any TRO, preliminary injunction, or preliminary mandatory injunction against the government, or any of its subdivisions, officials, or any person or entity, whether public or private, acting under the government’s discretion, to restrain, prohibit, or compel the following acts: a. Acquisition, clearance, and development of the right-of-way and/or site or location of any national government project; b. Bidding or awarding of contract/project of the national government; c. Commencement, prosecution, execution, implementation, or operation of any such contract or project; d. Termination or rescission of any such contract/project; and e. The undertaking or authorization of any other lawful activity necessary for such contract/project. Page 251 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 This prohibition shall apply in all cases, disputes, or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project. (R.A. No. 8975, Sec. 3) Any TRO, preliminary injunction, or preliminary mandatory injunction issued in violation of Sec. 3 is void and of no force and effect. (R.A. No. 8975, Sec. 4) Consequence of Issuance of TRO Against Government Infrastructure Projects Any judge who shall issue the same in violation of Sec. 3 shall suffer the penalty of suspension of at least 60 days without pay, in addition to any civil or criminal liabilities he or she may incur under existing laws. (R.A. No. 8975, Sec. 6). When Prohibition is Not Applicable 1. When the matter is of extreme urgency involving a constitutional issue, such that unless a TRO is issued, grave injustice and irreparable injury will arise; and 2. Upon the filing of a bond by the applicant, the amount which is to be fixed by the court and shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. (R.A. No. 8975, Sec. 3). Other Instances When TRO May Not be Issued A temporary restraining order may not be issued to compel the performance of an act. (Villanueva vs. CA, G.R. No. 117661, 1996). Courts should avoid issuing a writ of preliminary mandatory injunction which would in effect dispose of the main case without trial. There would be in effect a prejudgment of the main case and a reversal of the rule on the burden of proof since it would assume the proposition which the plaintiffs were inceptively bound to prove. (Searth Commodities Corp vs. CA, G.R. No. 64220, 1992) REMEDIAL LAW 8. RULE ON PRIOR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO ATTACHMENT General Rule: The application for a writ of preliminary injunction may or may not be included in a complaint or any initiatory pleading. The notice of hearing on the said application shall be preceded or contemporaneously accompanied by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavits and bond, upon the adverse party in the Philippines. (Sec. 4, Rule 58). Exceptions: The requirement of prior or contemporaneous service of summons shall not apply, in the following cases: a. The summons could not be served personally or by substituted service despite diligent efforts; or b. The adverse party is a resident of the Philippines temporarily absent therefrom; or c. The adverse party a non-resident thereof. (Id). Duty of the Court That Issued the Writ The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that issued the writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition six (6) months from the issuance of the writ. (A.M. No. 077-12-SC, Effective December 27, 2007) Procedure for Issuance of a TRO (Administrative Circular 20-95; Rule 58, Sec. 4 and 5) Under ordinary circumstances: 1. The complaint is filed with a prayer for TRO or WPI; 2. The case shall be raffled and transmission of records to selected branch. Note: If filed in a multiple-sala court, the raffle must be done after notice to and in the presence of the adverse party or the person to be enjoined. 3. The preliminary injunction may only be heard after the trial court has ordered the issuance of the usual 20-day TRO. Within that period of 20 days, the court shall order the party sought to be enjoined to show cause at a specified time Page 252 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 and place why the injunction should not be granted. During that same period, the court shall also determine the propriety of granting the preliminary injunction and then issue the corresponding order to that effect. (FERIA, 2013, citing Lago vs. Abul Jr, A.M. No. RTJ-102255, 2011). When there is grave and irreparable injury or extreme urgency: 1. File a complaint with prayer for TRO or WPI; 2. Executive judge decides whether to issue an ex parte 72-hour TRO;  Applies when the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. 3. Issuance or denial of the 72-hour TRO; 4. The case is raffled;  Notice of raffle must be sent to a party. This happens even before summons;  Raffled to a branch/sala. 5. Judge must call a summary hearing within the 72 hours, before the TRO expires, to determine whether the TRO shall be extended until the application for preliminary injunction can be heard;  Notice of hearing and notice of summons must already be given. 6. If the TRO is extended to 20 days, during the 20 days, the judge shall conduct hearings to resolve whether or not to issue a writ of preliminary injunction.  Almost akin to a trial, but not a full-blown trial.  If not resolved or no action taken within 20 days, TRO is deemed automatically vacated; it will automatically expire by sheer force of law, no declaration to that effect necessary. When Final Injunction Granted If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts of confirming the preliminary mandatory injunction. (Sec. 9, Rule 58) REMEDIAL LAW Claim for Damages From the Bond Filed The posting of bond in connection with a preliminary injunction (or attachment, receivership, or replevin) does not operate to relieve the party obtaining the injunction from any and all responsibility for the damages that the writ may cause. It merely gives additional protection to the party against whom injunction is granted. (Sec. 20, Rule 57; Sec. 8, Rule 58) At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed, ascertained, and awarded under the same procedure prescribed in Section 20 of Rule 57, to wit: 1. An application for damages must be filed: a. Before the trial; b. Before the appeal is perfected; or c. Before the judgment becomes executory; 2. The application must be with due notice to the adverse party and his sureties; 3. The damages shall be awarded after hearing and included in the judgment of the main case; 4. If the judgment on the appellate court be favorable against the party enjoined, he must claim damages sustained during the pendency of the appeal and before the judgment becomes executory, in accordance with nos. 2 and 3 above. The appellate court may allow the application to be heard and decided by the trial court; 5. Should the bond be insufficient to satisfy the award, the claiming party shall not be prevented from recovering the damages, in the same action, from any property of the adverse party which is not exempt from execution. (Sec. 20, Rule 57; Sec. 8, Rule 58). If surety is given due notice of the application for damages, he is bound by the judgment that may be entered against the principal. If no notice is given, the court must order the surety to show cause why the bond should not respond for the judgment for damages. If surety should contest, the court will set it for summary hearing. (Visayan Surety & Insurance Corp vs. Pascual, G.R. No. L2981, 1950). The claim for damages must be presented in the principal action and judgment therefor should be included in the final judgment of the case. It must Page 253 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 be claimed in the same action, otherwise barred. (Feria 2013 citing Mendoza vs. Cruz, G.R. No. L26829, 1979) The remedy is exclusive and by failing to file a motion for the determination of the damages in time and while the judgment is still under the control of the court, the claimant loses his right to such damages. (Feria 2013, citing Japco vs. City of Manila, G.R. No. 24584, 1926) E. RECEIVERSHIP Nature of the Power and Authority of the Courts to Appoint a Receiver The power to appoint a receiver is a delicate one and should be exercised with extreme caution and only under circumstances requiring summary relief or where the court is satisfied that there is imminent danger of loss, lest the injury thereby caused be far greater than the injury sought to be averted. The court should consider the consequences to all of the parties and the power should not be exercised when it is likely to produce irreparable injustice or injury to private rights or the facts demonstrate that the appointment will injure the interests of others whose rights are entitled to as much consideration from the court as those of the complainant. (Tantano v. Caboverde, G.R. No. 203585, 2013). Purpose of Receivership The purpose of receivership is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal, or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied. (Sec. 1, Rule 59). Receivership is aimed at the preservation of, and at making more secure, existing rights. It cannot be used as an instrument for the destruction of those rights. (Arranza v. BF Homes, G.R. No. 131683, 2000). Property subject of receivership must be under litigation. (Sec. 1, Rule 59). REMEDIAL LAW Receiver A receiver is a person appointed by the court on behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation, if it were left in the possession of any of the parties. The appointment of a receiver is not a matter of absolute right. It depends upon the sound discretion of the court and is based upon the facts and circumstances of each case. (Commodities Storages & Ice Plant v. CA, G.R. No. 125008, 1997) A receiver is not an agent or representative of any party to the action. He is an officer of the court exercising his functions in the interest of neither plaintiff nor defendant, but for the common benefit of all parties in the interest. He performs his duties “subject to the control of the Court,” and every question involved in the receivership may be determined by the court taking cognizance of the receivership proceedings. (Pacific Merchandising Corporation v. Consolacion Insurance & Surety Co., G.R. No. L-30204, 1976) Not only that he should act at all time with the diligence and prudence of a good father of a family but should also not incur any obligation or expenditure without leave of court and it is the responsibility of the court to supervise the receiver and see to it that he adheres to the above standard of his trust and limits the expenses of the receivership to the minimum. (Normandy v. Duque, G.R. No. L-25407, 1969) Unauthorized contracts of a receiver do not bind the court in charge of receivership. They are the receiver’s own contracts and are not recognized by the courts as contracts of receivership. (Pacific Merchandising Corporation v. Consolacion Insurance & Surety Co., G.R. No. L-30204, 1976) 1. CASES WHEN RECEIVER MAY BE APPOINTED Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: Page 254 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 a. When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; d. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. (Sec. 1, Rule 59). During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court. (Id.). 2. REQUISITES The following are the requisites for receivership: 1. That the application for receivership is based on the grounds under Sec. 1 of Rule 59; 2. That the properties being placed under receivership are those involved in the litigation. (Central Sawmills v. Alto Surety & Insurance, G.R. No. L-24508, 1969); 3. That the plaintiff must not be in the actual possession of the property being placed under receivership. (Calo v. Roldan, G.R. No. L-252, 1946);  This is because there would be no reason for such appointment, for the owner and REMEDIAL LAW possessor of a property is more interested than other persons in preserving and administering it. (Id.); 4. The rights of the parties must not depend on the pending determination of adverse claims of legal title to real property and one party is in possession. (Descallar v. Court of Appeals, G.R. No. 106473, 1993) Exception: Only when the property is in danger of being materially injured or lost, as by the prospective foreclosure of a mortgage thereon for non-payment of the mortgage loans despite the considerable income derived from the property, or if portions thereof are being occupied by third persons claiming adverse title thereto, may the appointment of a receiver be justified. (Id.) The guiding principle for resorting to receivership is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted. (Commodities Storage v. CA, G.R. No. 125008, 1997) 3. REQUIREMENTS BEFORE ISSUANCE OF AN ORDER APPOINTING A RECEIVER The following are the requirements before the issuance of an order appointing a person as receiver: 1. Verified application for the appointment of a receiver based on any of the grounds enumerated in Section 1, Rule 59; and 2. Bond filed by the applicant and executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages the latter may sustain by reason of the appointment of such receiver in case the applicant should have procured the same without sufficient cause. (Sec. 2, Rule 59). The court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages. (Id.) Procedure for Appointment of a Receiver 1. A verified application must be filed by the party applying for the appointment of a receiver; Page 255 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 2. The applicant must have an interest in the property or funds subject of the action; 3. The applicant must show that the property or funds is in danger of being lost, removed, materially altered, wasted or dissipated or there is a need to preserve or administer the property, or that all the grounds justifying the appointment of a receiver exist; 4. The application must be with notice and set for hearing; 5. The applicant must post a bond in favor of the party against whom the application is presented before the court issues the appointment of a receiver; and 6. Before entering upon his duties, the receiver must be sworn to perform his duties faithfully and shall file a bond. (Secs. 2-4, Rule 59; REGALADO, 2012 ed.). The Rules do not authorize an ex parte appointment of a receiver. A hearing is necessary and a bond is required from the applicant. Also, all the necessary parties to be affected by the receivership must be included in the suit. (Claudio v. Zandueta, G.R. No. 45664, 1937). Appointment of Receiver – Discretionary The appointment of a receiver pendente lite, like the granting of an interlocutory injunction, rests in the discretion of the court where the application is made which shall consider the entire circumstances of the case. As such, the action of the lower court in appointing or denying the appointment of a receiver pendente lite will not be disturbed in appeal unless there has been a clear abuse. It has been said that, of all the extraordinary remedies authorized by law, the appointment of a receiver is the most drastic and far-reaching in effect. Hence, such power of the court should be exercised with great caution. (Ylarde v. Enriquez, G.R. No. L-1401, 1947). Instances When Receivership May Be Denied or Lifted a. If the appointment sought or granted is without sufficient cause (Rule 59, Sec. 3); b. Adverse party files a counterbond to answer for damages (Id.); c. Applicant’s bond is insufficient (Rule 59, Sec. 5); or d. Receiver’s bond is insufficient (Id.). REMEDIAL LAW A clerk of court should not be appointed as a receiver as he is already burdened with his official duties. (Alcantara v. Abbas, G.R. No. L-14890, 1963). Neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. (Abrigo v. Kayanan, G.R. No. L-28601, 1983). 4. GENERAL POWERS OF A RECEIVER Subject to the control of the court in which the action is pending, a receiver shall have the power to: 1. Bring and defend actions in his own name in his capacity as receiver; 2. Take and keep possession of the property subject of the controversy; 3. Receive rents; 4. Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; 5. Compound for and compromise the same; 6. Make transfers; 7. Pay outstanding debts; 8. Divide the money and other property that shall remain among the persons legally entitled to receive the same; and 9. Generally to do such acts respecting the property as the court may authorize. 10. Invest funds in his hands, only by order of the court upon the written consent of all the parties (Sec.6, Rule 59) No action may be filed by or against a receiver without leave of the court which appointed him. (Id.) The rule talks of the current receiver of the company and not the previous receiver. The reason behind Rule 59, Sec. 6, which requires leave of court for all suits by or against the present receiver, is to forestall any undue interference with the receiver’s performance of duties through improvident suits. Hence, an action filed by a successor-receiver against his predecessorreceiver is allowed under Rule 59, Sec. 6, without Page 256 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 leave of court. (Orendain v. BF Homes, G.R. No. 146313, 2006). REMEDIAL LAW Liability for Damages In order to determine which bond is liable for damages, it is important to identify the cause. 5. KINDS OF BONDS IN RECEIVERSHIP The following are the kinds of bonds in receivership: A. Applicant’s bond (Sec. 2, Rule 59)  Bond on appointment of the receiver  A bond executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause  Given before the issuance of the order of appointment B. Additional bond (Sec. 2, Rule 59)  Bond on appointment of the receiver  Given at any time after the appointment  May be required by the court in its discretion C. Counterbond (Sec. 3, Rule 59)  The application may be denied, or the receiver discharged, when the adverse party files a bond executed to the applicant, in an amount to be fixed by the court, to the effect that such party will pay the applicant all damages he may suffer by reason of the acts, omissions, or other matters specified in the application as ground for such appointment.  If the bond of the adverse party is found to be insufficient in amount or the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the receiver shall be appointed or re- appointed, as the case may be. (Sec. 5, Rule 59) D. Receiver’s bond (Sec. 4, Rule 59)  Bond executed to such person and in such sum as the court may direct, to the effect that he will faithfully discharge his duties in the action or proceeding and obey the orders of the court  Given by the receiver before entering upon his duties If the damage is caused by reason of the appointment of the receiver, applicant is liable through its bond (applicant’s bond). This must be claimed in the court where appointment of receivership is made; cannot file a separate action. If the damage is caused by the negligence or acts of the receiver, receiver is liable through the receiver’s bond. This includes acts of mismanagement or fraud, i.e., fictitious, pays himself instead of creditor. (Dela Riva v. Molina Salvado, G.R. No. L-10106, 1915) Bonds Must be Served to the Interested Parties The person filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy thereof on each interested party, who may except to its sufficiency or of the surety or sureties thereon. (Sec. 5, Rule 59) Recovery on the Bonds The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure prescribed in Section 20 of Rule 57. (Sec. 9, Rule 59) See prior discussion on Claim for Damages From the Bond Filed under Preliminary Injunction. Liability for Refusal or Neglect to Deliver Property to Receiver A person who refuses or neglects, upon reasonable demand, to deliver property subject or involved in the action or proceeding, or in case of disagreement, as determined and ordered by the court, may be punished for contempt and shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered, together with all the damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. (Sec. 7, Rule 59) Page 257 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 6. TERMINATION OF RECEIVERSHIP Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing: 1. Settle the accounts of the receiver; 2. Direct the delivery of the funds, and other property in his possession to the person adjudged to be entitled to receive them; and 3. Order the discharge of the receiver from further duty as such. 4. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as judgment requires. (Rule 59, Sec. 8) F. REPLEVIN Replevin Replevin, broadly understood, is both a form of principal remedy and of a provisional relief. It may refer either to the action itself, i.e., to regain the possession of personal chattels being wrongfully detained from the plaintiff by another, or to the provisional remedy that would allow the plaintiff to retain the thing during the pendency of the action and hold it in pendente lite. (Rivera v. Vargas, G.R. No. 165895, 2009) Nature of an Action for Replevin The action is primarily possessory in nature and determines nothing more than the right of possession. Replevin is so usually described as a mixed action, being partly in rem and partly in personam – in rem insofar as the recovery of specific property is concerned, and in personam as regards to damages involved. As an “action in rem,” the gist of the replevin action is the right of the plaintiff to obtain possession of specific personal property by reason of his being the owner or of his having a special interest therein. (BA Finance Corporation v. CA, G.R. No. 102998, 1996) Enforceability of a Writ of Replevin A writ of replevin issued by a Regional Trial Court or a Municipal Trial Court may be enforced anywhere in the Philippines. (Fernandez v. International Corporate Bank, G.R. No. 131283, 1999) Replevin v. Distinctions Preliminary REPLEVIN Available only where the principal relief sought in the action is recovery of personal property, the other reliefs (e.g. damages) being merely incidental thereto. Can be sought only where the defendant is in actual or constructive possession of the property involved. Extend only to personal property capable of manual delivery. Available to recover personal property even if the same is not concealed, removed, or disposed of. Cannot be availed of if the property is in custody legis, except: a. When the seizure is illegal; b. Where there is reason to believe that the seizure will not anymore be followed by the filing of the criminal action in court or there are conflicting claims. Attachment; PRELIMINARY ATTACHMENT Available even if the recovery of personal property is only an incidental relief sought in the action. May be resorted to even if the personality is in the custody of a third person. May be resorted to even if the property is intangible or incorporeal. Seize any property owned by defendant or adverse party. Can still be resorted to even if the property is in custodia legis. Page 258 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 (Chua v. CA, G.R. No.119255, 2003) 1. WHEN MAY WRIT BE ISSUED When Application May be Filed A party may apply a writ of replevin to recover the possession of a personal property: a. At the commencement of the action; or b. At any time before defendant files answer. (Rule 60, Sec. 1) Note: there can be no replevin before the appellate courts. Applicant Need Not be the Owner The applicant need not be the owner of the property. It is enough that he has a right to its possession. (Yang v. Valdez, G.R. No. 73317, 1989) Note: A chattel mortgagee may maintain an action for replevin. Where the mortgage authorizes the mortgagee to take possession of the property on default, he may maintain an action to recover possession of the mortgaged chattels from the mortgagor or from any person in whose hands he may find them. This is irrespective of whether the mortgage contemplates a summary sale of the property or foreclosure by court action. (Agner v. BPI Family Savings Bank, G.R. No. 182963, 2013) 2. REQUISITES For a writ of replevin to be issued, the following are required: 1. An application must be timely filed (Sec. 1, Rule 60); 2. The application must be supported by an affidavit (Sec 2, Rule 60); 3. The applicant must give a bond executed to the adverse party. (Id.) 3. AFFIDAVIT AND BOND; REDELIVERY BOND Procedure for the Application for Replevin 1. Application for replevin must be filed at any time before defendant files an answer; 2. Application must contain an affidavit executed by the applicant or some other person who REMEDIAL LAW personally knows of the facts the matters required under the Rules, which shows that: i. Applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; ii. Property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; iii. Property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt or should be released from such seizure or custody; and iv. Actual market value of the property; 3. Applicant must give a replevin bond, executed to the adverse party and double the value of the property. (Rule 60, Sec. 2); Note: A replevin bond is simply intended to indemnify the defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending the trial of the action. (Alim v. CA, G.R. No. 93213, 1991) 4. Upon the filing of such affidavit and approval of the bond, the court shall issue an order and corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. (Sec. 3, Rule 60) Note: If the detention is actually allowed by law, then no replevin is allowed (Twin Ace Holding v. Rufina, G.R. No. 160191, 2006) Remedies of Owner or Person Entitled to Possession to Secure Return of Property i. Object to the sufficiency of the bond or of the surety or sureties thereon (Sec 5, Rule 60);  In this case, return cannot be immediately required;  The result of this remedy is to require a bond in a higher amount i.e., a new bond. Only when this order is not complied with that the replevin is discharged. ii. Filing of counterbond or redelivery bond (Id.) Page 259 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21  In this case, return can be immediately demanded;  The bond must be double the value of the property as stated in the applicant’s affidavit;  The redelivery bond answers for delivery of the subject property and payment of all sums as may be adjudged.  Requisites: 1. Must be filed before the delivery of property to the plaintiff and within 5 days after the taking of the property by the sheriff; 2. Copy must be served to the plaintiff (also within 5 days after the taking of the property by the sheriff). (Sec. 6, Rule 60) 4. SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD PARTY Duties of the Sheriff 1. The sheriff must serve a copy of the order on the adverse party, together with a copy of the application, affidavit, and bond; 2. If the property is in the possession of the adverse party or his agent, the sheriff must forthwith take it and retain it in his custody; 3. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it not be delivered, he must cause the building or enclosure to be broken open and take the property into his possession; 4. After the sheriff has taken possession of the property, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same. (Rule 60, Sec. 4) Disposition of Property by Sheriff The sheriff shall deliver the property to the applicant if within 5 days after the taking of the property by the sheriff, the adverse party: a. Does not object to the sufficiency of the bond, or of the surety or sureties contained thereon; or b. So objects, and the court affirms its approval of the applicant’s bond or approves a new bond; or REMEDIAL LAW c. If the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond. (Sec. 6, Rule 60) If for any reason, the property is not delivered to the applicant, the sheriff MUST return the property to the adverse party. (Id.) The Rules provide that property seized under a writ of replevin is not to be delivered immediately to the plaintiff. Under Section 6, Rule 60, the Sheriff should have waited no less than 5 days in order to give the complainant an opportunity to object to the sufficiency of the bond. (Hao v. Andres, A.M. No. P-07-2384, 2008) Effect of Writ of Replevin That Has Been Improperly Served Service of the writ upon the adverse party is mandatory in line with the constitutional guaranty on procedural due process and as safeguard against unreasonable searches and seizures. The writ or order of replevin should comply with all the requirements as to matters of form or contents prescribed by the Rules of Court. The writ must also satisfy proper service in order to be valid and effective, i.e., it should be directed to the officer who is authorized to serve it; and it should be served upon the person who not only has the possession or custody of the property involved but who is also a party or agent of a party to the action. Consequently, a trial court is deemed to have acted without or in excess of its jurisdiction with respect to the ancillary action of replevin if it seizes and detains a personalty on the basis of a writ that was improperly served. The proper remedy of the person being served with the writ should be to file a motion to quash the writ of replevin or a motion to vacate the order of seizure. It now becomes imperative for the trial court to restore the parties to their former positions by returning the seized property to petitioner and by discharging the replevin bond filed by respondent. (Rivera v. Vargas, G.R. No. 165895, 2009). Page 260 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Remedies of Third Parties A. Terceria (third-party claim); B. Separate action to assail possession; C. File a motion for intervention. recovery of Terceria When the property taken is claimed against whom replevin had been issued or his agent, the sheriff shall not be bound to keep the property under replevin if such third person shall: 1. Make an affidavit of his title to or right of possession over the property; 2. Such affidavit states the grounds of such title or right; 3. The affidavit is served to the sheriff while the latter has possession of the attached property; and 4. A copy of the affidavit is served upon the applicant. (Sec. 7, Rule 60) However, the sheriff shall still be bound to keep the property if: 1. The applicant or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party claimant; and 2. The bond shall be in an amount not less than the value of the property under replevin as declared in the affidavit of the applicant; Note: In case of disagreement as to such value, the court shall determine the same. (Id.) No claim for damages for the taking or keeping of the property may be enforced against the bond, unless the action therefor is filed within 120 days from the date of the filing of the bond. (Id.) The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant, if such bond shall be filed. (Id.) Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching property claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the SAME or SEPARATE action. (Id.) When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. (Sec. 7, Rule 60) Note: This is similar as in third-party claims in execution and in attachment. In Rule 57, Sec. 14, the affidavit is served upon the sheriff while he has possession of the attached property. In Rule 60, Sec. 7, the affidavit is served within 5 days in which the sheriff has possession, in connection with Rule 60, Sec. 6. G. PROVISIONAL REMEDIES AND INTERIM RELIEFS UNDER SPECIAL LAWS AND RULES 1. PROVISIONAL REMEDIES OF THE FAMILY COURTS (R.A. 8369) Restraining Order: The Family Court may issue a restraining order: 1. Upon a verified application for relief of abuse by: a. The complainant; or b. The victim for relief from abuse. 2. The application is based on the ground of violence among immediate family members living in the same domicile or household; and 3. Such order is directed against the accused or defendant. (Sec. 7, R.A. No. 8369) Other Reliefs That May be Awarded: The Family Court may also: a. Order the temporary custody of children in all civil actions for their custody; b. Order support pendente lite, including deduction from the salary and use of conjugal home and other properties in all civil actions for support (Id.) Page 261 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 2. HUMAN SECURITY ACT (R.A. 9372) Restriction on Travel Travel outside the municipality or city, without the authorization of the court shall be deemed a violation of the terms and conditions of his bail when the following are satisfied: 1. An application for the limitation is made by the prosecutor; 2. The evidence of guilt against the accused is not strong; 3. The person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same; and 4. The limitation is in the interest of national security and public safety. (Sec. 26, R.A. 9372) Scope of Restriction Travel can only be done WITHIN the municipality or city where the accused resides or where the case is pending. (Id.) Effect of Violation of the Restriction The bail shall be forfeited as provided under the Rules of Court. (Id.) House arrest The accused may also be placed under house arrest at his or her usual place of residence. (Id.) Restrictions when on House Arrest Accused may not use telephones, cellphones, emails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court. (Id.). Termination of Restrictions a. When the accused is acquitted; b. When the case is dismissed; c. Upon the discretion of the court; or d. Upon motion of the prosecutor or accused. (Sec. 26, R.A. 9372). Examination of Bank Deposits, Accounts, and Records The justices of the Court of Appeals, designated as a special court handling anti-terrorism cases, may authorize in writing any police or law enforcement officer, and the members of his/her team duly authorized in writing by the AntiTerrorism Council to: REMEDIAL LAW a. Examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and b. Gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. (Sec. 27, R.A. 9372) Before granting such authorization, the justices must satisfy themselves, in a hearing called for the purpose, of the existence of a probable cause that: 1. A person charged with or suspected of the crime of terrorism or, conspiracy to commit terrorism; 2. Of a judicially declared and outlawed terrorist organization, association, or group of persons; and 3. Of a member of such judicially declared and outlawed organization, association, or group of persons. (Id.). Process of the Authorization for Examination I. An ex parte application shall be filed by police or a law enforcement official who has been duly authorized in writing to file such ex parte application by the Anti-Terrorism Council to file such ex parte application; II. The application shall be filed in the Court of Appeals division designated as a special court to handle anti-terrorism cases; III. An examination under oath or affirmation of the applicant and, the witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets, and records of those whose accounts may be examined, is conducted; and IV. The special court, in writing, shall grant the authorization to any law enforcement officer and the members of his/her team duly authorized by the Anti-Terrorism Council upon: 1. Satisfaction of the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets, and records; and 2. Satisfaction of the probable cause that: i. A person charged with or suspected of the crime of terrorism or, conspiracy to commit terrorism; Page 262 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 ii. Of a judicially declared and outlawed terrorist organization, association, or group of persons; and iii. Of a member of such judicially declared and outlawed organization, association, or group of persons. (Secs. 27 & 28, R.A. 9372) Note: The bank or financial institution concerned, shall not refuse to allow such examination or to provide the desired information, when so, ordered by and served with the written order of the Court of Appeals. (Sec. 27, R.A. 9372) Note: the provisions of the human security act shall prevail over the Secrecy of Bank Deposits Act. (Id.) 3. ANTI-VIOLENECE AGAINST WOMEN AND CHILDREN ACT (R.A. 9262) Applicability of Protection Orders to Criminal Cases Provisions on protection orders shall be applicable in impliedly instituted with the criminal actions involving violence against women and their children. (Sec. 22, R.A. 9262) Purpose of a Protection Order The purpose of a protection order is to prevent further acts of violence against a woman or her child and granting other necessary relief. The relief granted should serve the purpose of: 1. Safeguarding the victim from further harm; 2. Minimizing any disruption in the victim's daily life; and 3. Facilitating the opportunity and ability of the victim to independently regain control over her life. (Sec. 8, R.A. 9262) Kinds of Protection Orders 1. Barangay protection order (BPO); 2. Temporary protection order (TPO); and 3. Permanent protection order (PPO). (Id.) Reliefs Included in Protection Orders i. Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts of violence under Sec. 5 of R.A. 9372; ii. Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise REMEDIAL LAW communicating with the petitioner, directly or indirectly; iii. Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no property rights are violated, and if respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence; iv. Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member; v. Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner's or respondent's removal of personal belongings; vi. Granting a temporary or permanent custody of a child/children to the petitioner; vii. Directing the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; viii. Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use Page 263 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on matter; ix. Restitution for actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expenses, childcare expenses and loss of income; x. Directing the DSWD or any appropriate agency to provide petitioner may need; and xi. Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief. (Id.) Note: Such reliefs shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage. (Id.) A BPO does not include all reliefs mentioned above. See further discussions below. Who May file Petition for Protection Orders a. The offended party; b. The parents or guardians of the offended party; c. The ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity or affinity; d. Officers or social workers of the DSWD or social workers of local government units (LGUs); e. Police officers, preferably those in charge of women and children's desks; f. The Punong Barangay or Barangay Kagawad; g. The lawyer, counselor, therapist or healthcare provider of the petitioner; or h. At least 2 concerned responsible citizens of the city or municipality where the violence against women and their children occurred and who has personal knowledge of the offense committed. (Sec. 9, R.A. 9262) REMEDIAL LAW Where to Apply for a Protection Order A. BPO – in accordance with the rules on venue under Section 409 of the Local Government Code, to wit: a. Those involving residents of the same barangay, then in the Punong Barangay therein; b. Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant; If the parties reside in different municipalities or cities, the Punong Barangay or any kagawad of the barangay where the victim-survivor resides shall assist the victim-survivor/applicant in filing an application for a Protection Order from the court within 2 hours from the request. (Sec. 15, IRR of R.A. 9262). The place of residence or location of the victimsurvivor/petitioner may include the place where the victim-survivor temporarily resides or where she sought refuge/sanctuary to escape from and avoid continuing violence from the respondent. (Id.). B. TPO or PPO – in the Family Court in the place of residence of the petitioner, if any. Otherwise, the application shall be filed with the RTC or MeTC/MTC with territorial jurisdiction over the place of residence of the petitioner. (Sec. 10, R.A. 9262) The place of residence of the victim-survivor may include the place where she temporarily resides or where she sought refuge/sanctuary to escape from and avoid continuing violence from the respondent. (Sec. 21, R.A. 9262) How to Apply for a Protection Order 1. The application for a protection order must be: i. In writing; ii. Signed by the applicant; and iii. Verified under oath by the applicant. 2. It may be filed as an independent action or as incidental relief in any civil or criminal case the subject matter or issues thereof partakes of a violence as described in Sec. 5 of R.A. 9262. Page 264 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 3. A standard protection order application form, written in English with translation to the major local languages, shall be made available to facilitate applications for protections order and shall contain the following information: i. names and addresses of petitioner and respondent; ii. description of relationship between petitioner and respondent; iii. a statement of the circumstances of the abuse; iv. description of the reliefs requested by petitioner as specified in Section 19 herein; v. request for counsel and reasons for such; vi. request for waiver of application fees until hearing; and vii. an attestation that there is no pending application for a protection order in another court. 4. If the applicant is not the victim, the application must be accompanied by an affidavit of the applicant attesting to: i. The circumstances of the abuse suffered by the victim; and ii. The circumstances of consent given by the victim for the filing of the application. 5. When disclosure of the address of the victim will pose danger to her life, it shall be so stated in the application. (Sec. 11, R.A. 9262) An application for protection order filed with a court shall be considered an application for both a TPO and PPO. (Id.) BPO It is a protection order issued by the Punong Barangay ordering the perpetrator to desist from committing the following acts: a. Causing physical harm to the woman or her child; or b. Threatening to cause the woman or her child physical harm. (Secs 5 (a) & (b), 14, R.A. 9262) REMEDIAL LAW communicating with the victim-survivor, directly or indirectly. (Sec. 13, IRR of R.A. 9262) It is issued by the Punong Barangay on the date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time for the issuance of the BPO. (Sec. 14, R.A. 9262) The victim-survivor/petitioner may be accompanied by any non-lawyer advocate in the proceedings before the Punong Barangay. (Sec. 14, IRR of R.A. 9262) The BPO shall state the last known address of the respondent, the date and time of issuance, and the protective remedies prayed for by the victimsurvivor/petitioner. The BPO shall be effective for 15 days. (Id.) Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same to the respondent, or direct any barangay official to effect its personal service. It is deemed served upon: a. Receipt thereof by the respondent; b. Receipt by any adult who received the BPO at the address of the respondent; c. In case the respondent or any adult at the residence of the respondent refuses, for whatever cause, to receive the BPO, by leaving a copy of the BPO at the said address in the presence of at least 2 witnesses. (Id.). The reliefs that may be granted by the BPO are: The barangay official serving the BPO must issue a certification setting forth the manner, place and date of service, including the reasons why the same remain unserved. (Id.). 1. Prohibition of the respondent from committing the acts mentioned above; 2. Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise Within 24 hours after a BPO is issued, the Punong Barangay, or in her/his absence or inability, any available Barangay Kagawad shall assist the victim-survivor/petitioner in filing for an application Page 265 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 for a TPO or PPO with the nearest court in the place of residence of the victim-survivor. (Id.). All BPOs shall be enforceable within the barangay which issued the order. The issuance of a BPO or the pendency of an application for a BPO shall not preclude the victim-survivor/petitioner from applying for, or the court from granting, a TPO or PPO. However, where a Temporary Protection has already been granted by any court, the barangay official may no longer issue a BPO. (Sec. 14, IRR of R.A. 9262). Violation of a BPO shall be punishable by imprisonment of 30 days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed. (Sec. 21, R.A. 9262) A complaint for a violation of a BPO must be filed directly with any MeTC/MTC that has territorial jurisdiction over the barangay that issued the BPO. (Id.) REMEDIAL LAW rescheduling or postponing the hearing on the merits of the issuance of a PPO. If the respondent appears without counsel on the date of the hearing on the PPO, the court shall appoint a lawyer for the respondent and immediately proceed with the hearing. In case the respondent fails to appear despite proper notice, the court shall allow ex parte presentation of the evidence by the applicant and render judgment on the basis of the evidence presented. (Id.) The court shall allow the introduction of any history of abusive conduct of a respondent even if the same was not directed against the applicant or the person for whom the applicant is made. (Id.) The court shall not deny the issuance of protection order on the basis of the lapse of time between the act of violence and the filing of the application. (Id.) Regardless of the conviction or acquittal of the respondent, the Court must determine whether or not the PPO shall become final. Even in a dismissal, a PPO shall be granted as long as there is no clear showing that the act from which the order might arise did not exist. (Id.) TPO It refers to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. (Sec. 15, R.A. 9262) A TPO may grant some or all reliefs available for a protection order. It is effective for thirty 30 days. (Id.) The court shall schedule a hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO. (Id.) PPO It is the protection order issued by the court after notice and hearing. A PPO may grant some or all reliefs available for a protection order. It shall be effective until revoked by a court upon application of the person in whose favor the order was issued. (Sec. 16, R.A. 9262) Respondents non-appearance despite proper notice, or his lack of a lawyer, or the nonavailability of his lawyer shall not be a ground for 4. ANTI-MONEY LAUNDERING ACT (R.A. 9160, AS AMENDED) Authority to Issue Freeze Order A freeze order refers to a provisional remedy aimed at blocking or restraining monetary instruments or properties in any way related to an unlawful activity, as herein defined, from being transacted, withdrawn, deposited, transferred, removed, converted, concealed, or otherwise moved or disposed without affecting the ownership thereof. (Sec. 1 (mm), Rule 2, 2018 IRR of the AMLA) Monetary instruments or properties related to an unlawful activity refers to: i. All proceeds of an unlawful activity; ii. All instrumentalities of an unlawful activity, including all moneys, expenditures, payments, disbursements, costs, outlays, charges, accounts, refunds, and other similar items for the financing, operations, and maintenance of any unlawful activity; iii. All monetary instruments or property, including monetary, financial or economic means, devices, accounts, documents, papers, items, Page 266 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 objects or things, used in or having any relation to any unlawful activity or money laundering, regardless of the current owner or possessor, and circumstances of ownership or acquisition; and iv. For purposes of freeze order and bank inquiry order: related and materially-linked accounts. (Sec. 1 (fff), Rule 2, 2018 IRR of the AMLA) The Court of Appeals may issue a freeze order of monetary instrument or property upon: 1. A verified ex parte petition by the Anti-Money Laundering Council (AMLC); and 2. After determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) of the R.A. 9160, as amended. (Sec. 10, R.A. 9160, as amended) The freeze order shall be effective immediately, which shall not exceed 6 months depending upon the circumstances of the case. (Id.) if there is no case filed against a person whose account has been frozen within the period determined by the court, the freeze order shall be deemed ipso facto lifted. (Id.) In any case, the court should act on the petition to freeze within 24 hours from filing of the petition. If the application is filed a day before a nonworking day, the computation of the 24-hour period shall exclude the nonworking days. (Id.) No court shall issue a temporary restraining order or a writ of injunction against any freeze order, except the Supreme Court. (Id.) A person whose account has been frozen may file a motion to lift the freeze order and the court must resolve this motion before the expiration of the freeze order. (Id.) Procedure for the Issuance of a Freeze Order 1. The AMLC, through the Solicitor General, files an ex parte application for a freeze order with the Court of Appeals (Sec. 2.1, Rule 2, 2018 IRR of the AMLA); 2. The application shall be in the form of a verified petition accompanied by a certificate against forum shopping, personally signed by an REMEDIAL LAW official of the AMLC (Sec. 45, A.M. No. 05-1104-SC); 3. After determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity, the Court of Appeals may issue a freeze order, which shall be effective immediately, for a period of 20 days (Sec. 2.5, Rule 2, 2018 IRR of the AMLA); 4. Before the expiration of the 20-day freeze order, the Court of Appeals shall conduct a summary hearing, with notice to the parties, to determine whether or not to modify or lift the freeze order, or to extend its effectivity. Pending resolution by the Court of Appeals, the freeze order shall remain effective. (Sec. 2.7, Rule 2, 2018 IRR of the AMLA); 5. The freeze order shall take effect immediately and shall remain effective for a total period not exceeding 6 months. (Sec. 2.8, Rule 2, 2018 IRR of the AMLA); 5. FINANCIAL REHABILITATION AND INSOLVENCY ACT (R.A. 10142) Stay or Suspension Order Stay or Suspension Order shall refer to an order issued in conjunction with the commencement order that shall: 1. Suspend all actions or proceedings, in court or otherwise, for the enforcement of claims against the debtor; 2. Suspend all actions to enforce any judgment, attachment or other provisional remedies against the debtor; 3. Prohibit the debtor from selling, encumbering, transferring or disposing in any manner any of its properties except in the ordinary course of business; and 4. Prohibit the debtor from making any payment of its liabilities outstanding as of the commencement date except as may be provided herein. (Sec. 16 (q), R.A. 10142) Exceptions to the Stay Order: The Stay or Suspension Order shall not apply to: a. Cases already pending appeal in the Supreme Court as of commencement date; b. Cases pending or filed at a specialized court or quasi-judicial agency; Page 267 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 c. Enforcement actions against sureties and other persons solidarily liable with the debtor, and third party or accommodation mortgagors as well as issuers of letters of credit, unless the property subject of the third party or accommodation mortgage is necessary for the rehabilitation of the debtor as determined by the court upon recommendation by the rehabilitation receiver; d. Action of customers or clients of a securities market participant to recover moneys and securities entrusted to the latter in the ordinary course of the latter's business as well as any action of such securities market participant or the appropriate regulatory agency or selfregulatory organization to pay or settle such claims or liabilities; e. Actions of a licensed broker or dealer to sell pledged securities of a debtor pursuant to a securities pledge or margin agreement for the settlement of securities transactions; f. Clearing and settlement of financial transactions through the facilities of a clearing agency or similar entities duly authorized, registered and/or recognized by the appropriate regulatory agency like the Bangko Sentral ng Pilipinas (BSP) and the SEC as well as any form of actions of such agencies or entities to reimburse themselves for any transactions settled for the debtor; and g. Criminal action against the individual debtor or owner, partner, director or officer of a debtor. (Sec. 18, R.A. 10142) Rehabilitation Receiver Upon the commencement of the rehabilitation proceedings through the issuance of a Commencement Order pursuant to a courtsupervised rehabilitation, a rehabilitation receiver shall be appointed. (Sec. 16 (h), R.A. 10142) The rehabilitation receiver shall be deemed an officer of the court with the principal duty of preserving and maximizing the value of the assets of the debtor during the rehabilitation proceedings, determining the viability of the rehabilitation of the debtor, preparing and recommending a Rehabilitation Plan to the court, and implementing the approved Rehabilitation Plan. (Sec. 31, R.A. 10142) REMEDIAL LAW Management During Rehabilitation The rehabilitation receiver shall not take over the management and control of the debtor. However, all disbursements, payments or sale, disposal, assignment, transfer or encumbrance of property, or any other act affecting title or interest in property, shall be subject to the approval of the rehabilitation receiver and/or the court. (Id.) Exceptions: a. Actual or imminent danger of dissipation, loss, wastage or destruction of the debtor's assets or other properties; b. Paralyzation of the business operations of the debtor; or c. Gross mismanagement of the debtor, or fraud or other wrongful conduct on the part of, or gross or willful violation of this Act by, existing management of the debtor or the owner, partner, director, officer or representative/s in management of the debtor. In which case, the court may appoint: a. The rehabilitation receiver to assume the powers of management of the debtor; or b. A management committee that will undertake the management of the debtor. (Sec. 36, R.A. 10142). "Equality is Equity" Principle During rehabilitation receivership, the assets are held in trust for the equal benefit of all creditors to preclude one from obtaining an advantage or preference over another by the expediency of an attachment, execution or otherwise. When a corporation threatened by bankruptcy is taken over by a receiver, all the creditors should stand on an equal footing. Not anyone of them should be given any preference by paying one or some of them ahead of the others. This is precisely the reason for the suspension of all pending claims against the corporation under receivership. Instead of creditors vexing the courts with suits against the distressed firm, they are directed to file their claims with the receiver who is a duly appointed officer of the SEC. (New Frontier Sugar Corporation v. Regional Trial Court, Br. 39, Iloilo City, G.R. No. 165001, 2007) Page 268 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 6. PRECAUTIONARY HOLD DEPARTURE ORDERS Nature of a Precautionary Hold-Departure Order (PHDO) It is a written order of the court commanding the Bureau of Immigration to prevent any attempt by a person suspected of a crime to depart from any Philippine airport or port. (Sec. 1, A.M. No. 18-0705-SC) A.M. No. 18-07-05-SC authorizes the issuance of a PHDO even prior to the filing of an information in court when justified under the circumstances. This recognizes the fact that the processes leading to the filing of a case usually take a while before they are concluded such that by the time the information is filed in court, the accused may have already left the country and is now beyond the reach of courts. (Garcia v. Sandiganbayan, G.R. Nos. 205904-06, 2018) PHDO are issued ex parte in cases involving crimes where: a. The minimum of the penalty prescribed by law is at least six (6) years and one (1) day; or b. The offender is a foreigner, regardless of the imposable penalty. (Sec. 1, A.M. No. 18-07-05SC). Venue for Filing A. Any RTC within whose territorial jurisdiction the alleged crime was committed, except: a. For compelling reasons, any RTC within the judicial region where the crime was committed if the place of the commission of the crime is known; b. RTCs in Manila City, Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan de Oro City for applications filed by the prosecutor based on complaints instituted by the NBI, regardless of where the alleged crime was committed. (Sec. 2, A.M. No. 1807-05-SC); B. Sandiganbayan, in cases falling within its jurisdiction. (Sec. 3, Rule VIII, 2018 Revised Internal Rules of the Sandiganbayan). REMEDIAL LAW Requirements for filing an application for PHDO 1. A motion by the complainant in a criminal complaint filed before the office of the city or provincial prosecutor; 2. Preliminary determination of probable cause based on the complaint and attachments; 3. Application filed by a prosecutor or the Office of the Ombudsman in the name of the People of the Philippines; and 4. Complaint-affidavit and its attachments, personal details, passport number and a photograph of the respondent, if available. (Sec. 3, A.M. No. 18-07-05-SC) Grounds for Issuance 1. There must be a determination by the judge or a Division of the Sandiganbayan, in whose court the application is filed, that there is: i. Probable cause, and ii. High probability that respondent will depart from the Philippines to evade arrest and prosecution of crime. 2. The judge or Division shall personally examine under oath or affirmation, in the form of searching questions and answers in writing, the applicant and the witnesses he or she may produce on facts personally known to them and attaching to the record their sworn statements. (Sec. 4, A.M. No. 18-07-05-SC) Preliminary Finding of Probable Cause The finding of probable cause by the judge or Division, which is solely based on the complaint and is specifically issued for the purpose of issuing the PHDO, is without prejudice to the resolution of the prosecutor or the Office of the Ombudsman. (Sec. 5, A.M. No. 18-07-05-SC). Dismissal of the criminal complaint by the prosecutor or the Office of the Ombudsman for lack of probable cause is a ground for the lifting of the PHDO with the RTC or Division that issued the order. (Id.) The case with the court that issued the PHDO, on motion of the prosecutor, shall be consolidated with the court where the criminal information is filed. (Id.) Page 269 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW Form and Validity of PHDO The PHDO shall contain: 1. The name of the respondent; 2. His or her alleged crime; 3. The time and place of its commission; 4. The name of the complainant; and 5. A copy of the application, personal details, passport number, photograph of the respondent, if available. (Sec. 6, A.M. No. 1807-05-SC) The order shall be valid until lifted by the issuing court as may be warranted by the result of the preliminary investigation. (Id.) Lifting of the Order Upon verified motion of respondent before the issuing court for the temporary lifting of PHDO alleging that: a. Based on the complaint-affidavit and the evidence that he or she will present, there is doubt that probable cause exists to issue the PHDO; or b. He or she is not a flight risk. (Sec. 7, A.M. No. 18-07-05-SC) The lifting of the PHDO is without prejudice to the resolution of the preliminary investigation against the respondent. (Id.) Bond Respondent is required to post a bond in an amount to be determined by the court, subject to the conditions set forth in the Order granting the temporary lifting of the PHDO. (Sec. 8, A.M. No. 18-07-05-SC) ————- end of topic ————- Page 270 of 711 SPECIAL CIVIL ACTIONS Remedial Law ATENEO CENTRAL BAR OPERATIONS 2020/21 V. SPECIAL CIVIL ACTIONS TOPIC OUTLINE UNDER THE 2020 SYLLABUS V. SPECIAL CIVIL ACTIONS A. NATURE OF SPECIAL CIVIL ACTIONS B. DISTINGUISH: ORDINARY CIVIL ACTIONS AND SPECIAL CIVIL ACTIONS C. JURISDICTION AND VENUE D. INTERPLEADER 1. Requisites for interpleader 2. When to file 3. Dismissal E. DECLARATORY RELIEF AND SIMILAR REMEDIES 1. Who may file action 2. Requisites of action for declaratory relief 3. When court may refuse to make judicial declaration 4. Conversion to ordinary action 5. Proceedings considered as similar remedies a. Reformation of an instrument b. Consolidation of ownership c. Quieting of title to real property F. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA 1. Distinctions in the application of Rule 65 to judgments of the Commission on Elections and Commission on Audit and the application of Rule 65 to other tribunals, persons and officers G. CERTIORARI, PROHIBITION, AND MANDAMUS 1. Definitions and distinctions 2. Requisites 3. When petition for certiorari, prohibition and mandamus is proper 4. Injunctive relief 5. Distinguish: certiorari, appeal by certiorari, and Article VIII, Section 1 of the Constitution 6. Distinguish: prohibition, mandamus, and injunction 7. When and where to file petition 8. Exceptions to filing of motion for reconsideration before filing petition 9. Reliefs petitioner is entitled to 10. Acts or omissions of first-level/Regional Trial Courts in election cases 11. Where to file petition 12. Effects of filing of an unmeritorious petition REMEDIAL LAW H. QUO WARRANTO 1. Distinguish: quo warranto under the Rules of Court and quo warranto under the Omnibus Election Code 2. When government commences an action against individuals or associations 3. When individual may commence an action 4. Judgment in quo warranto action I. EXPROPRIATION 1. Matters to allege in complaint for expropriation 2. Two stages in every action for expropriation 3. When plaintiff can immediately enter into possession of the real property 4. New system of immediate payment of initial just compensation 5. Defenses and objections 6. Order of expropriation 7. Ascertainment of just compensation 8. Appointment of commissioners; commissioner's report; court action upon commissioner's report 9. Rights of plaintiff upon judgment and payment 10. Effect of recording of judgment J. FORECLOSURE OF REAL ESTATE MORTGAGE 1. Kinds of foreclosure a. Judicial foreclosure b. Extrajudicial foreclosure 2. Need for special power of attorney 3. Authority to foreclose extrajudicially 4. Procedure a. Where to file b. Where to sell c. Posting requirement d. Publication requirement i. Sufficiency of newspaper publication ii. Need for republication in case of postponement iii. Personal notice to the mortgagor when and when not needed 5. Possession by purchaser of foreclosed property 6. Remedy of debtor if foreclosure is not proper 7. Redemption a. Who may redeem b. Amount of redemption price c. Period for redemption Page 272 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 d. Effect of pendency of action for annulment of sale 8. Writ of possession a. Ministerial duty of the court b. Enforcement against third parties c. Pendency of action for annulment of sale K. PARTITION 1. Who may file complaint; who should be made defendants 2. Matters to allege in the complaint for partition 3. Two stages in every action for partition 4. Order of partition and partition by agreement 5. Partition by commissioners; appointment of commissioners, commissioner's report; court action upon commissioner's report 6. Judgment and its effects 7. Partition of personal property 8. Prescription of action 9. When partition is not allowed L. FORCIBLE ENTRY AND UNLAWFUL DETAINER 1. Definitions and distinction 2. Distinguish: forcible entry, unlawful detainer, accion publiciana, and accion reivindicatoria 3. Jurisdiction in accion publiciana and accion reivindicatoria 4. Who may institute the action and when; against whom the action may be maintained 5. Pleadings allowed 6. Action on the complaint 7. When demand is necessary 8. Preliminary injunction and preliminary mandatory injunction 9. Resolving defense of ownership 10. How to stay the immediate execution of judgment 11. Prohibited pleadings and motions M. CONTEMPT 1. Kinds of contempt 2. Purpose and nature of each 3. Remedy against direct contempt; penalty 4. Remedy against indirect contempt; penalty 5. How contempt proceedings are commenced 6. Acts deemed punishable as indirect contempt 7. When imprisonment shall be imposed 8. Contempt against quasi-judicial bodies A. NATURE OF SPECIAL CIVIL ACTIONS Being a civil action, a special civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. (Rule 1, Sec. 3[a]) Both are governed by the rules for ordinary civil actions. However, the fact that an action is subject to special rules other than those applicable to ordinary civil actions is what gives a civil action its special character. (Id,). As a general rule, however, the rules governing ordinary civil actions shall apply in special civil actions insofar as they supplement or are not inconsistent with the provisions governing the latter actions. (Id.). B. DISTINGUISH: ORDINARY CIVIL ACTIONS AND SPECIAL CIVIL ACTIONS ORDINARY CIVIL ACTIONS Governed by rules for ordinary civil actions. Must be based on a cause of action meaning an act or omission has violated the rights of another. May be filed initially in either the MTC or RTC depending upon the jurisdictional amount or the nature of the action. Ordinary civil actions are filed as complaints. SPECIAL CIVIL ACTIONS Generally governed by rules for ordinary civil actions but subject to special rules. Not necessarily based on a cause of action, as in certain special civil actions: 1. Declaratory relief – no actual violation of rights; 2. Interpleader – no interest in the subject matter. There are some special civil actions which cannot be commenced in the MTC, i.e. petitions for certiorari, prohibition and mandamus. Some special civil actions are filed as complaints, but others are filed as petitions. Page 273 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Special Civil Actions Initiated by a Complaint i. Interpleader (Rule 62); ii. Expropriation (Rule 67); iii. Foreclosure of REM (Rule 68); iv. Partition (Rule 69); and v. Forcible Entry and Unlawful Detainer (Rule 71). Special Civil Actions Initiated by a Petition i. Declaratory Relief (Rule 63); ii. Review of Adjudication of COMELEC/COA (Rule 64); iii. Certiorari (Rule 65); iv. Prohibition (Rule 65); v. Mandamus (Rule 65); vi. Quo Warranto (Rule 66); vii. Contempt (Rule 71). Special Civil Actions With Two Stages 1. Expropriation; and 2. Partition. C. JURISDICTION AND VENUE See above table in Part II. JURISDICTION. D. INTERPLEADER Nature of Interpleader An interpleader is a remedy whereby a person who has property whether personal or real, in his possession, or an obligation to render wholly or partially, without claiming any right in both, or claims an interest which in whole or in part is not disputed by the conflicting claimants, comes to court and asks that the persons who claim said property or who consider themselves entitled to demand compliance with the obligation, be required to litigate among themselves, in order to determine finally who is entitled to one or the other thing. (Ocampo v. Tirona, G.R. No. 147812, 2005) Purpose of Remedy An interpleader complaint may be filed by a lessee against those who have conflicting claims over the rent due for the property leased. This remedy is for the lessee to protect himself or herself from “double vexation in respect of one liability. He or she may file the interpleader case to extinguish his or her obligation to pay rent, remove him or her from the adverse claimants’ dispute, and compel REMEDIAL LAW the parties with conflicting claims to litigate among themselves. (Lui Enterprises v. Zuellig Pharma, G.R. No. 193494, 2014) 1. REQUISITES FOR INTERPLEADER 1. There must be two or more claimants with adverse or conflicting interests to a property in the custody or possession of the plaintiff; 2. The plaintiff in an action for interpleader has no claim upon the subject matter of the adverse claims or if he has an interest at all, such interest is not disputed by the claimants; 3. The subject matter of the adverse claims must be one and the same. (Rule 62, Sec. 1). Who May File the Complaint for Interpleader The person against whom the conflicting claims are made. (Id.). Examples 1. Warehouseman – must have custody of goods claimed to be owned by two or more persons who do not have the same interest; 2. Insurer – when confronted by conflicting claims on the proceeds of an insurance policy 3. Lessee – may be filed by a lessee against those who have conflicting claims over the rent due for the property leased; or 4. Debtor – when confronted by two or more persons who do not present the same interest and are claiming the right to collect 2. WHEN TO FILE When To File The Complaint General Rule: Within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending claimants. The stakeholder should use reasonable diligence to bring the contending claimants to court—that is, by filing the interpleader suit within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending parties. Otherwise, he may be barred by laches or undue delay. (Wack Wack Golf and Country Club v. Won, G.R. No. L-23851, 1976). A stakeholder’s action of interpleader is too late when filed after judgment has been rendered Page 274 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 against him in favor of one of the contending claimants, especially where he had notice of the conflicting claims prior to the rendition of the judgment and neglected the opportunity to implead the adverse claimants in the suit where judgment was entered. (Id.) Exception: Where the stakeholder acts with reasonable diligence in view of environmental circumstances, the remedy is not barred. (Id.) Alternatively: If an action has been filed, in lieu of an interpleader, one can file an answer with allegations of conflicting claims and a third-party complaint impleading the other party. Order to Interplead Upon the filing of the complaint, an order requiring the conflicting claimants to interplead with one another shall be issued. (Sec. 2, Rule 62) If the interests of justice so require, the court may direct in the said order that the subject matter be paid or delivered to the court. (Id.) Service of Summons Summons shall be served upon the conflicting claimants together with: 1. A copy of the complaint, and 2. The order. (Sec. 3, Rule 62) Answer and Other Pleadings Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him, serving a copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these Rules. If any claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter. (Sec. 5, Rule 62; Lui Enterprises, Inc. v. Zuellig Pharma Corp., G.R. No. 193494, 2014) 3. DISMISSAL Motion to Dismiss Within the time for filing an answer (30 days), each claimant may file a motion to dismiss. (Sec. 4, Rule 62) REMEDIAL LAW Other Pleadings That May be Filed in an Interpleader i. Counterclaims (PDIC v. CA, G.R. No. 126911, 2003); ii. Cross-claims; iii. Third-party complaints; and iv. Responsive pleadings thereto as provided in the Rules (Arreza v. Diaz, Jr., G.R. No. 133113, 2001). When Court Shall Determine and Adjudicate Claims The court shall proceed to determine their respective rights and adjudicate their claims after the pleadings of the conflicting claimants have been filed and pre-trial has been conducted. (Sec. 6, Rule 62) Lien Upon the Subject Matter General Rule: The following shall constitute a lien or charge upon the subject matter: 1. Docket and other lawful fees paid by the party who filed the complaint for interpleader; and 2. Costs and litigation expenses (Sec. 7, Rule 62) Exception: Unless otherwise ordered by the court. (Id.) E. DECLARATORY RELIEF AND SIMILAR REMEDIES Declaratory Relief The purpose of the action is to secure an authoritative statement of the rights and obligations of the parties under a statute, deed, contract, etc., for their guidance in its enforcement or compliance and not to settle issues arising from its alleged breach. (Tambunting, Jr., v. Sps. Sumabat, G.R. No. 144101, 2005) 1. WHO MAY FILE THE ACTION Persons Interested in the Following Subject Matters May File a Petition a. If the subject matter is a deed, will, contract or other written instrument, any person interested in the same may file the petition; or b. If the subject matter is a statute, executive order or regulation, ordinance, or any other governmental regulation, any person whose Page 275 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 rights are affected by the same may file the petition. (Sec. 1, Rule 63) 2. The enumeration of the subject matter is exclusive. (Mangahas v. Paredes, G.R. No. 157866, 2007) 3. Who Shall Be Impleaded As Parties All persons who have or claim any interest, which would be affected by the declaration shall be made parties. (Sec. 2, Rule 63) 4. No declaration shall, except as otherwise provided in these Rules, prejudice the rights of persons not parties to the action. (Id.) 6. Rule 63, Section 2 contemplates a situation where there are other persons who would be affected by the declaration, but were not impleaded as necessary parties, in which case the declaration shall not prejudice them. The non-joinder of necessary parties is not a jurisdictional defect. It may be a ground for dismissal under Rule 63, Sec. 5. (Baguio Citizens Action Inc. v. The City Council of Baguio, G.R. No. L-27247, 1983). The following shall also be notified and entitled to be heard: 1. Solicitor General a. Where the action involves the validity of a statute, executive order or regulation, or any other governmental regulation (Sec. 3, Rule 63); or b. Where the unconstitutionality of a local gov’t ordinance is alleged (Sec. 4, Rule 63) 2. Local government unit prosecutor or attorney, where the action involves the validity of a local government ordinance. (Sec. 4, Rule 63). A notary public who is not a party to the contract is not entitled to file declaratory relief. None of his rights or duties thereunder need be declared. (Tadeo v. Prov. Fiscal of Pangasinan, G.R. No. L16474, 1962). 2. REQUISITES OF AN ACTION FOR DECLARATORY RELIEF 5. instrument, statute, executive order or regulation, or ordinance; The terms of said documents and the validity thereof are doubtful and require judicial construction; There must have been no breach of the documents in question; There must be an actual justiciable controversy or the ripening seeds of one between persons whose interests are adverse; The issue must be ripe for judicial determination; and Adequate relief is not available through other means or other forms of action or proceeding. (Almeda v. Bathala Marketing, G.R. No. 150806, 2008) No Actual Breach of Instrument An action for declaratory relief presupposes that there has been no actual breach of the instruments involved or of the rights arising thereunder. It may be entertained before the breach or violation of the statute, deed or contract to which it refers. It is a form of action that will set controversies at rest before they lead to a repudiation of obligations, an invasion of rights, and a commission of wrongs. (Aquino vs. Municipality of Malay, Aklan,, G.R. No. 211356, 2014) Actual Justiciable Controversy A justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory. (Velarde v. SJS, G.R. No. 159357, 2004) It is one which is definite and concrete, touching on all the legal relations of parties having adverse legal interests. (Imbong v. Ochoa, G.R. No. 204819, 2014) It must be a real and substantial controversy admitting of a specific relief through a decree of conclusive character. (Province of North Cotabato v. GRP Peace Panel on Ancestral Domain, G.R. No. 183591, 2008). Requisites under Jurisprudence 1. The subject matter of the controversy must be a deed, will, contract or other written Page 276 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Ripeness of Issue a. When litigation is inevitable; or b. When administrative remedies have been exhausted. (Bryan Telecommunications v. Republic, G.R. No. 161140, 2007) Under the facts of the case, there is a threatened litigation in the immediate future, which litigation is imminent and inevitable unless prevented by the declaratory relief sought. (Tolentino v. Board of Accountancy, G.R. No. L-3062, 1951) 3. WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION General Rule: The Court has the discretion, motu proprio or upon motion, to refuse to grant a declaratory relief when: a. The decision would not terminate the uncertainty or controversy which gave rise to the action; or b. The declaration or construction is not necessary and proper under the circumstances. (Sec. 5, Rule 63) Exception: If the action is for reformation of instruments, consolidation of ownership, and quieting of title – the court must decide the case. (Sec. 1, Rule 63) Other Instances When the Action for Declaratory Relief Will Not Lie: i. Action to obtain a judicial declaration of citizenship (no real controversy; other remedies available) (Lim v. Republic, G.R. No. L-30424, 1971); ii. Action to establish illegitimate filiation and actions to determine hereditary rights (lack of actual existing legal right – hereditary rights are inchoate since the parent in question is still alive) (Edades v. Edades, G.R. No. L-8964, 1956); iii. Court decisions (not among subject matters listed; violates res judicata; see Tanda v. Alday, G.R. Nos. L-9322-23, 1956); iv. Decisions of quasi-judicial agencies (for the same reason as court decisions) (Monetary Board v. Philippine Veterans Bank, G.R. No. 189571, 2015); v. Action to resolve a political question; REMEDIAL LAW vi. Those determinative of the issues rather than the construction of definite status, right or relation; vii. Where the terms of the assailed ordinance are not ambiguous or of doubtful meaning; viii. Where the contract or statute subject of the case had already been breached; (SJS v. Lina, G.R. No. 160031, 2008); ix. When the purpose of the action is merely to seek an advisory opinion from the court on a moot question. (RIANO, 2016 ed.). 4. CONVERSION TO ORDINARY ACTION If before the final termination of the case, a breach or violation of an instrument or a statute, executive order or regulation, ordinance, or any other governmental regulation should take place, the action may thereupon be converted into an ordinary action, and the parties shall be allowed to file such pleadings as may be necessary or proper. (Sec. 6, Rule 63) An action for declaratory relief presupposes that there has been no actual breach of the instruments involved or of the rights arising thereunder. It may be entertained before the breach or violation of the statute, deed or contract to which it refers. It is a form of action that will set controversies at rest before they lead to a repudiation of obligations, an invasion of rights, and a commission of wrongs. (Aquino v. Municipality of Malay, Aklan, G.R. No. 211356, 2014) The law does not require that there shall be an actual pending case. It is sufficient that there is a breach of the law, an actionable violation to bar a complaint for declaratory relief. (Borja v. Villadolid, G.R. No. L-1897, 1949) Third Party Complaint Not Allowed In a third party-complaint, the third-party plaintiff is supposed to seek contribution, indemnity, subrogation, or any other relief from the third-party defendant in respect of the claim of the plaintiff against him. This relief cannot be granted because in a declaratory relief proceeding, the court is confined merely to the interpretation of the terms of a contract. (Commissioner of Customs v. Cloribel, G.R. No. L-21036, 1977) Page 277 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Writ of Execution Not Allowed The judgment does not entail an executory process since generally, other than a declaration of such rights and duties, as these are understood in ordinary civil actions, are not sought by the proponent. However, the court can grant such other affirmative relief as may be warranted by the evidence if the complaint is sufficient to make out a case for specific performance or recovery of property with claims for damages and the defendants did not raise such issue in the trial court to challenge the remedy availed of. (Adlawan v. IAC, G.R. No. 73022, 1989) REMEDIAL LAW F. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA Scope The Rule shall govern the review of judgments and final orders or resolutions of the Commission on Elections (COMELEC) en banc and the Commission on Audit (COA). (Sec. 1, Rule 64) The judgments, final orders, or resolutions must be issued in the exercise of adjudicatory power or quasi-judicial power of the: 5. PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES. COMELEC (Ibrahim v. COMELEC, G.R. No. 192289, 2013). Reformation of an Instrument An action for reformation is not an action brought to reform a contract, but to reform the instrument evidencing the contract. (New Civil Code, Art. 1359) Rule 64 does not cover rulings of the COMELEC in the exercise of its administrative powers (Querubin, et al. v. COMELEC, G.R. No. 218787, 2015). Consolidation of Ownership The action brought to consolidate ownership is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer but for the registration of the property. (Cruz v. Leis, G.R. No. 125233, 2000; New Civil Code, Art. 1607) Quieting of Title to Real Property An action to quiet title to real property is for the removal or prevention of a cloud of title to real property or any interest by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable and may be prejudicial to said title. (New Civil Code, Art. 476) Jurisdiction over actions to quiet title to real property depends on the amount or value of the property. Note: In Actions Similar to Declaratory Relief, the court is bound to render judgment. In petitions for declaratory relief, the court may refuse to exercise the power to declare rights and to construe instruments. (Sec. 5, Rule 63) Note: Review is only of judgments, final orders or resolutions of the COMELEC en banc. (Sec. 2, Rule 64) A letter and notice that are mere issuances issued by the COMELEC are not subject to review by the Supreme Court, as the power of the Court to review the decisions of the COMELEC is limited only to final decisions, rulings and orders of the COMELEC en banc rendered in the exercise of its adjudicatory or quasi-judicial power. (Diocese of Bacolod v COMELEC, G.R. No. 205728, 2015) COA (Dela Llana v. COA, G.R. No. 180989, 2012) Decisions and orders of the COA are reviewable by the court via a petition for certiorari. However, these refer to decisions and orders which were rendered by the COA in its quasi-judicial capacity. Promulgations of the COA, under its quasi-legislative or rule-making power, is not reviewable by certiorari. (Id.) As a rule, public funds may not be disbursed absent an appropriation of law or other specific statutory authority. Commonwealth Act No. Page 278 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 327, as amended by Presidential Decree No. 1445, requires that all money claims against government must first be filed before the Commission on Audit, which, in turn, must act upon them within 60 days. Only when the Commission on Audit rejects the claim can the claimant elevate the matter to this Court on certiorari and, in effect, sue the state. (Roxas v. Republic Real Estate Corp., G.R. Nos. 208205 & 208212, 2016) Constitutional Basis: Unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. (Phil. Const. art. IX-A, Sec. 7). Note: Rule 64 does not apply to the CSC because of R.A. No. 7902 – the CA has reviewing power over the CSC. (see Rule 43, Sec. 3). Application of Rule 65 Under Rule 64 The aggrieved party may bring a judgment or final order or resolution of the COMELEC en banc and COA to the SC on certiorari under Rule 65 and not on appeal by certiorari under Rule 45. (Sec. 2, Rule 64) This refers to Rule 65 as an independent civil action, and not as a mode of appeal. The phrase “except as hereinafter provided” specifies that any petition for certiorari filed under this rule (Rule 64) follows the same requisites as those of Rule 65 except for certain provisions found only in Rule 64, such as the time given to file the petition. (The Law Firm of Laguesma, Magsalin, Consulta and Gastardo v. COA, G.R. No. 185544, 2015) 1. DISTINCTION IN THE APPLICATION OF RULE 65 AS TO JUDGMENTS OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS, AND OFFICERS RULE 64 RULE 65 Applies to final orders, May be used against judgments or interlocutory orders of resolutions. COA/COMELEC. Directed against Directed against a COMELEC en banc tribunal, board, or and COA. officer exercising judicial or quasi-judicial functions. Must be filed within 30 Must be filed within 60 days from notice of days from notice of judgment or resolution. judgment or resolution. If a motion for reconsideration (MR) or motion for new trial (MNT) were denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days in any case. If MR or MNT were denied, the aggrieved party will have another 60 days within which to file the petition (fresh 60-day period). All annexes must be Only the order assailed certified. must be certified. Time to File Petition The petition shall be filed within 30 days from notice of the judgment, final order, or resolution. (Phil. Const. art. IX, § 7) The filing of a motion for new trial or reconsideration, if allowed under the procedural rules of the COMELEC and COA, interrupts the period. If the motion is denied, petition may be filed within the remaining period or within 5 DAYS from notice of denial, whichever is longer. (Sec. 3, Rule 64). Page 279 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Note: The fresh period rule (“Neypes rule”) is not applicable. (Lokin v. COMELEC, G.R. No. 193808, 2012). Rule on Motion for Reconsideration as PreRequisite General Rule: The prerequisite filing of a Motion for Reconsideration with the COMELEC en banc is mandatory before said final en banc decision may be brought to the Supreme Court on Certiorari. (Ambil Jr. v. COMELEC, G.R. No. 143398, 2000) Failure to file a motion for reconsideration results in the dismissal of the petition. Exceptions: a. To prevent a miscarriage of justice; b. Need for relief is extremely urgent and certiorari is the only adequate remedy; c. The decision or resolution is a nullity; d. When the issue involves the principle of social justice of the protection of labor. (ABS-CBN v. COMELEC, G.R. No. 133486, 2000) REMEDIAL LAW Order to Comment If the petition is sufficient in form and substance, the respondents shall be ordered to file their comments within 10 days from notice thereof. (Sec. 6, Rule 64) Outright Dismissal of Petition: a. If the complaint is insufficient in form and substance b. If the complaint was filed manifestly for delay c. If the questions raised are too unsubstantial to warrant further proceedings (Sec. 6, Rule 64) Effect of Filing of Petition General Rule: The filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be reviewed. Exception: When the Supreme Court directs otherwise upon such terms as it may deem just. (Sec. 8, Rule 64) Page 280 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 G. CERTIORARI, PROHIBITION, AND MANDAMUS 1. DEFINITIONS AND DISTINCTIONS Certiorari, Prohibition and Mandamus - Defined and Distinguished: CERTIORARI PROHIBITION MANDAMUS To Whom It is Directed Against Directed against an entity or Directed against an entity or Directed against an entity or person exercising judicial or person exercising judicial, quasi- person exercising ministerial quasi-judicial functions. judicial, or ministerial functions. functions. Grounds Entity or person is alleged to have acted: a. Without jurisdiction; b. In excess of jurisdiction; or c. With grave abuse of discretion amounting to lack or excess of jurisdiction. Entity or person is alleged to be acting or threatening to act: a. Without jurisdiction; b. In excess of jurisdiction; or c. With grave abuse of discretion amounting to lack or excess of jurisdiction. Entity or person is alleged to have: a. Neglected a ministerial duty; or b. Excluded another from a right or office. Purpose To annul or nullify a proceeding. To have the respondent desist To have the respondent do the from further proceeding; from act required as a duty; and pay exercising jurisdiction/ power. damages. Coverage Covers discretionary acts. Covers discretionary ministerial acts. and Covers ministerial acts. Nature of Remedy Corrective remedy: To correct a Negative and preventive Affirmative or Positive: If the lack of or usurpation of remedy: To restrain or prevent performance of a duty is ordered. jurisdiction. usurpation of jurisdiction. Negative: If desistance from excluding another from a right or office is ordered. Page 281 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 REMEDIAL LAW Certiorari and Appeal by Certiorari - Distinguished: CERTIORARI AS A MODE OF APPEAL (RULE 45) CERTIORARI AS A SPECIAL CIVIL ACTION (RULE 65) A continuation of the appellate process over the An original action and not a mode of appeal. original case. Seeks to review final judgments or final orders. May be directed against an interlocutory order of the court or where no appeal or plain, speedy and adequate remedy is available in the ordinary course of law. Raises only questions of law (if directly from RTC), Raises questions of jurisdiction — that is, whether or law, fact or both (if from other courts). a tribunal, board or officer exercising judicial or quasi-judicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. Filed within 15 days from notice of judgment or final Filed within 60 days from notice of judgment, order order appealed from, or of the denial of petitioner’s or resolution sought to be assailed and in case a motion for reconsideration or new trial. motion for reconsideration or new trial is timely filed, the 60-day period is to be counted from notice of denial of said motion. Extension of 30 days may be granted for justifiable Extension is allowed only in exceptional and reasons. meritorious cases. Does not require a prior motion for reconsideration. Motion for reconsideration is a condition precedent, subject to exceptions. Stays the judgment appealed from. Does not stay the judgment or order subject of the petition, unless enjoined or restrained. Parties are the original parties with the appealing party as the petitioner and the adverse party as the respondent without impleading the lower court or its judge. The tribunal, board, officer exercising judicial or quasi-judicial functions is impleaded as primary respondent; with adverse party in the lower court (if any) as the private respondent. Filed only with SC. May be filed with SC, CA, Sandiganbayan, or RTC (observe hierarchy of courts). SC may deny the decision motu propio on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. The court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to require consideration. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court. The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or Page 282 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 CERTIORARI AS A MODE OF APPEAL (RULE 45) CERTIORARI AS A SPECIAL CIVIL ACTION (RULE 65) measures on erring lawyers for patently dilatory and unmeritorious Petitions for Certiorari. X Liberal Construction: When a Rule 45 Petition is Considered a Rule 65 Petition, and ViceVersa The Court has treated a petition for certiorari under Rule 65 as petition for review on certiorari under Rule 45 particularly 1. If the petition for certiorari was filed within the reglementary period within which to file a petition for review on certiorari; 2. When errors of judgment are averred; 3. When there is sufficient reason to justify the relaxation of the rules as when there is a significant issue of jurisdiction; and 4. When all requisites are present (RIANO (2016), pp. 230-231; City of Manila v. Grecia-Cuerdo, G.R. No. 175723, 2014) 2. REQUISITES RUNDOWN CERTIORARI, MANDAMUS OF REQUISITES PROHIBITION, FOR AND Requisites for Certiorari 1. Tribunal, board, or officer exercises judicial or quasi-judicial functions; 2. Tribunal, board, or officer has acted without or in excess of jurisdiction or with grave abuse of discretion; and 3. There is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. (Rosales v. ERC, G.R. No. 201852, 2016) Requisites for Prohibition 1. Respondent inferior court, tribunal, corporation, board, officer, or other person is exercising judicial, quasi-judicial, or ministerial functions; 2. Respondent acted without or in excess of jurisdiction, or acted with grave abuse of discretion; and 3. There must be no appeal or other plain, speedy, and adequate remedy. (Carlito Montes v. CA, G.R. No. 143797, 2006) Requisites for Mandamus 1. There must be a clear legal right or duty; 2. Respondent must be exercising a ministerial duty — a duty which is absolute and imperative, and involves merely its execution; 3. Respondent unlawfully neglects the performance of its duty or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled; and 4. No appeal or other plain, speedy, and adequate remedy in the ordinary course of law. (De Castro v. JBC, G.R. No. 191002, 2010) NOTE: All petitions must be accompanied with a certified true copy of the judgment or order subject thereof. It must be an authenticated original thereof and not a mere photocopy that must be attached to the petition filed. (REGALADO, 2008 ed.) COMMON REQUISITES FOR CERTIORARI, PROHIBITION, AND MANDAMUS Aggrieved Party The term "person aggrieved" is not to be construed to mean that any person who feels injured by the lower court's order or decision can question the said court's disposition via certiorari. In a situation wherein the order or decision being questioned underwent adversarial proceedings before a trial court, the "person aggrieved" referred to under Section 1 of Rule 65 who can avail of the special civil action of certiorari pertains to one who was a party in the proceedings before the lower court. (Siguion Reyna Montecillo and Ongsiako Law Offices v. No. Chionlo-Sia, G.R. No. 181186, 2016). Page 283 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Judicial or Quasi-Judicial Functions General Rule: Respondent tribunal, board, or officer is performing judicial or quasi-judicial functions The exercise of judicial function consists of the power to determine what the law is and what the legal rights of the parties are, and then to adjudicate upon the rights of the parties. The term quasi-judicial function applies to the action and discretion of public administrative officers or bodies that are required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature. (Ongsuco v. Hon. Malones, G.R. No. 182065, 2009) Issuance by BSP-Monetary Board of CB Circulars is done in the exercise of an executive function and thus may not be the subject of certiorari petition. (Advocates for Truth in Lending v. BSP Monetary Board, G.R. No. 192986, 2013) The Secretary of Finance in issuing Revenue Regulations based on SEC. 244 of the NRIC is in the exercise of quasi-legislative functions, hence outside the scope of certiorari. (Clark Investors Association v. Secretary of Finance, G.R. No. 200670, 2015) Exception: However, with respect to the SC, certiorari and prohibition may be issued to correct errors of jurisdiction by a person or body even if not exercising judicial, quasi-judicial, or ministerial functions where the matter is of “transcendental importance to the nation.” (Villanueva v. JBC, G.R. No. 211833, 2015) Ministerial Acts / Functions vs. Discretionary Acts / Functions MINISTERIAL ACTS DISCRETIONARY / FUNCTIONS ACTS / FUNCTIONS One which an officer The law imposes a or tribunal performs in duty upon a public a given state of facts, officer and gives him in a prescribed the right to decide how manner, in obedience or when the duty shall to the mandate of a be performed. (Mallari legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety done. v. Banco Filipino Savings & Mortgage Bank, G.R. No. 157600, 2008). Jurisdictional Errors a. Without jurisdiction – Respondent does not have the legal power to determine the case (Sps. Dacudao v. SOJ, G.R. No. 186056, 2013). b. Excess of jurisdiction – Respondent, being clothed with the power to determine the case, oversteps his authority as determined by law. c. Grave abuse of discretion – generally refers to a "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be patent and gross so as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law. (Atty. Allan Hilbero v. Florencia Morales, Jr., G.R. No. 198760, 2017). No Appeal, Plain, Speedy and Adequate Remedy It is the inadequacy, and not the mere absence of all other legal remedies and the failure of justice without the writ, that must usually determine the propriety of certiorari or prohibition. A remedy is plain, speedy, and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment, order, or resolution of the lower court of agency. (Morales v. CA, G.R. Nos. 217126-27, 2015). Certiorari is a remedy of last resort. It is not available if the party still has another speedy and adequate remedy (such as appeal) available. (Tolentino v. COMELEC, G.R. Nos. 218536, 2016). An adequate remedy has been defined as a remedy which is equally beneficial, speedy and sufficient, not merely a remedy which at some time in the future will bring about a revival of the judgment of the lower court complained of in the certiorari proceeding, but a remedy which will Page 284 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court or tribunal. (PSALM v. Maunlad Homes, Gr No. 215933, 8 Februrary 2017). 3. WHEN PETITION FOR CERTIORARI, PROHIBITION OR MANDAMUS IS PROPER Preliminary Considerations The hierarchy of courts should serve as a general determinant of the appropriate forum for Rule 65 petitions. The concurrence of jurisdiction among the Supreme Court, Court of Appeals and the Regional Trial Courts to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction does not give the petitioners the unrestricted freedom of choice of forum. (Kalipunan ng Damayang Mahihirap, Inc. v. Robredo, G.R. No. 200903, 2014) In order to properly proceed against the respondent, an aggrieved party [under Rule 65] must choose the proper remedy. The choice depends on which function – quasi-judicial, quasilegislative, and administrative – the respondent has discharged in doing the assailed action. (Capalla v. COMELEC, G.R. No. 201112, 2012, Bersamin, J., concurring) Certiorari, Prohibition, or Mandamus as an Independent Action An application for certiorari is an independent action which is not part or a continuation of the trial which resulted in the rendition of the judgment complained of. Impliedly, a petition for certiorari pending before a higher court does not necessarily become moot and academic by a continuation of the proceedings in the court of origin. (Sps. Juan Diaz v. Jose Diaz, G.R. No. 135885, 2000). CERTIORARI A petition for certiorari is proper when all the requisites are complied with. Certiorari Not Available When Appeal is Available General Rule: Where appeal is available to the aggrieved party, certiorari will not prosper, even if the ground is grave abuse of discretion. (Freedom REMEDIAL LAW from Debt Coalition v. MWSS, G.R. No. 173004, 2007) When the remedy by appeal had already been lost due to the petitioner’s own neglect or error in the choice of remedies, certiorari cannot lie. The two remedies are mutually exclusive. (MERALCO v. CA, G.R. No. 88396, 1990). Exceptions: Even when appeal is available and is the proper remedy, SC has allowed a writ of certiorari: a. Where the appeal does not constitute a speedy and adequate remedy; b. Where the orders were also issued either in excess of or without jurisdiction; c. For certain special considerations, as public welfare or public policy; d. Where, in criminal actions, the court rejects rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy; e. Where the order is a patent nullity; and f. Where the decision in the certiorari case will avoid future litigations. (REGALADO, 2008 ed.) Even when the period for appeal has lapsed, SC has allowed a writ of certiorari: a. When appeal is lost without the appellants’ negligence; b. When public welfare and the advancement of public policy dictates; c. When the broader interest of justice so requires; d. When the writs issued are null and void; and e. When the questioned order amounts to an oppressive exercise of judicial authority. (Sunbeam Convenience Foods v. CA, G.R. No. 50464, 1990) A Motion for Reconsideration is Required Before Filing a Petition for Certiorari General Rule: A motion for reconsideration is a condition sine qua non for the filing of a petition for certiorari. Its purpose is to grant an opportunity for the court to correct any actual or perceived error attributed to it by re-examination of the legal and factual circumstances of the case. Page 285 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 Exceptions: a. Where the order is a patent nullity, as where the court a quo has no jurisdiction; b. Where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; c. Where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or of the petitioner or the subject matter of the action is perishable; d. Where, under the circumstances, a motion for reconsideration would be useless; e. Where petitioner was deprived of due process and there is extreme urgency for relief; f. Where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; g. Where the proceedings in the lower court are a nullity for lack of due process; h. Where the proceeding were ex parte or in which the petitioner had no opportunity to object; or i. Where the issue raised is one purely of law or where public interest is involved. (Republic of the Philippines v. Abdulwahab A. Bayao, G.R. No. 179492, 2013) Certiorari is Not a Proper Remedy to Appeal a Motion to Quash General Rule: The proper action is to continue with the trial and reiterate the special defenses invoked in the motion to quash. Exception: Certiorari is proper when there is grave abuse of discretion. (Lazarte v. Sandiganbayan, G.R. No. 180122, 2009) Certiorari is the Proper Remedy to Appeal a Declaration of Presumptive Death The Family Code was explicit that the court’s judgment in summary proceedings, such as the declaration of presumptive death of an absent spouse, shall be immediately final and executory. An aggrieved party may, nevertheless, file a petition for certiorari under Rule 65 to question any abuse of discretion amounting to lack or excess of jurisdiction that transpired. (Republic v. Cantor, G.R. No. 184621, 2013) REMEDIAL LAW RTC ruled in favor of private respondents. Upon the special civil action of certiorari, the CA dismissed the petition on the ground of lack of jurisdiction. Petitioner filed another special civil action of certiorari assailing the CA’s resolution. Petitioner should have filed a petition for review on certiorari under Rule 45, which is a continuation of the appellate process over the original case. However, in accordance with the liberal spirit pervading the Rules of Court and in the interest of substantial justice, this Court has, before, treated a petition for certiorari as a petition for review on certiorari, particularly: a. If the petition for certiorari was filed within the reglementary period within which to file a petition for review on certiorari; b. When errors of judgment are averred; and c. When there is sufficient reason to justify the relaxation of the rules. (The City of Manila v. Hon. Grecia-Cuerdo, G.R. No. 175723, 2014) Small Claims – Certiorari Is Proper Considering the final nature of a small claims case decision under Sec. 23 of the Rules of Procedure for Small Claims Cases, the remedy of appeal is not allowed, and the prevailing party may, thus, immediately move for its execution. Nevertheless, the proscription on appeals in small claims cases, similar to other proceedings where appeal is not an available remedy, does not preclude the aggrieved party from filing a petition for certiorari under Rule 65 of the Rules of Court. (A.L. Ang Network v. Mondejar, G.R. No. 200804, 2014) Certiorari and Not Mandamus May be Issued Against the JBC Although the JBC does not fall within the scope of a tribunal, board, or officer exercising judicial or quasi-judicial functions, in the process of selecting and screening applicants, the JBC neither acted in any judicial or quasi-judicial capacity nor assumed unto itself any performance of judicial or quasijudicial prerogative. However, since the formulation of guidelines and criteria, including the policy that the petitioner now assails, is necessary and incidental to the exercise of the JBC’s constitutional mandate, a determination must be made on whether the JBC has acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing and enforcing the said policy. Page 286 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 (Villanueva v. Judicial & Bar Council, G.R. No. 211833, 2015) The writ of mandamus does not issue to control or review the exercise of discretion or to compel a course of conduct, which, it quickly seems to us, was what the petitioner would have the JBC do in his favor. The function of the JBC to select and recommend nominees for vacant judicial positions is discretionary, not ministerial. (Id.). of filing a motion to quash. (Aurillo v. Rabi, G.R. No. 120014, 2002); c. Where the acts sought to be enjoined were performed after the injunction suit is brought. (Versoza v. Martinez, G.R. No. 119511, 1998) When Prohibition Proper Prohibition is the remedy where a motion to dismiss is improperly denied. (Enriquez v. Macadaeg, G.R. No. L-2422, 1949) PROHIBITION MANDAMUS Respondent in Prohibition An inferior court, tribunal, corporation, board, officer, or other person, exercising a. Judicial; b. Quasi-judicial; or c. Ministerial functions. (Sec. 2, Rule 65) Respondent in Mandamus An inferior court, tribunal, corporation, board, officer, or other person neglecting the performance of an act which the law specifically enjoins as a duty or unlawfully excluding another from the use and enjoyment of a right or office to which the petitioner is entitled. (Sec. 3, Rule 65). When what is at contest is the power and authority of a private organization, composed of several members-organizations, which power and authority were vested to it by its own members, prohibition will not lie. The definition and purpose of a writ of prohibition excludes the use of the writ against any person or group of persons acting in a purely private capacity, and the writ will not be issued against private individuals or corporations so acting. (Destileria Limtuaco & Co. v. Advertising Board of the Philippines, G.R. No. 164242, 2008) Accomplished Facts / Fait Accompli General rule: A petition for prohibition is intended to prohibit or prevent FUTURE acts done without authority or jurisdiction, and is not proper for acts already accomplished. Exceptions: Even when an act is already fait accompli, SC has allowed a writ of prohibition: a. Where it would prevent the creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and stealthily completing the commission of such illegality. (Tan v. Comelec, G.R. No. 73155, 1986); b. Where it would provide a complete relief by not only preventing what remains to be done but by undoing what has been done, such as terminating a preliminary investigation instead Nature and Purpose of Mandamus The writ of mandamus lies to enforce the execution of an act, when, otherwise, justice would be obstructed; and, regularly, issues only in cases relating to the public and to the government; hence, it is called a prerogative writ. To preserve its prerogative character, mandamus is not used for the redress of private wrongs, but only in matters relating to the public. (Uy Kiao Eng. v. Nixon Lee, G.R. No. 176831, 2010). Mandamus Proper When There is the Existence of a Clear Legal Right A clear legal right is a right which is indubitably granted by law or inferable as a matter of law. If the right is clear and the case is meritorious, objections raising merely technical questions will be disregarded. But where the right sought to be enforced is in substantial doubt or dispute, mandamus cannot issue. (Angeles v. Secretary of Justice, G.R. No. 142549, 2010) A Petition For Mandamus Was Considered Proper In The Following Instances: a. To compel the Ombudsman to dismiss a case which was pending before him for 6 years, which was considered a violation of the constitutional duty to “promptly act on complaints file. (Angchangco v. Ombudsman, G.R. No. 122728, 1997); Page 287 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 b. To compel a judge to issue a writ of execution pending appeal of a decision in an ejectment case, where the defendant appellant failed to make the necessary deposits of rentals pending appeal. (Vda. De Carbungco v. Amparo, G.R. No. L-2245, 1949) Mandamus Not Proper in the Following Cases: i. To enforce purely contractual obligations; ii. When there is another speedy and adequate remedy; iii. To compel a school to readmit students, and/or to confer academic honors, in violation of the school’s academic freedom. (University of San Agustin v. CA, G.R. No. 100588; University of San Carlos v. CA, G.R. No. 79237 1988); iv. To compel the performance of an act already done, such as to include one’s name in the list of graduates and allow him to take part in the graduation exercises, as the same was moot since the graduation ceremony had already pushed through. (Cudia v. The Superintendent of the PMA, G.R. No. 211362, 2015) Mandamus May Not be Used to Compel Discretionary Duties; Exception General Rule: Mandamus is applicable to a ministerial duty. Exception: As for discretionary duties, it can be used to the extent of requiring performance of a discretionary duty to act but not to require performance of such duty in a particular manner. (BF Homes v. NWRC, G.R. No. 78529, 1987) Exceptions to the Exception: The respondent can be ordered to act in a particular manner to control discretion when there is: a. Grave abuse of discretion; b. Manifest injustice; or c. Palpable excess of authority. (M.A. Jimenez Enterprises v. Ombudsman, G.R. No. 155307, 2011) 4. INJUNCTIVE RELIEF The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case, unless a temporary restraining REMEDIAL LAW order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case. (Sec. 7, Rule 65) The public respondent shall proceed with the principal case within 10 days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. (Sec. 7, A.M. No. 07-7-12SC) 5. DISTINGUISH: CERTIORARI, APPEAL BY CERTIORARI, AND ARTICLE VIII, SECTION 1 OF HE CONSTITUTION See above discussion on Certiorari vs. Appeal by Certiorari. Certiorari and Prohibition are Appropriate Remedies to Contest the Validity of Acts of Any Branch or Agency of Government, Under Article VIII Section 1 of The Constitution Judicial power includes duty of the courts to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Ermita v. Aldecoa-Delorino, G.R. No. 177130; 2011; Francisco v. Toll Regulatory Board, G.R. No. 166910, 2010) 6. DISTINGUISH: PROHIBITION, MANDAMUS, AND INJUNCTION Injunction Distinguished from Prohibition and Mandamus PREVENTIVE/PROHI BITORY PROHIBITION INJUNCTION An order requiring a A judgment party litigant to refrain commanding a from a particular act. tribunal, corporation, board, officer, or person, whether exercising judicial, quasi-judicial or ministerial functions, to desist from further Page 288 of 711 ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2020/21 Ordinary civil action; may deal with factual or legal issues. Directed against a litigant. MANDATORY INJUNCTION An order requiring a party litigant to perform a particular act in order to restore the last actual peaceable uncontested status which preceded the pending controversy. Ordinary civil action; may deal with factual or legal issues. Directed against a litigant. proceeding in the action or matter specified therein because it acts without or in excess of its or his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. (Sec. 2, Rule 65) Special civil action; refers to issues of jurisdiction only. Directed against a tribunal, corporation, board, or officer. PROHIBITION A judgment commanding a tribunal, corporation, board, officer, or person, unlawfully neglecting the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excluding another from the use and enjoyment of a right or office to which such order is entitled to do the act required to be done to protect the rights of the petitioner. (Sec. 3, Rule 65) Special civil action; refers to issues of jurisdiction only. Directed against a tribunal, corporation, board, or officer. Mandamus and Injunction Distinguished MANDAMUS Special civil action. INJUNCTION Ordinary civil action. Directed against a Directed tribunal, corporation, litigant. board, or officer. Purpose is for the tribunal, corporation, board, or officer to perform a ministerial and legal duty. against a Purpose is to either compel the defendant to refrain from performing an act or to perform any act - not necessarily a legal and ministerial duty. 7. WHEN AND WHERE TO FILE PETITION When to file petition Within 60 days from notice of the assailed judgment, order or resolution. In case a motion for reconsideration or a motion for a new trial is timely filed: within 60 days from notice of the denial of said motion. (Sec. 4, Rule 65) Where to File Petition a. If the petition relates to the acts or omissions of a lower court, corporation, board, or officer or person: RTC exercising jurisdiction over the territorial area as defined by the SC. b. If the petition relates to the acts or omissions of a quasi-judicial agency: Cognizable only by the CA; c. To the Sandiganbayan or the Court of Appeals, whether or not in aid of the court’s appellate jurisdiction. (Id.) Note: R.A. 10660 provides that the Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, that the Page 289 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 jurisdiction over these petitions shall not be exclusive of the Supreme Court. Hierarchy of Courts General Rule: The filing of a petition under Rule 65 must follow the hierarchy of courts. Thus, direct resort to the Supreme Court will not be entertained. Exception: Unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of the Supreme Court’s primary jurisdiction. (Santiago v. Vasquez, G.R. Nos. 99289-90, 1993) 8. EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION BEFORE FILING PETITION General Rule: A motion for reconsideration is a sine qua non requirement before filing a petition under Rule 65. (Romy’s Freight Service v. Castro, G.R. No. 141637; Nuque v. Aquino, G.R. No. 193058, 2015) Exceptions: a. Where the order questioned is a patent nullity; b. Where the questions raised in the certiorari proceeding have already been duly raised and passed upon by the lower court or are the same as those raised and passed upon in the lower court; c. Where there is an urgent necessity for the resolution of the question; d. Where an MR would be useless or is prohibited; e. Where petitioner is deprived of due process; f. Where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; g. Where the issue raised is one purely of law or where public interest is involved; h. Where the proceedings in the lower court are a nullity for lack of due process; i. Where the proceeding was ex parte or in which the petitioner had no opportunity to object; and j. Where the subject matter of the action is perishable. REMEDIAL LAW 9. RELIEFS PETITIONER IS ENTITLED TO The primary reliefs available to petitioner are: a. Petition of certiorari – That the judgment, order, or resolution subject of the petition for certiorari be annulled or modified. (Sec. 1, Rule 65); b. Petition for prohibition – That the respondent be ordered to desist from further proceedings in the action or matter specified in the petition for prohibition. (Sec. 2, Rule 65); or c. Petition for mandamus – That the respondent, immediately or at some other time to be specified by the court, do the act required to be done to protect the petitioner’s rights, and to pay the damages sustained by the petitioner by reason of the respondent’s wrongful acts (Sec. 3, Rule 65) Common to certiorari, prohibition and mandamus – The court may grant such incidental reliefs as law and justice may require. It may also award damages. (Sec. 9, Rule 65). This may include provisional remedies, final injunctions, mandatory injunctions to return the parties to the status quo, etc. 10. ACTIONS OR OMISSIONS OF FIRSTLEVEL/REGIONAL TRIAL COURTS IN ELECTION CASES In election cases involving an act or omission of the MTC or RTC, the petition for certiorari shall be filed exclusively with the COMELEC, in aid of its appellate jurisdiction. (Sec. 4, Rule 65) 11. WHERE TO FILE PETITION See above discussion on When and Where to File Petition. 12. EFFECTS OF FILING OF AN UNMERITORIOUS PETITION The court may dismiss the petition for being unmeritorious—that is [PPQ]: a. It is patently without merit; b. It is prosecuted manifestly for delay; or c. If the questions raised therein are too unsubstantial to require consideration. Page 290 of 711 ATENEO CENTRAL BAR OPERATIONS 2020/21 In this case, the court may award treble costs in favor of the respondent solidarily against the petitioner and counsel. It may also subject the counsel to administrative actions under Rules 139 and 139-B of the Rules of Court. The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari. (Sec. 8, Rule 65 as amended by A.M. No. 07-7-12-SC) H. QUO WARRANTO Quo Warranto A petition for quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not wellfounded, or if he has forfeited his right to enjoy the privilege. Where the action is filed by a private person, he must prove that he is entitled to the controverted position; otherwise, respondent has a right to the undisturbed possession of the office. (Velasco v. Belmonte, G.R. No. 211140, 2016) Object of Quo Warranto 1. Determine the right of a person to use or exercise of a franchise or office; and 2. Oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the office. (Tecson v. COMELEC, G.R. No. 161434, 2004) Nature of a Quo Warranto 1. It is a direct, not a collateral attack, on the matter assailed. 2. It is a proceeding against a public officer, not in his official capacity, because no official power or right or duty is sought, but because the officer’s title to the office is being questioned. 3. It is a proceeding of a public nature filed by a prosecuting attorney ex officio such as by the Solicitor General or fiscal. (But it is personal in nature as to the person claiming office) REMEDIAL LAW Who May Commence an Action for Quo Warranto A. The Solicitor General or a public prosecutor [MANDATORY quo warranto]; a. Upon direction of the President; b.

[2021 BLUE NOTES] REMEDIAL LAW

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