GENERAL PRINCIPLES
7.
I. GENERAL PRINCIPLES
Court decisions (Herrera, Vol. I, p. 2, 2007
ed.)
A. CONCEPT OF REMEDIAL LAW
Q: What is procedural rule?
Q: What is the concept of remedial law?
A: It is a branch of public law, which prescribes the
procedural rules to be observed in litigations,
whether civil, criminal, or administrative, and in
special proceedings, as well as the remedies or
reliefs available in each case. (2006 Bar Question)
Q: What is the importance of remedial law?
A: It plays a vital role in the administration of
justice. It lies at the very core of procedural due
process, which means a law which hears before it
condemns, which proceeds upon inquiry and
renders judgment only after trial, and contemplates
an opportunity to be heard before judgment is
rendered (Herrera, Vol. I, p. 1, 2007 ed.)
B. SUBSTANTIVE LAW AS DISTINGUISHED FROM
REMEDIAL LAW
A: Procedural rule is the judicial process for
enforcing rights and duties recognized by
substantive law and for justly administering remedy
and redress for their disregard or infraction.
Note: If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the right
to appeal, it may be classified as substantive matter;
but if it operates as a means of implementing an
existing right, then the rule deals merely with
procedure (Fabian v. Desierto, G.R. No. 129742, Sept.
16, 1998).
Q: How are remedial laws implemented in our
system of government?
A: They are implemented through the judicial
system, including the prosecutory service of courts
and quasi-judicial agencies. (2006 Bar Question)
Q: Distinguish substantive and remedial law
C. RULE-MAKING POWER OF THE SUPREME COURT
A:
1. LIMITATIONS ON THE RULE-MAKING POWER OF
THE SUPREME COURT
Substantive Law
Remedial Law
Part of the law which
Refers to the legislation
creates, defines or
providing means or
regulates rights concerning methods whereby causes
life, liberty or property or
of action may be
the powers of agencies or
effectuated, wrongs
instrumentalities for the
redressed and relief
administration of public
obtained (also known as
affairs.
Adjective Law).
Does not create vested
Creates vested rights.
rights
Retroactive in
Prospective in application.
application
The Supreme Court is
expressly empowered to
Cannot be enacted by the
promulgate procedural
Supreme Court.
rules. (2006 Bar
Question)
Q: What are the principal sources of remedial law?
A:
1.
2.
3.
4.
5.
6.
Constitution
Different laws creating the judiciary,
defining and allocating jurisdiction to
courts of different levels
Procedural laws and rules promulgated by
the Supreme Court
Circulars
Administrative orders
Internal rules
Q: What are the limitations on the rule-making
power of the Supreme Court?
A:
1.
2.
3.
It shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases.
The rules must be uniform for all the
courts of the same grade.
The rules must not diminish, increase or
modify substantive rights (Cruz, Philippine
Political Law, p. 281, 2002 ed.)
2. POWER OF THE SUPREME COURT TO AMEND
AND SUSPEND PROCEDURAL RULES
Q:
May the Supreme Court suspend the
application of the Rules of Court and exempt a
case from its operation?
A: Yes. In the interest of just and expeditious
proceedings, the Supreme Court may do so because
the Rules were precisely adopted with the primary
objective of enhancing fair trial and expeditious
justice. (Republic v. CA, G.R. No. L-31303, May 31,
1978)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
1
UST GOLDEN NOTES 2011
D. NATURE OF PHILIPPINE COURTS
1. MEANING OF A COURT
Q: What is a court?
Q: Distinguish Courts of general jurisdiction from
special jurisdiction.
A: It is an organ of the government, belonging to
the judicial department, whose function is the
application of laws to controversies brought before
it and the public administration of justice. (Bla k’s
Law Dictionary)
2. COURT AS DISTINGUISHED FROM A JUDGE
Q: Distinguish court from a judge
Court
Entire body in which the
judicial power is vested
May exist without a
present judge
Disqualification of a
judge does not affect
the court
Judge
Only an officer or
member of the court
There may be a judge
without a court
May be disqualified
3. CLASSIFICATION OF PHILIPPINE COURTS
Q: What are the classifications of Philippine
courts?
A:
1.
2.
3.
5. COURTS OF GENERAL AND SPECIAL
JURISDICTION
Regular courts (Supreme Court, Court of
Appeals,
Regional
Trial
Courts,
Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts ,
Municipal Circuit Trial Courts)
Special courts (Sandiganbayan, Court of
Tax Appels, Shari'a District Courts, Shari'a
Circuit Courts)
Quasi-courts or Quasi-judicial agencies
(e.g Civil Service Commission)
4. COURTS OF ORIGINAL AND APPELLATE
JURISDICTION
A:
Courts of General
jurisdiction
Takes cognizance of all
cases , civil or criminal,
of a particular nature, or
courts whose judgment
is conclusive until
modified or reversed on
direct attack, and who
are competent to decide
on their own jurisdiction
6. CONSTITUTIONAL AND STATUTORY COURTS
Q: Distinguish constitutional court from statutory
court.
A:
Constitutional Court
Created by the constitution
e.g. SC
Cannot be abolished by
Congress without amending
the Constitution
Q: Distinguish Courts of law from equity.
A:
Courts of Law
Any tribunal duly
administering the
laws of the land
Courts of Equity
Any tribunal administering
justice outside the law, being
ethical rather than jural and
belonging to the sphere of
morals rather than of law. It is
grounded on the precepts of
conscience and not on any
sanction of positive law, for
equity finds no room for
application where there is law.
(Herrera, Vol. I, p. 18, 2007 ed.)
Decides a case
according to what
the promulgated
law is
Adjudicates a controversy
according to the common
precepts of what is right and
just without inquiring into the
terms of the statutes
A:
2
Courts of Appellate
jurisdiction
Superior Courts reviewing
and deciding cases
previously decided by a
lower court
Statutory Court
Created by law
e.g. CTA
May be abolished by
Congress by just simply
repealing the law
which created those
courts
7. COURTS OF LAW AND EQUITY
Q: Distinguish Courts of original jurisdiction from
Courts of appellate jurisdiction.
Courts of Original
jurisdiction
Courts exercising
jurisdiction in the first
instance
Courts of Special
jurisdiction
Takes cognizance of
special jurisdiction 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
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
GENERAL PRINCIPLES
Q: What are courts of record?
A: These are courts whose proceedings are enrolled
and which are bound to keep written records of all
trials and proceedings handled by them. R.A. No.
6031 mandates all Municipal Trial Courts to be
courts of record.
8. PRINCIPLE OF JUDICIAL HIERARCHY
Q: What is the policy of Judicial Hierarchy or
hierarchy of courts?
A: A higher court will not entertain direct resort to
it unless the redress desired cannot be obtained in
the appropriate courts. The Supreme Court is a
court of last resort and must so remain if it is to
satisfactorily perform assigned to it. (1996 Bar
Question)
9. DOCTRINE OF NON-INTERFERENCE OR
DOCTRINE OF JUDICIAL STABILITY
Q: What is Doctrine of Non-Interference or Judicial
Stability?
A: Courts of equal and coordinate jurisdiction
a ot i te fe e ith ea h othe s o de s. Thus, the
RTC has no power to nullify or enjoin the
enforcement of a writ of possession issued by
another RTC. The principle also bars a court from
reviewing or interfering with the judgment of a coequal court over which it has no appellate
jurisdiction or power of review.
Note: GR: No court has the authority to interfere by
injunction with the judgment of another court of
coordinate jurisdiction or to pass upon or scrutinize
and much less declare as unjust a judgment of another
court.
XPN: The doctrine does not apply where a third party
claimant is involved (Santos v. Bayhon, G.R. No. 88643,
July 23, 1991).
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
3
UST GOLDEN NOTES 2011
II. JURISDICTION
Q: Distinguish jurisdiction over the subject matter
from jurisdiction over the person.
Q: What is jurisdiction?
A:
A: It is the power and authority of a court to try,
hear, and decide a case and to carry its judgments
into effect (Latin: juris a d dico, hi h lite all
means I speak of the law ).
Q: Is the state e t that Ju isdi tio is o fe ed
su sta ti e la a u ate?
A: No, because only jurisdiction over the subject
matter is conferred by substantive law. Jurisdiction
over the parties, issues and res is governed by
procedural laws.
A. JURISDICTION OVER THE PARTIES
1. HOW JURISDICTION OVER THE PLAINTIFF IS
ACQUIRED
Q: How is jurisdiction over the plaintiff acquired?
A: It is acquired from the moment of filing the
complaint, petition or initiatory pleading.
2. HOW JURISDICTION OVER THE DEFENDANT IS
ACQUIRED
Q: How is jurisdiction over the defendant
acquired?
A: It is acquired either:
a. By his voluntary appearance in court and
his submission to its authority
b. By service of summons
c. Other coercive process upon him
Note: Jurisdiction over the defendant is not essential
in actions in rem or quasi in rem as long as the court
has jurisdiction over the res (Herrera, Vol. I, p. 114,
2007 ed.)
B. JURISDICTION OVER THE SUBJECT MATTER
1. MEANING OF JURISDICTION OVER THE SUBJECT
MATTER
Q: What is jurisdiction over the subject matter?
Jurisdiction Over the Subject
Matter
Determined by the allegations
of the complaint (Riano, Civil
Procedure: A Restatement for
the Bar, p. 144, 2009 ed.)
XPN: Where the real issues
are evident from the record
of the case, jurisdiction over
the subject matter cannot be
made to depend on how the
parties word or phrase their
pleadings (Herrera, Vol. I, p. 2,
2007 ed.) e.g. in ejectment
cases in which the defendant
averred the defense of the
existence of tenancy
relationship between the
parties (Ibid p.148)
Jurisdiction Over the
Person
Acquired by the filing
of the petition in case
of the plaintiff or by
arrest (Rule 113), by
valid service of
summons or voluntary
submission to the
ou t s autho it i
case of the defendant
(Ibid. p. 158)
Note: Tenancy relationship is
not presumed and it is not
enough that it is alleged. There
must be evidence to prove that
it exists and that all its
elements
are
established
(Salmorin v. Zaldivar, G.R. No.
169691, July 23, 2008).
Conferred by law which may
be either the Constitution or
a statute (Ibid. p. 143)
Cannot be conferred by the
agreement of the parties, by
o t a to
pa ties sile e
or acquiescence Ibid. p. 144)
It is sometimes made
to depend, indirectly
at least, o the pa t s
volition
GR: The appearance of
the defendant in
whatever form is
submission to the
jurisdiction of the
court
XPN: If the
appearance is to
object or question the
ou t s ju isdi tio
(Ibid. p. 161)
Note: In criminal cases,
jurisdiction over the
accused is always
required
A: It is the power to deal with the general subject
involved in the action, and means not simply
jurisdiction of the particular case then occupying
the attention of the court but jurisdiction of the
class of cases to which the particular case belongs.
It is the power or authority to hear and determine
cases to which the proceeding in question belongs.
4
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
JURISDICTION
2. JURISDICTION VERSUS THE EXERCISE OF
JURISDICTION
Q: Distinguish jurisdiction from exercise of
jurisdiction.
A: Jurisdiction is the authority to hear and decide
cases. On the other hand, exercise of jurisdiction is
any act of the court pursuant to such authority,
which includes making decisions.
3. ERROR OF JURISDICTION AS DISTINGUISHED
FROM ERROR OF JUDGMENT
5. DOCTRINE OF PRIMARY JURISDICTION
Q: What is Doctrine of Primary Jurisdiction?
A: 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 and experience of said tribunal in
determining technical and intricate matters of fact
(Villaflor v. CA, G.R. No. 95694, Oct. 9, 1997).
Q: Distinguish error of jurisdiction from error of
judgment.
Q: What is Doctrine of Ancillary Jurisdiction?
A:
A: It involves the inherent or implied powers of the
court to determine issues incidental to the exercise
of its primary jurisdiction.
Error of Jurisdiction
One where the court,
officer or quasi-judicial
body acts without or in
excess of jurisdiction, or
with grave abuse of
discretion
Renders a judgment void
or at least voidable
Correctible by certiorari
There is an exercise of
jurisdiction in the
absence of jurisdiction
Error of Judgment
One that the court may
commit in the exercise of
jurisdiction; it includes
errors of procedure or
istakes i the ou t s
findings
Does ot ake the ou t s
decision void
Correctible by appeal
The court acted with
jurisdiction but
committed procedural
errors in the appreciation
of the facts or the law
(1989 Bar Question)
4. HOW JURISDICTION IS CONFERRED AND
DETERMINED
Note: discussion on how jurisdiction is conferred is on
page 4.
Q: What are the instances in which jurisdiction
cannot be conferred?
A:
1.
2.
3.
4.
5.
6.
By the administrative policy of any court;
A
ou t s u ilate al assu ptio
of
jurisdiction;
An erroneous belief by the court that it
has jurisdiction;
By the parties through a stipulation e.g.
contract;
The agreement of the parties acquired
through, or waived, enlarged or
diminished by, any act or omission of the
parties;
Parties silence, acquiescence or consent
(Riano, Civil Procedure: A Restatement for
the Bar, p. 143, 11th ed.).
Note: Under its ancillary jurisdiction, a court may
determine all questions relative to the matters
brought before it, regulate the manner in which a trial
shall be conducted, determine the hours at which the
witnesses and lawyers may be heard, and grant an
injunction, attachment or garnishment.
6. DOCTRINE OF ADHERENCE TO JURISDICTION
Q: What is Doctrine of Adherence to Jurisdiction or
Continuity of Jurisdiction?
A:
GR: Jurisdiction, once attached, cannot be
ousted by subsequent happenings or events
although of a character which would have
prevented jurisdiction from attaching in the first
instance, and the court retains jurisdiction until
it finally disposes of the case.
XPNs:
1. Where a subsequent statute expressly
prohibits the continued exercise of
jurisdiction;
2. Where the law penalizing an act which is
punishable is repealed by a subsequent
law;
3. When accused is deprived of his
constitutional right such as where the
court fails to provide counsel for the
accused who is unable to obtain one and
does not intelligently waive his
constitutional right;
4. Where the statute expressly provides, or
is construed to the effect that it is
intended to operate as to actions pending
before its enactment;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
5
UST GOLDEN NOTES 2011
5.
6.
7.
When the proceedings in the court
acquiring jurisdiction is terminated,
abandoned or declared void;
Once appeal has been perfected;
Curative statutes (Herrera, Vol. I, p. 106,
2007 ed.).
because it cannot be tolerated by reason
of public policy (Filipinas Shell Petroleum
Corp. v. Dumlao, G.R. No. L-44888, Feb. 7,
1992).
3.
Q: Does retroactivity of a law affect jurisdiction?
A: No. Jurisdiction being a matter of substantive
law, the established rule is that statute in force at
the time of the commencement of the action
determines jurisdiction. (Herrera, Vol. I, p. 105,
2007 ed.)
7. OBJECTIONS TO JURISDICTION OVER THE
SUBJECT MATTER
Q: What is the effect of lack of jurisdiction over
the subject matter?
A: When it appears from the pleadings or evidence
on record that the court has no jurisdiction over the
subject matter, the court shall dismiss the same.
(Sec. 1, Rule 9). The court may on its own initiative
object to an erroneous jurisdiction and may ex
mero motu take cognizance of lack of jurisdiction at
any point in the case and has a clearly recognized
right to determine its own jurisdiction (Riano, Civil
Procedure: A Restatement for the Bar, p. 154, 2009
ed.).
Q: May jurisdiction of the court be raised or
questioned at any time?
A:
GR: Yes. The prevailing rule is that jurisdiction
over the subject matter may be raised at any
stage of the proceedings (Riano, Civil Procedure:
A Restatement for the Bar, p. 154, 2009 ed.).
Note: Jurisdiction can be questioned even for the first
time on appeal (Herrera, Vol. I, p. 91, 2007 ed.)
XPNs:
1. Estoppel by laches. SC barred a belated
objection to jurisdiction that was raised
only after an adverse decision was
rendered by the court against the party
raising the issue of jurisdiction and after
seeking affirmative relief from the court
and after participating in all stages of the
proceedings(Tijam v. Sibonghanoy, G.R.
No. L-21450, Apr. 15, 1968).
2.
6
Public policy – One cannot question the
jurisdiction which he invoked, not
because the decision is valid and
conclusive as an adjudication, but
A party who invokes the jurisdiction of
the court to secure affirmative relief
against his opponents cannot repudiate
or question the same after failing to
obtain such relief (Tajonera v. Lamaroza,
G.R. No. L-48907, 49035, Jan. 19, 1982).
Note: Under the Omnibus Motion Rule, a motion
attacking a pleading like a motion to dismiss shall
include all grounds then available and all objections
not so included shall be deemed waived. The defense
of lack of jurisdiction over the subject matter is
however, a defense not barred by the failure to invoke
the same in a motion to dismiss already filed. Even if a
motion to dismiss was filed and the issue of
jurisdiction was not raised therein, a party may, when
he files an answer, raise the lack of jurisdiction as an
affirmative defense because this defense is not barred
under the omnibus motion rule.
Q: Will the failure to exhaust administrative
remedies affect the jurisdiction of the court?
A:
GR: No. It is not jurisdictional but the case will
be dismissed on the ground of lack of cause of
action. It only renders the action premature.
(Carale v. Abarintos, G.R. No. 120704, March 3,
1997; Pestanas v. Dyogi, 81 SCRA 574)
XPN:
Before a party may be allowed to invoke the
jurisdiction of the courts, he is expected to have
exhausted all means of administrative redress
(Herrera, Vol. I, p. 267, 2007 ed.).
XPNS TO THE XPN:
1. Question raised is purely legal;
2. When the administrative body is in
estoppels;
3. When the act complained of is patently
illegal;
4. When there is need for judicial
intervention;
5. When the respondent acted in disregard
of due process;
6. When the respondent is the alter-ego of
the President, bear the implied or
assumed approval of the latter;
7. When irreparable damage will be
suffered;
8. When there is no other plain, speedy and
adequate remedy;
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
JURISDICTION
9.
When strong public interest is involved;
and
10. In quo warranto proceedings (Herrera,
Vol. I, p. 268, 2007 ed.)
involving the status of the parties or suits
involving the property in the Philippines
of non-resident defendants.
E. JURISDICTION OF COURTS
Note: The rule on exhaustion of administrative
remedies and doctrine of primary jurisdiction applies
only when the administrative agency exercises quasijudicial
or
adjudicatory
function
(Associate
Communications and Wireless Services v. Dumalao,
G.R. 136762, Nov. 21, 2002).
8. EFFECT OF ESTOPPEL ON OBJECTIONS TO
JURISDICTION
Q: What is the effect of estoppel by failure to
object lack of jurisdiction?
A: The active participation of a party in a case is
ta ta ou t to e og itio
of that
ou t s
jurisdiction and will bar a party from impugning the
ou t s ju isdi tio . This o l applies to e eptio al
circumstances. (Francel Realty Corp. v. Sycip, 469
SCRA 424; Concepcion v. Regalado, GR 167988, Feb.
6, 2007).
C. JURISDICTION OVER THE ISSUES
Q: What is jurisdiction over the issues?
A: It is the power of the court to try and decide
issues raised in the pleadings of the parties or by
their agreement in a pre-trial order or those tried
by the implied consent of the parties. It may also be
conferred by waiver or failure to object to the
presentation of evidence on a matter not raised in
the pleadings
D. JURISDICTION OVER THE RES OR PROPERTY IN
LITIGATION
Q: How is jurisdiction over the res acquired?
A: It is acquired either by:
1. The seizure of the property under legal
process.
2. As a result of the institution of legal
proceedings, in which the power of the
court is recognized and made effective.
(Banco Español Filipino vs. Palanca, 37
Phil. 291).
3. The court by placing the property of thing
under its custody (custodia legis).
Example: attachment of property.
4. The court through statutory authority
conferring upon it the power to deal with
the p ope t o thi g ithi the ou t s
territorial jurisdiction. Example: suits
Q: Which court has jurisdiction over the following?
A:
1. Boundary dispute between municipalities
RTCs are courts of general jurisdiction. Since
there is no legal provision specifically
governing jurisdiction over boundary disputes
between a municipality and an independent
component city of the same province, it
follows that RTCs have the power and
authority to hear and determine such
controversy (Municipality of Kananga v.
Madrona, G.R. No. 141375, Apr. 30, 2003).
2. Expropriation
It is within the jurisdiction of the RTC because
it is incapable of pecuniary estimation. It does
not involve the recovery of sum of money.
Rather, it deals with the exercise by the
government of its authority and right to take
property for public use.
3. Labor dispute
An action for damages for abuse of right as an
incident to dismissal is within the exclusive
jurisdiction of the labor arbiter. But the labor
arbiter has no jurisdiction for claims of
damages based on quasi-delict which has no
reasonable connection with the employeremployee relations claims under the Labor
Code (Ocheda v. CA, G.R. No. 85517, Oct. 16,
1992).
Note: Where no employer-employee relationship
exists between the parties and no issue involved
may be resolved by reference to the Labor Code,
other labor statutes or any collective bargaining
agreement, it is the regular courts that has
jurisdiction (Jaguar Security Investigation Agency
v. Sales, G.R. No. 162420, Apr. 22, 2008).
4. Forcible entry and unlawful detainer
The MTC has exclusive original jurisdiction. In
such cases, when the defendant raises the
question of ownership in his pleadings and the
question of possession cannot be resolved
without deciding the question of ownership,
the issue of ownership shall be resolved only to
determine the issue of possession. All
ejectment cases are covered by the Rule on
Summary Procedure and are within the
jurisdiction of the inferior courts regardless of
whether they involve questions of ownership.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
7
UST GOLDEN NOTES 2011
The courts in ejectment cases may determine
questions of ownership whenever necessary to
decide the question of possession (Gayoso v.
Twenty-Two Realty Development Corp., G.R.
No. 147874, July 17, 2006; Santiago v. Pilar
Development Corp., G.R. No. 153628, July 20,
2006).
Authority to conduct administrative
investigations over local elective officials
and to impose preventive suspension
over elective provincial or city officials
It is entrusted to the Secretary of Local
Government and concurrent with the
Ombudsman upon enactment of R.A. 6770.
There is nothing in the Local Government Code
of 1991 to indicate that it has repealed,
whether expressly or impliedly, the pertinent
provisions of the Ombudsman Act (Hagad v.
Dadole, G.R. No. 108072, Dec. 12, 1995).
for reconsideration in accordance with Rule 45
of the Rules of Court (Sec. 27, R.A. 6770).
7. Public school teachers
Generally, the Ombudsman must yield to the
Division School Superintendent in the
investigation of administrative charges against
public school teachers (Ombudsman v. Galicia,
G.R. No. 167711, Oct. 10, 2008).
5.
6. Appeals involving orders arising from
administrative disciplinary cases originating
from the Office of the Ombudsman
It may be appealed to the Supreme Court by
filing a petition for certiorari within 10 days
from receipt of the written notice of the order,
directive or decision or denial of the motion
8.
Enforcement of a money claim against a
local government unit
Commission on Audit (COA) has the primary
jurisdiction to pass upon the money claim. It is
within the COA's domain to pass upon money
claims against the government or any subdivision
thereof as provided for under Section 26 of the
Government Auditing Code of the Philippines.
Courts may raise the issue of primary jurisdiction
sua sponte (on its own will or motion; means to
act spontaneously without prompting from
another party) and its invocation cannot be
waived by the failure of the parties to argue it as
the doctrine exists for the proper distribution of
power between judicial and administrative
bodies and not for the convenience of the parties
(Euro-Med Laboratories, Phil., Inc. v. Province of
Batangas, G.R. No. 148106, July 17, 2006).
1. SUPREME COURT
Civil Cases
Criminal Cases
Exclusive Original
Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari,
mandamus against the following:
prohibition and mandamus against the following:
1. Court of Appeals
1. Court of Appeals
2. Commission on Elections En Banc
2. Sandiganbayan
3. Commission on Audit
4. Sandiganbayan
Appellate
1. In all criminal cases involving offenses from
1. Appeal by petition for review on certiorari:
which the penalty is reclusion perpetua or life
a. Appeals from the CA;
imprisonment and those involving other
b. Appeals from the CTA;
offenses, which although not so punished
c. Appeals from RTC exercising original jurisdiction in
arose out of the same occurrence or which
the following cases:
may have been committed by the accused on
i. If no question of fact is involved and the case
the same occasion
involves:
a)
2.
8
Constitutionality or validity of treaty,
international or executive agreement, law,
presidential decree, proclamation, order,
instruction, ordinance or regulation
b) Legality of tax, impost, assessments, or toll,
or penalty in relation thereto
c) Cases in which jurisdiction of lower court is
in issue
ii. All cases in which only errors or questions of
law are involved.
Special civil action of certiorari – filed within 30 days against
the COMELEC / COA
Note: In criminal cases, when the penalty imposed
is life imprisonment or reclusion perpetua, appeal
is automatic to the CA. (A.M. No. 04-9-05-SC;
People v. Mateo y Garcia, G.R. No. 147678-87, July
7, 2004)
2.
3.
4.
5.
Criminal cases in which the death penalty is
imposed by the Sandiganbayan
Appeals from the CA;
Appeals from the Sandiganbayan;
Appeals from RTC in which only errors or
questions of law are involved.
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
JURISDICTION
1.
Concurrent
With CA
Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari,
mandamus against the following:
prohibition and mandamus against the RTC and
a. NLRC under the Labor Code.
lower courts.
Note: The petitions must first be filed with the CA, otherwise,
they shall be dismissed. (St. Martin Funeral Home v. CA, G.R.
No. 130866, Sept. 16, 1998).
b.
c.
d.
Civil Service Commission
Quasi-judicial agencies (file with the CA first)
RTC and lower courts;
2.
Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7,
A.M. No. 09-6-8-SC).
With CA and RTC
1. Petitions for habeas corpus and quo warranto; and
Petitions for issuance of writs of certiorari,
2. Petitions for issuance of writs of certiorari, prohibition and prohibition and mandamus against the lower courts
mandamus against the lower courts or other bodies
or bodies.
With CA, SB and RTC
1. Petitions for the issuance of writ of amparo
Petitions for the issuance of writ of amparo and writ
2. Petition for writ of habeas data, where the action involves
of habeas data
public data or government office
With RTC
With Sandiganbayan
Actions affecting ambassadors and other public ministers and
Petitions for mandamus, prohibition, certiorari,
consuls
injunctions and ancillary writs in aid of its appellate
jurisdiction including quo warranto arising or that
may arise in in cases filed under EO Nos. 1, 2, 14 and
14-A
Note:
1.
2.
g.
The following cases must be decided by the
SC en banc:
a. All cases involving the constitutionality
of a treaty, international or executive
agreement, or law;
b. Cases involving the constitutionality,
application or operation of presidential
decrees,
proclamations,
orders,
instructions, ordinances and other
regulations;
c. A case where the required number of
vote in a division is not obtained;
d. A doctrine or principle laid down in a
decision rendered en banc or by
division is modified, or reversed;
e. All other cases required to be heard en
banc under the Rules of Court (Sec. 5,
Art. VIII, 1987 Constitution).
Environmental laws and regulations covered
by the writ of kalikasan includes but not
limited to the following:
a. Act No. 3572 - Prohibition Against
Cutting of Tindalo,Akli, and Molave
Trees;
b. P.D. No. 705 - Revised Forestry Code;
c. P.D. No. 856 - Sanitation Code;
d. P.D. No. 979 - Marine Pollution Decree;
e. P.D. No. 1067 - Water Code;
f.
P.D.
No.
1151
Philippine
Environmental Policy of 1977;
h.
i.
j.
k.
l.
m.
n.
o.
p.
q.
P.D. No. 1433 - Plant Quarantine Law
of 1978;
P.D. No. 1586 - Establishing an
Environmental
Impact
Statement
System Including Other Environmental
Management Related Measures and
for Other Purposes;
R.A. 3571 - Prohibition Against the
Cutting, Destroying or Injuring of
Planted or Growing Trees, Flowering
Plants and Shrubs or Plants of Scenic
Value along Public Roads, in Plazas,
Parks, School Premises or in any Other
Public Ground;
R.A. 4850 - Laguna Lake Development
Authority Act;
R.A. 6969 - Toxic Substances and
Hazardous Waste Act;
R.A. 7076 - People s “ all-Scale Mining
Act;
R.A. 7586 - National Integrated
Protected Areas System Act including
all laws, decrees, orders, proclamations
and issuances establishing protected
areas;
R.A. 7611 - Strategic Environmental
Plan for Palawan Act;
R.A. 7942 - Philippine Mining Act;
R.A. 8371 - Indigenous Peoples Rights
Act;
R.A. 8550 - Philippine Fisheries Code;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
9
UST GOLDEN NOTES 2011
r.
s.
3.
R.A. 8749 - Clean Air Act;
R.A. 9003 - Ecological Solid Waste
Management Act;
t.
R.A. 9072 - National Caves and Cave
Resource Management Act;
u. R.A. 9147 - Wildlife Conservation and
Protection Act;
v. R.A. 9175 - Chainsaw Act;
w. R.A. 9275 - Clean Water Act;
x. R.A. 9483 - Oil Spill Compensation Act
of 2007;
y. Provisions in CA No. 141, The Public
Land Act; R.A. 6657, Comprehensive
Agrarian Reform Law of 1988; R.A.
7160, Local Government Code of 1991;
R.A. 7161, Tax Laws Incorporated in the
Revised Forestry Code and Other
Environmental Laws (Amending the
NIRC); R.A. 7308, Seed Industry
Development Act of 1992; R.A. 7900,
High-Value Crops Development Act;
R.A. 8048, Coconut Preservation Act;
R.A. 8435, Agriculture and Fisheries
Modernization Act of 1997; R.A. 9522,
The Philippine Archipelagic Baselines
Law; R.A. 9593, Renewable Energy Act
of 2008; R.A. 9637, Philippine Biofuels
Act; and
z. Other existing laws that relate to the
conservation,
development,
preservation, protection and utilization
of the environment and natural
resources (Sec. 2, Rule 1, A.M. No. 096-8-SC).
The
following
are
intra-corporate
controversies within the jurisdiction of the
RTC:
a. Cases involving devises or schemes
employed by or any acts, of the board
b.
c.
d.
of directors, business associates, its
officers or partnership, amounting
fraud or misrepresentation which may
be detrimental to the interest of the
public and/or the stockholders,
partners, members of the associations
or organizations registered with the
Security and Exchange Commission;
Controversies arising out of intracorporate or partnership relations,
between and among stockholders,
members or associates, respectively;
and between such corporation,
partnership or association and the
state in so far as it concerns their
individual franchise or right to exist as
such entity;
Controversies in the election or
appointments of directors, trustees,
officers or managers of such
corporation,
partnerships
or
associations; and
Petitions of corporations, partnerships
or associations to be declared in the
state of suspension of payments in
cases
where
the
corporation,
partnership or association posses
sufficient property to cover all its debts
but foresees the impossibility of
meeting them when they respectively
fall due or in cases where the
corporation, partnership or association
has no sufficient assets to cover its
liabilities but is under the management
of a Rehabilitation Receiver or
Management Committee (Sec. 5.2,
SRC).
2. COURT OF APPEALS
Civil Cases
Criminal Cases
Exclusive Original
Actions for annulment of judgments of RTC based upon
1. Actions for annulment of judgments of RTC (Sec. 9
extrinsic fraud or lack of jurisdiction (Sec. 9 B.P. 129).
B.P. 129).
2. Crimes of Terrorism under the Human Security Act
of 2007 or R.A. 9372
Appellate
1. Final judgments, decisions, resolutions, orders,
Judgments or decisions of RTC (except those appealable
awards of:
to the SC or SB):
a. RTC
a. exercising its original jurisdiction;
i.
In the exercise of its original jurisdiction;
b. exercising its appellate jurisdiction; and
ii.
In the exercise of its appellate jurisdiction;
c. where the imposable penalty is:
b. Family Courts;
i.
life imprisonment or reclusion perpetua;
c. RTC on the questions of constitutionality,
ii.
a lesser penalty for offenses committed on
validity of tax, jurisdiction involving questions of
the same occasion or which arose from the
fact, which should be appealed first to the CA;
same occurrence that gave rise to the offense
d. Appeals from RTC in cases appealed from MTCs
punishable reclusion perpetua or life
which are not a matter of right.
imprisonment (Sec. 3, Rule 122).
2. Appeal from MTC in the exercise of its delegated
iii.
Death (Sec. 10, Rule 122).
10
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
JURISDICTION
3.
4.
5.
6.
1.
2.
1.
2.
jurisdiction (R.A. 7691).
Appeals from Civil Service Commission;
Appeals from quasi-judicial agencies under Rule 43;
Appeals from the National Commission on
Indigenous Peoples (NCIP); and
Appeals from the Office of the Ombudsman in
administrative disciplinary cases (Mendoza-Arce v.
Office of the Ombudsman, G.R. No. 149148, Apr. 5,
2002).
Concurrent
With SC
1.
Petitions for issuance of writs of Petitions for issuance of writs of certiorari, prohibition
certiorari, prohibition and mandamus against and mandamus against the RTCs and lower courts.
the following:
a. NLRC under the Labor Code.
b. Civil Service Commission
c. Quasi-judicial agencies
d. RTCs and other lower courts.
2.
Petitions for issuance of writ of
kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC).
With SC and RTC
Petitions for habeas corpus and quo warranto; and
Petitions for issuance of writs of certiorari, prohibition
Petitions for the issuance of writs of certiorari, and mandamus against the lower courts or bodies.
prohibition and mandamus against the lower courts
With SC, SB and RTC
Petitions for the issuance of writ of amparo
Petitions for the issuance of writ of amparo and writ of
Petition for writ of habeas data, where the action habeas data
involves public data or government office
3. COURT OF TAX APPEALS
Tax Cases
Criminal Cases
Exclusive Original
In tax collection cases involving final and executory All criminal cases arising from violation of the NIRC of the
assessments for taxes, fees, charges and penalties where TCC and other laws, part of laws, or special laws
the principal amount of taxes and fees, exclusive of administered by the BIR or the BOC where the principal
charges and penalties claimed is less than P1M tried by the amount of taxes and fees, exclusive of charges and
proper MTC, MeTC and RTC.
penalties claimed is less that P1M or where there is no
specified amount claimed (the offenses or penalties shall
be tried by the regular courts and the jurisdiction of the
CTA shall be appellate)
Appellate
In tax collection cases involving final and executory 1. Over appeals from the judgment, resolutions or
assessments for taxes, fees, charges and penalties where
orders of the RTC in tax cases originally decided by
the principal amount of taxes and fees, exclusive of
them, in their respective territorial jurisdiction,
charges and penalties claimed is less than P1M tried by the 2. Over petitions for review of the judgments,
proper MTC, MeTC and RTC.
resolutions or orders of the RTC in the exercise of
their appellate jurisdiction over tax cases originally
decided by the MeTCs, MTCs, and MCTCs in their
respective jurisdiction
Concurrent
With CIR
1. Decisions 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 BIR;
2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in
relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or
other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied
denial;
With RTC
Decisions, orders or resolutions of the in local taxes originally decided or resolved by them in the exercise of their
original or appellate jurisdiction;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
11
UST GOLDEN NOTES 2011
With Commissioner of Customs
Decisions in cases involving liability for customs duties, fees or other charges, seizure, detention or release of
property affected, fines, forfeitures or other penalties in relation thereto, or
2.
Other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC;
With Central Board of Assessment Appeals
Decisions 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;
With Secretary of Finance
Decision on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs
which are adverse to the government under Sec. 2315 of the Tariff and Customs Code;
With Secretary of Trade and Industry and the Secretary of Agriculture
Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the
Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and
counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures
under RA 8800, where either party may appeal the decision to impose or not to impose said duties.
1.
4. SANDIGANBAYAN
Civil Cases
Criminal Cases
Exclusive Original
Cases involving violations of:
1. Violation of R.A. 3019 (Anti-Graft and Corrupt Practices
a. EO No. 1 (Creating the PCGG);
Act) where one or more of the accused are officials
b. EO
No.
2
(Illegal
Acquisition
and
occupying the following positions in the government,
Misappropriations of Ferdinand Marcos, Imelda
whether in permanent. Acting or interim capacity, at the
Marcos their close relatives, subordinates,
time of the commission of the offense:
business associates, dummies, agents or
a. Officials occupying a position classified as Grade 27
nominees);
or higher of the Compensation and Position
c. EO No. 14 [Cases involving the ill-gotten wealth
Classification Act of 1989 (R.A. 6758) in the:
of the immediately mentioned persons (Marcos
i.
Executive branch including those occupying
and dummies)]; and
the position of regional director; and
d. EO No. 14-A (amendments to EO No. 14) (Sec. 2,
ii.
All other national or local officials.
R.A. 7975 as amended by R.A. 8294).
b. Members of Congress
c. Members of the judiciary without prejudice to the
Constitution; and
d. Chairmen and members of the Constitutional
Commissions without prejudice to the Constitution.
2. Felonies or offenses, whether simple or complexed with
other crimes committed by the public officials and
employees above mentioned in relation to their office;
and
3. Cases filed pursuant to EO Nos. 1, 2, 14 and 14-A (Sec. 2,
R.A. 7975 as amended by R.A. 8249).
Appellate
Appeals from final judgments, resolutions or orders of the
RTC, whether in the exercise of their original or appellate
jurisdiction, in cases involving public officials or employees
not otherwise mentioned in the preceding enumeration.
Concurrent
With SC
Petitions for certiorari, prohibition, mandamus,
Petitions for certiorari, prohibition, mandamus, habeas
habeas corpus, injunction and other ancillary writs in
corpus, injunction and other ancillary writs in aid of its
aid of its appellate jurisdiction, including quo
appellate jurisdiction, including quo warranto arising in cases
warranto arising in cases falling under Executive Order falling under Executive Order Nos. 1, 2, 14 and 14-A.
Nos. 1, 2, 14 and 14-A.
With SC, CA and RTC
Petitions for the issuance of writ of amparo and writ
Petitions for the issuance of writ of amparo and writ of
of habeas data.
habeas data.
Q: Governor Charles of Tarlac was charged with
indirect bribery before the Sandiganbayan for
12
accepting a car in exchange for the award of a
series of contracts for medical supplies. The
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
JURISDICTION
Sandiganbayan, after going over the information,
found the same to be valid and ordered the
suspension of Charles. The latter contested the
suspension claiming that under the law (Sec. 13,
R.A. 3019), his suspension is not automatic upon
the filing of the information and his suspension
under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of
the Decentralization Act of 1967 (R.A. 5185). The
Sandiganbayan overruled Cha les’ o te tio
stating that the suspension under the
circumstances is mandatory. Is the court's ruling
correct?
A: Yes. Cha les suspe sio is a dato , although
not automatic. It is mandatory after the
determination of the validity of the information in a
pre-suspension hearing. The purpose of the
suspension is to prevent the accused public officer
from frustrating or hampering his prosecution by
intimidating or influencing witnesses or tampering
with evidence or from committing further acts of
malfeasance while in office. (2001 Bar Question)
5. REGIONAL TRIAL COURTS
Civil Cases
Criminal Cases
Exclusive Original
1. Criminal cases not within exclusive jurisdiction of
1. Actions in which the subject of litigation is incapable
any court, tribunal or body (Sec. 20, BP 129).
of pecuniary estimation;
a. Includes criminal cases where the penalty
2. Actions involving title to or possession of real
provided by law exceeds 6 years imprisonment
property or any interest therein where the assessed
irrespective of the fine (R.A. 7691).
value exceeds P20,000 or P50,000 in Metro Manila,
b. Includes criminal cases not falling within the
except forcible entry and unlawful detainer;
exclusive original jurisdiction of the
3. Actions in admiralty and maritime jurisdiction where
Sandiganbayan where the imposable penalty is
demand or claim exceeds P300,000 or P400,000 in
imprisonment more than 6 years and none of
Metro Manila;
the accused is occupying positions classified as
4. Matters of probate, testate or intestate, where gross
G ade
a d highe (Sec. 4, P.D. 1606 as
value of estate exceeds P300,000 or P400,000 in
amended by R.A. 8249).
Metro Manila;
2. Cases where the only penalty provided by law is a
5. Cases not within the exclusive jurisdiction of any
fine exceeding P4,000;
court, tribunal, person or body exercising judicial or
3. Other laws which specifically lodge jurisdiction in
quasi-judicial function;
the RTC:
6. Civil actions and special proceedings falling within
a. Law on written defamation or libel;
exclusive original jurisdiction of Juvenile and
b. Decree on Intellectual Property;
Domestic Relations Court and Court of Agrarian
c. Violations of Dangerous Drugs Act regardless
Reforms;
of the imposable penalty except when the
7. Other cases where the demand, exclusive of interest,
offender is under 16 and there are Juvenile and
da ages, atto e s fees, litigation expenses and
Domestic Relations Court in the province.
costs, or value of property in controversy exceeds
4.
Cases falling under the Family Courts in areas where
P300,000 or P400,000 in Metro Manila (Sec. 19, BP
there are no Family Courts (Sec.24, B.P. 129).
129 as amended by R.A. 7691); and
5.
Election offenses (Omnibus election code) even if
8. Intra-corporate controversies under Sec. 5.2 of the
committed by an official with salary grade of 27 or
Securities and Regulation Code.
higher
Concurrent
With SC, SB and CA
1. Writ of amparo
Petitions for the issuance of writ of amparo and writ of
2. Writ of habeas data
habeas data
With SC
Actions affecting ambassadors and other public ministers
and consuls [Sec. 21 (2) of BP 129]
With SC and CA
1. Certiorari, prohibition and mandamus against lower
courts and bodies;
2. Habeas corpus and quo warranto;
With MTC
Cases involving enforcement or violations of
environmental and other related laws, rules and
regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC).
Special
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
13
UST GOLDEN NOTES 2011
SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases,
agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special
cases in the interest of justice (Sec. 23, BP 129).
Appellate
GR: All cases decided by lower courts (MTC etc.) in their respective territorial jurisdictions.
XPN: Decisions of lower courts in the exercise of delegated jurisdiction.
Q: What is the test to determine whether an
action is capable of pecuniary estimation?
A: The criterion is the nature of the principal action
or the remedy sought. If it is primarily for the
recovery of a sum of money, the claim is considered
capable of pecuniary estimation, and whether
jurisdiction is in the MTCs or in the RTCs would
depend on the amount of the claim.
However, where the basic issue is something other
than the right to recover a sum of money, where
the money claim is purely incidental to, or a
consequence of, the principal relief sought like
specific performance suits and in actions for
support, or for annulment of a judgment or
foreclosure of mortgage, such actions are incapable
of pecuniary estimation, and are cognizable
exclusively by the RTCs (Barangay Piapi v. Talip,
G.R. No. 138248, Sept. 7, 2005).
6. FAMILY COURTS
Civil Cases
1.
2.
3.
4.
5.
6.
7.
8.
Criminal Cases
Exclusive Original
1. Where one or more of the accused is/are below 18
Petitions for guardianship, custody of children, habeas
years of age but not less than 9 years of age;
corpus in relation to minor;
2. When one or more of the victims is a minor at the time
Petitions for adoption of children and its revocation;
of the commission of the offense (R.A. 8369, Act
Complaints for annulment and declaration of nullity of
establishing the family courts);
marriage and those relating to marital status and
3. Cases against minors cognizable under the Dangerous
property relations of spouses or those living together
Drugs Act, as amended; and
under different status and agreements; and petitions
4. Violations of R.A. 7610 or the Special Protection of
for dissolution of conjugal partnership of gains;
Children Against Child Abuse, Exploitation and
Petitions for support and/or acknowledgment;
Discrimination Act, as amended by R.A. 7658; and
Summary judicial proceedings under the Family Code
5. Cases of domestic violence against:
of the Philippines;
a.
Women – involving acts of gender-based violence
Petitions for declaration of status of children as
that result, or likely to result in physical, sexual or
abandoned, dependent or neglected children,
psychological harm or suffering to women; and
petitions for voluntary or involuntary commitment of
other forms of physical abuse such as battering or
children, the suspension, termination, or restoration of
threats and coe io
hi h iolate a o a s
parental authority and other cases cognizable under
personhood, integrity and freedom of movement;
PD 603, EO 56 (Series of 1986) and other related laws;
b. Children – which include the commission of all
and
forms of abuse, neglect, cruelty, exploitation,
Petitions for the constitution of the family home
violence and discrimination and all other
(rendered unnecessary by Art. 153, Family Code) (Sec.
conditions prejudicial to their development (Sec.
5, R.A. 8369).
5, R.A. 8369)
7. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS
Civil Cases
Criminal Cases
Exclusive Original
1. Actions involving personal property where the value of the 1.
property does not exceed P300,000 or, in Metro Manila
P400,000;
2. Actions for claim of money where the demand does not
2.
exceed P300,000 or, in Metro Manila P400,000;
3. Probate proceedings, testate or intestate, where the value
of the estate does not exceed P300,000 or, in Metro Manila
P400,000;
3.
Note: In the foregoing, claim must be exclusive of interest,
da ages, atto e s fees, litigatio e pe se, a d osts (Sec. 33,
BP 129 as amended by R.A. 7691).
14
4.
All offenses punishable with imprisonment not
exceeding 6 years irrespective of the amount of
fine and regardless of other imposable
accessory or other penalties;
In offenses involving damage to property
through criminal negligence where the
imposable fine does not exceed P10,000 (Sec.
32, BP 129 as amended by R.A. 7691);
Where the only penalty provided by law is a
fine not exceeding P4,000 (Admin. Circular No.
09-94, June 14, 1994); and
Those covered by the Rules on Summary
Procedure, i.e.
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
JURISDICTION
4. Actions involving title to or possession of real property or
any interest therein where the value or amount does not
exceed P20,000 or, in Metro Manila P50,000 exclusive of
i te est da ages, atto e s fees, litigatio e pe se, a d
costs; (2008 Bar Question)
5. Maritime claims where the demand or claim does not
exceed P300,000 or, in Metro Manila P400,000 (Sec. 33, BP
129 as amended by R.A. 7691);
6. Inclusion or exclusion of voters (Sec. 138, BP 881);
7. Those covered by the Rules on Summary Procedure:
a. Forcible entry and unlawful detainer;
b. Other civil cases except probate where the total amount of
the plai tiff s claims does not exceed P100,000 or, in Metro
Manila P200,000 exclusive interest and costs (as amended
by A.M. No. 02-11-09-SC).
8. Those covered by the Rules on Small Claims, i.e. actions for
payment of money where the claim does not exceed
P100,000 exclusive of interest and costs.
a.
Violations of traffic laws, rules and
regulations;
b. Violations of the rental law;
c. Violations of municipal or city ordinances;
d. Violations of BP 22 (A.M. No. 00-11-01-SC);
e. All other criminal cases where the penalty
is imprisonment not exceeding 6 months
and/or a fine of P 1,000 irrespective of
other penalties or civil liabilities arising
therefrom.
5. All offenses committed by public officers and
employees in relation to their office, including
government-owned
or
–controlled
corporations, and by private individuals
charged as co-principals, accomplices or
accessories, punishable with imprisonment not
more than 6 years or where none of the
a used holds a positio lassified as G ade
a d highe (Sec. 4, P.D. 1606 as amended
by R.A. 8249).
Delegated
Cadastral or land registration cases covering lots where:
a. There is no controversy or opposition;
b. Contested but the value does not exceed P100,000 (Sec.
34, BP 129 as amended by R.A. 7691).
Note: The value shall be ascertained by the affidavit of the
claimant or agreement of the respective claimants (Sec. 34, BP 129
as amended by R.A. 7691).
Special
Petition for habeas corpus in the absence of all RTC judges in
Application for bail in the absence of all RTC judges in
the province or city (Sec. 35, BP 129).
the province or city.
Concurrent
With RTC
Cases involving enforcement or violations of environmental
and other related laws, rules and regulations (Sec. 2, Rule 1,
A.M. No. 09-6-8-SC).
8. SHARIAH COURTS
Exclusive Original
1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim
Personal Laws;
2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills,
issuance of letters of administration or appointment of administrators or executors regardless of the nature or
aggregate value of the property;
3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which
law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and
processes in aid of its appellate jurisdiction.
Concurrent
With all civil courts
1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an
asylum;
2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except
those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit
Court; and
3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved
belongs exclusively to Muslims.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
15
UST GOLDEN NOTES 2011
F. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND
BARANGAY CONCILIATION
Katarungang Pambarangay Law
To effect an amicable settlement of
disputes among family and barangay
members at the barangay level without
judicial recourse and consequently help
relieve the courts of docket congestion.
(Preamble of P.D. 1508) (1999 Bar
Qestion)
1.
2.
3.
4.
For disputes between residents of
the same barangay: the dispute must
be brought for settlement in the said
barangay.
For disputes between residents of
different but adjoining barangays
and the parties agree to submit their
differences to amicable settlement:
within the same city or municipality
where any of the respondents reside
at the election of the complainant.
For disputes involving real property
or any interest when the parties
thereto agree to submit their
differences to amicable settlement
by an appropriate lupon therein shall
be brought in the barangay where
the real property or larger portion
thereof is situated.
For disputes arising at the workplace
where the contending parties are
employed or at the institution where
such parties are enrolled for study
shall be brought in the barangay
where such workplace or institution
is located.
All disputes involving parties who
actually reside in the same city or
municipality may be the subject of the
proceedings for amicable settlement in
the barangay.
16
Rule on Small Claims Cases
Purpose / Object
To provide a simpler and more
inexpensive and expeditious means
of settling disputes involving purely
money claims than the regular civil
process
1.
2.
3.
4.
Where to file
Metropolitan Trial Courts
Municipal Trial Courts in Cities
Municipal Trial Courts
Municipal Circuit Trial Courts
Rules on Summary Procedure
To achieve an expeditious and
inexpensive determination of the
cases defined to be governed by
the Rules on Summary Procedure
1.
2.
3.
4.
Metropolitan Trial Courts
Municipal Trial Courts in Cities
Municipal Trial Courts
Municipal Circuit Trial Courts
Cases Covered
Civil Cases
Small claims cases – civil claims 1. All cases of forcible entry and
which are exclusively for the
unlawful detainer irrespective of
the amount of damages or unpaid
payment or reimbursement of a
rentals sought to be recovered.
sum of money not exceeding
Whe e atto e s fees a e
P100,000 exclusive of interest and
awarded, the same shall not
costs, either
exceed P20,000; and
1. Purely civil in nature where
the claim or relief prayed for 2. All other civil cases, except
probate proceedings, where the
by the plaintiff is solely for
total a ou t of plai tiff s lai
payment or reimbursement of
does not exceed P100,000 or
sum of money, or
does not exceed P200,000 in
2. The civil aspect of criminal
Metro Manila, exclusive of
actions, either filed before the
interests and costs (A.M. No. 02institution of the criminal
11-09-SC, Nov. 25, 2005).
action, or reserved upon the
filing of the criminal action in
court, pursuant to Rule 111 of
the Revised Rules of Criminal
Procedure.
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
JURISDICTION
These claims or demands may be:
1. For money owed under any of
the following:
a. Contract of Lease
b. Contract of Loan
c. Contract of Services
d. Contract of Sale
e. Contract of Mortgage
2. For damages arising from any
of the following:
a. Fault or negligence
b. Quasi-contract
c. Contract
3. The enforcement of a
barangay amicable settlement
or an
arbitration award
involving a money claim
covered by this Rule pursuant
to Sec. 417
Criminal Cases
When punishable by imprisonment of
not more than 1 year or fine of not more
than 5,000. (Sec. 408, LGC)
1.
2.
3.
4.
5.
6.
Where one party is the government
or
any
subdivision
or
instrumentality thereof;
Where one party is a public officer
or employee, and the dispute
relates to the performance of his
official functions;
Offenses
punishable
by
imprisonment exceeding 1 year or a
fine exceeding P5,000.00;
Offenses where there is no private
offended party;
Where the dispute involves real
properties located in different cities
or municipalities unless the parties
thereto agree to submit their
differences to amicable settlement
by an appropriate lupon;
Disputes involving parties who
actually reside in barangays of
different cities or municipalities,
except where such barangay units
adjoin each other and the parties
1. Violations of traffic laws, rules
and regulations;
2. Violations of the rental law;
3. Violations of municipal or city
ordinances;
4. Violations of B.P. 22 or the
Bouncing Checks Law (A.M. No.
00-11-01-SC, Apr. 15, 2003);
5. All other criminal cases where
the penalty is imprisonment not
exceeding 6 months and/or a
fine of P 1,000 irrespective of
other penalties or civil liabilities
arising therefrom; and
6. Offenses involving damage to
property
through
criminal
negligence where the imposable
fine is not exceeding P10,000.
1.
2.
Cases excluded
Criminal actions are excluded
pursuant
to
certain
Constitutional
limitations
granting the accused in all
i i al p ose utio s the
right to be heard by himself
a d ou sel (Sec. 14[2], Bill
of Rights). An example is a
case for libel or slander.
However, the civil aspect of a
criminal action which seeks
recovery of money as
damages may be heard as a
small claim if reserved or
instituted separately prior to
the filing of the criminal case.
Some civil cases regardless of
how little the amount
involved cannot be filed as
small claims. Examples are a
suit to force a person to fix a
damaged good or a demand
for the fulfillment of an
This Rule 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 to a criminal case
where the offense charged is
necessarily related to another
criminal case subject to the
ordinary procedure.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
17
UST GOLDEN NOTES 2011
7.
8.
thereto agree to submit their
differences to amicable settlement
by an appropriate lupon;
Such other classes of disputes
which the President of the
Philippines may determine in the
interest of justice; and
Violations of R.A. 9262, VAWC Act.
obligation which is not purely
for money.
G. TOTALITY RULE
Q: What is the Aggregate or Totality Rule?
A: Where there are several claims or causes of
actions between the same or different parties
embodied in one complaint, the amount of the
demand shall be the totality of the claims in all
causes of action irrespective of whether the causes
of action arose out of the same or different
transaction (Rule 2, Sec.5 [d]).
18
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
III. CIVIL PROCEDURE
A. ACTIONS
1. MEANING OF ORDINARY CIVIL ACTIONS
Q: What is an ordinary civil action?
Court
Heard by courts of limited
jurisdiction
Procedure
Initiated by a pleading
Initiated by a petition and
and parties respond
parties respond through an
through an answer
opposition
Heard by courts of
general jurisdiction
A: It is a fo al de a d of o e s legal ights i a
court of justice in the manner prescribed by the
court or by law. It is governed by ordinary rules.
5. REAL ACTIONS AND PERSONAL ACTIONS
Q: Distinguish real actions from personal actions.
2. MEANING OF SPECIAL CIVIL ACTIONS
A:
Q: What is a special civil action?
A: It has special features not found in ordinary civil
actions. It is governed by ordinary rules but subject
to specific rules prescribed Rules 62-71.
3. MEANING OF CRIMINAL ACTIONS
Q: What is a criminal action?
A: It is one by which the state prosecutes a person
for an act or omission punishable by law (Sec.3 (b),
Rule1).
4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS
Q: Distinguish action from special proceeding.
A:
Action
Special Proceeding
Purpose
Civil action:
To establish a status, a right
1. To protect a right
or a particular fact (Sec. 3
2. Prevent or redress a Rule 1). Specific kinds of
wrong.
special proceedings are
found in rule 72 – rule 109
Criminal action:
E.g. settlement of estate,
Prosecute a person for
escheat, guardianship, etc.
(Riano, Civil Procedure: A
an act or omission
Restatement for the Bar, p.
punishable by law (Sec.
121, 2009 ed.)
3, Rule 1)
Application
Where a party litigant
Where his purpose is to
seeks to recover
seek the appointment of a
property from another,
guardian for an insane
his remedy is to file an
person, his remedy is a
action.
special proceeding to
establish the fact or status
of insanity calling for an
appointment of
guardianship. (Herrera, Vol.
I, p. 370, 2007 ed.)
Governing Law
Ordinary rules
Special rules supplemented
supplemented by special by ordinary rules
rules
Real Action
Personal Action
Scope
When it affects title to or
Personal property is
possession of a real
sought to be recovered
property, or an interest
or where damages for
therein (Sec. 1, rule 4)
breach of contract are
sought
Basis
When it is founded upon the Founded on privity of
privity of a real estate. That contract such as
means that realty or interest damages, claims of
therein is the subject matter money, etc.
of the action.
Note: It is important that the
matter in litigation must also
involve any of the following
issue:
1. Title to
2. Ownership
3. Possession
4. Partition
5. Foreclosure of mortgage
6. Any interest in real
property.
Venue
Venue of action shall be
Venue of action is the
commenced and tried in the place where the
proper court which has
plaintiff or any of the
jurisdiction over the area
principal plaintiffs
wherein the real property
resides or any of the
involved, or a portion
defendants resides, at
thereof is situated. (Rule 4,
the election of the
sec 1)
plaintiff (Rule 2 sec 2)
Example
An action to recover
Action for a sum of
possession of real property
money
plus damages
Note: An action to annul or
rescind a sale of real property
has as its fundamental and
prime objective the recovery
of real property (Emergency
Loan Pawnshop, Inc. vs. Court
of appeals, 353 SCRA 89;
Riano, p. 122, 2009 ed.)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
19
UST GOLDEN NOTES 2011
6. LOCAL AND TRANSITORY ACTIONS
Q: Distinguish local action from transitory actions.
A:
Local Action
Transitory Action
Venue
Must be brought in a
Dependent on the place
particular plac where the where the party resides
subject property is
regardless of where the
located, unless there is
cause of action arose.
an agreement to the
Subject to Sec. 4, Rule 4
contrary.
Privity of contract
No privity of contract and Founded on privity of
the action is founded on contract between the
privity of estate only
parties whether debt or
covenant (Paper Industries
Corporation of the
Philippines v. Samson, G.R.
No. L-30175, Nov. 28,
1975).
Example
Action to recover real
Action to recover sum of
property
money
7. ACTIONS IN REM, IN PERSONAM AND QUASI IN REM
Q: Distinguish actions in rem, in personam and quasi in rem
A:
Action In Rem
Action In Personam
Action Quasi In Rem
Nature
A proceeding to subject the property A proceeding to enforce
A proceeding to subject the property of
of such persons to the discharge of
personal rights and obligations the named defendant or his interests
the claims assailed.
brought against the person
therein to the obligation or lien
burdening the property.
Purpose
A proceeding to determine the state
An action to impose a
Deals with the stauts, ownership or
or condition of a thing
responsibility or liability upon
liability of a particular property but
which are intended to operate on these
a person directly
questions only as between the particular
parties to the proceedings and not to
ascertain or cut-off the rights or
interests of all possible claimants.
(Domagas vs. Jensen, 448 SCRA 663)
Scope
Directed against the thing itself
Directed against particular
Directed against particular persons
Directed against the whole world
persons
Required jurisdiction
Jurisdiction over the person of the Jurisdiction over the person of Jurisdiction over the person of the
defendant is not required.
the defendant is required
defendant is not required as long as
Jusrisdiction over the RES is required
jurisdiction over the res is acquired
through publication in a newspaper
of general circulation.
Effect of judgment
Judgment is binding upon the whole Judgment is binding only upon
Judgment will be binding only upon the
world.
parties impleaded or their
litigants, privies, successor in interest
successors-in-interest
but the judgment shall be executed
against a particular property. The RES
involve will answer the judgment.
Example
1. Probate proceeding
1. Action for specific
1. Action for partition
2. Cadastral proceeding
performance
2. Action to foreclose real estate
3. Land registration proceeding
2. Action for breach of
mortgage attachment
contract
3. Action for ejectment
4. Action for a sum of money;
for damages (Riano, Civil
Procedure: A Restatement
for the Bar,p.130, 2009 ed.)
20
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
B. CAUSE OF ACTION
3. FAILURE TO STATE A CAUSE OF ACTION
1. MEANING OF CAUSE OF ACTION
Q: Distinguish failure to state cause of action from
absence or lack of cause of action
Q: What is a cause of action?
A:
A: It is the act or omission by which a party violates
a rights of another (Sec. 2, Rule 2).
2. CAUSE OF ACTION VERSUS RIGHT OF ACTION
Q: Distinguish cause of action from right of action
A:
Cause of Action
It is the act or omission
by which a party
violates the rights of
another ( Sec. 2, Rule 2)
Right of Action
Remedial right or right to
relief granted by law to a
party to institute an action
against a person who has
committed a delict or
wrong against him
Requisites
1. The existence of a
1. There must be a good
legal right of the
cause (existence of a
plaintiff
cause of action)
2. A correlative duty of
2. A compliance with all
the defendant to
the conditions precedent
espe t o e s ight
to the bringing of the
3. An act or omission of
action
the defendant in
3. The action must be
violation of the
instituted by the proper
plai tiff s ight.
party.
Nature
It is actually predicated
It is procedural in
on substantive law or
character is the
on quasi delicts under
consequence of the
NCC.
violation of the right of the
plaintiff (Riano, Civil
Procedure: A Restatement
for the Bar , p. 4, 2009 ed.)
Basis
Based on the allegations Basis is the plai tiff s ause
of the plaintiff in the
of action
complaint
Effect of Affirmative defense
Not affected by
Affected by affirmative
affirmative defenses
defenses
(fraud, prescription,
estoppel, etc.)
Note: The ule is The e is o ight of a tio
the e is o ause of a tio . (Ibid p.4)
he e
Failure to state cause of
action
Insufficiency in the
allegations of the
complaint
Lack of cause of action
Failure to prove or
establish by evidence
o e s stated ause of
action
As a ground for dismissal
Raised in a motion to
Raised in a demurrer to
dismiss under Rule 16
evidence under Rule 33
before a responsive
after the plaintiff has
pleading is filed
rested his case
Determination
Determined only from
Resolved only on the basis
the allegations of the
of the evidence he has
pleading and not from
presented in support of his
evidentiary matters
claim
4. TEST OF THE SUFFICIENCY OF A CAUSE OF
ACTION
Q: What is the test of sufficiency of the statement
of a cause of action?
A:
1.
Whether or not admitting the facts
alleged, the court could render a valid
verdict in accordance with the prayer of
the complaint (Misamis Occidental II
Coop., Inc. vs. David, 468 SCRA 63; Riano,
p. 92, 2009 ed.)
2.
The sufficiency of the statement of cause
of action must appear on the face of the
complaint and its existence is only
determined by the allegations of the
complaint (Viewmaster Construction Corp.
vs. Roxas, 335 SCRA 540; Riano, Civil
Procedure: A Restatement for the Bar, p.
93, 2009 ed)
Note: The truth or falsity of the allegations is beside
the point because the allegations in the complaint are
hypothetically admitted. Thus a motion to dismiss on
the ground of failure to state a cause of action,
hypothetically admits the matters alleged in the
complaint (Riano, Civil Procedure: A Restatement for
the Bar, p92, 2009 ed.)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
21
UST GOLDEN NOTES 2011
5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS
EFFECTS
Q: What is splitting a cause of action?
A: It is the act of instituting two or more suits on
the basis of the same cause of action (Sec. 4, Rule
2). It is the act of dividing a single or indivisible
cause of action into several parts or claims and
bringing several actions thereon. It is a ground for
the dismissal of others. The rule against splitting of
a cause of action aims to avoid multiplicity of suits,
conflicting decisions and unnecessary vexation and
harassment of defendants. It applies not only to
complaints but also to counterclaims and crossclaims. (1999 Bar Question)
Note: An action for forcible entry should include not
only the plea for restoration of possession but also
claims for damages arising out of the forcible entry
(Progressive Development Corporation, Inc. vs. CA, 301
SCRA 637; Riano, Civil Procedure: A Restatement for
the Bar, p. 108, 2009 ed.)
Q: What are the rules on splitting a single cause of
action?
Note: When the causes of action accrue in favor of the
same plaintiff and against the same defendant, it is not
necessary to ask whether or not the causes of action
arose out of the same transaction or series of
transactions. Also a joinder of causes of action is only
permissive not compulsory, hence a party may desire
to file a single suit for each of his claims.
Q: Is misjoinder of causes of action a ground for
dismissal?
A: No. A misjoined cause of action may, on motion
of a party or on initiative of the court, be severed
and proceeded with separately (Sec. 6 Rule 2).
Q: The complaint filed before the RTC states two
causes of actions, one for rescission of contract
and other for the recovery of 100, 000.00 both of
which arose out of the same transaction. Is the
joinder of the two causes of action proper?
A: Yes. Both are ordinary civil actions and thus,
neither requires special rules. Since the action for
rescission falls under the jurisdiction of the RTC, the
joinder may be made in said court provided the
venue lies therein (Sec. 5, Rule 2; 1996 Bar
Question; Riano, Civil Procedure: A Restatement for
the Bar, p.120, 2009 ed.)
A:
1. Prohibited
the ‘ules of Cou t. A pa t
may not institute more than one suit for a
si gle ause of a tio . Sec.3, Rule 2)
2. The rule against splitting a single cause of
action applies not only to complaints but
also to counterclaims and cross-claims.
(Mariscal vs. Court of Appeals, 311 SCRA 51)
C. PARTIES TO CIVIL ACTIONS
1. REAL PARTIES IN INTEREST; INDISPENSABLE
PARTIES; REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT PARTIES;
ALTERNATIVE DEFENDANTS
Q: What are the kinds of parties in a civil action?
6. JOINDER AND MISJOINDER OF CAUSES OF
ACTION
A:
1.
2.
3.
4.
5.
6.
Q: What is a joinder of causes of action?
A: It is the assertion of as many causes of action a
party may have against another in one pleading
alone (Sec. 5, Rule 2).
Note: Joinder of causes of action must be subject to
the following conditions:
1. The party shall comply with the rules on joinder
of parties;
2. The joinder shall not include special civil actions
governed by special rules;
3. Where causes of action pertain to different
venues, the joinder may be allowed in the RTC
provided one of the causes of action falls within
the jurisdiction of said court and venue lies
therein
4. Where claims in all causes of action are for
recovery of money, the aggregate amount
claimed shall be the test for jurisdiction. (Sec 5,
Rule 2)
22
Real parties in interest
Indispensable parties
Representatives as parties
Necessary parties
Indigent parties
Pro-forma parties
Q: Who is a real party in interest?
A: He is the party 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).
Q: Distinguish an indispensable party from a
necessary party.
A:
Indispensable Parties
Parties in interest
without whom no final
determination can be
Necessary Parties
A necessary party is one
who is not indispensable but
who ought to be joined as a
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
had of an action shall
be joined either as
plaintiffs
or
defendants.
(Sec.7,
Rule 3)
Must be joined under
any and all conditions
because the court
cannot
proceed
without him (Riano,
Civil Procedure: A
Restatement for the
Bar, p. 224, 2009 ed.)
No valid judgment if
they are not joined
Note: In the 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 (Riano,
Civil
Procedure:
A
Restatement for the
Bar, p. 221, 2009 ed.)
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. (Sec.8,
Rule 3)
Note: Should be joined
whenever possible, the action
can proceed even in their
absence because his interest
is separable from that of
indispensable party (Ibid
p.224)
The
case
may
be
determined in court but the
judgment therein will not
resolve
the
entire
controversy if a necessary
party is not joined
Note: Whenever in any
pleading in which a claim is
asserted a necessary party is
not joined, the pleader shall
set forth his name, if known,
and shall state why he is
omitted. 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. The failure to
comply with the order for his
inclusion, without justifiable
cause, shall be deemed a
waiver of the claim against
such party.
The non-joinder of an indispensable or a necessary
party is not by itself ipso facto a ground for the
dismissal of the action. The court should order the
joinder of such party and non-compliance with the
said order would be a ground for the dismissal of the
action (Feria, Civil Procedure Annotated, Vol. I, p. 239,
2001 ed.)
Note: Parties may be dropped or added by order of the
court on motion of any party or on its own initiative at
any stage of the action and on such terms as are just. Any
claim against a misjoined party may be severed and
proceeded with separately. (Sec. 11, Rule 3)
Q: May a party sue the defendants in the
alternative?
A: Yes. Where the plaintiff is uncertain against who
of several persons he is entitled to relief, he may
join any or all of them in the alternative, although a
right to relief against one may be inconsistent with
a right to relief against the other (Sec. 13, Rule 3).
Q: May an action be prosecuted in the name of
other party other than the real party in interest?
A: No. Every action must be prosecuted and
defended in the name of the real party-in-interest
(Sec. 2, Rule 3). 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 a real party-in-interest
(Sec.3 Rule 3; Riano, p. 219, 2009 ed.)
Note: An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be sued
without joining the principal except when the contract
involves things belonging to the principal.
Q: Who is an indigent party?
A: He is one who has no money or property
sufficient and available for food, shelter and basic
necessities for himself and his family. (Sec. 21 Rule
3)
Note: Indigent litigants (a) whose gross income and that
of their immediate family do not exceed an amount
double the monthly minimum wage of an employee and
(b) who do not own real property with a fair market value
as stated in the current tax declaration of more than three
hundred thousand (P300,000.00) pesos shall be exempt
from payment of legal fees. (Sec. 19, Rule 141).
Q: What is the rule on indigent litigants?
A: If the applicant for exemption meets the salary
and property requirements under Sec. 19, Rule 141,
then the grant of the application is mandatory. On
the other hand, when the application does not
satisfy one or both requirements, then the
application should not be denied outright; instead,
the ou t should appl the i dige
test u de
Sec. 21, Rule 3 and use its sound discretion in
determining the merits of the prayer for exemption
(Algura v. LGU of Naga, G.R. No. 150135, Oct. 30,
2006).
Note: While the authority to litigate as an indigent
party may be granted upon an ex parte application and
hearing, it may be contested by the adverse party at
any time before judgment is rendered (Sec. 21, Rule
3).
Q: What does the authority include, if one is
authorized as an indigent party?
A: An exemption from the payment of:
1. Docket fees and other lawful fees
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
23
UST GOLDEN NOTES 2011
2.
Transcript of stenographic notes. (Sec. 21,
Rule 3)
Note: The amount of the docket and other lawful fees
which the indigent was exempted from paying shall be
a lien on any judgment rendered in the case favorable
to the indigent, unless otherwise provided (Sec. 21,
Rule 3).
The basis for the exemption from legal and filing fees is
the free access clause embodied in Sec. 11, Art. III,
1987 Constitution. (Re: Query of Mr. Roger C.
Prioreschi re exemption from legal and filing fees of
The Good Shepherd Foundation, Inc., A.M. No. 09-6-9SC, Aug. 19, 2009)
Q: Who is a pro forma party?
A: One who is joined as a plaintiff or defendant, not
because such party has any real interest in the
subject matter or because any relief is demanded,
but merely because the technical rules of pleadings
require the presence of such party on the record.
(Samaniego vs. Agulia, G.R. No. 125567, June 27,
2000)
2. COMPULSORY AND PERMISSIVE JOINDER OF
PARTIES
and allows the amendment of the complaint at any
stage of the proceedings, through motion or on
order of the court on its own initiative (Sec. 11, Rule
3; Republic v. Sandiganbayan, G.R. No. 152154, July
15, 2003). However, when the order of the court to
implead an indispendable party goes unheeded, the
court may order the dismissal of the case. The court
is fully clothed with the authority to dismiss a
complaint due to the fault of the plaintiff as when,
among others, he does not comply with the order
of the court (Sec. 3, Rule 17; Plasabas vs. CA, GR No.
166519; Riano, Civil Procedure: A Restatement for
the Bar p. 223, 2009 ed.)
4. CLASS SUIT
Q: What is a class suit?
A: It is an action where one or some of the parties
may sue for the benefit of all if the requisites for
said action are complied with. (Riano, Civil
Procedure: A Restatement for the Bar, p. 236, 2009
ed.)
Q: What are its requisites?
A:
1.
Q: When is there a compulsory joinder of parties?
A: The joinder of parties becomes compulsory when
the one involved is an indispensable party. Clearly,
the rule directs a compulsory joinder of
indispensable parties, (Riano, Civil Procedure: A
Restatement for the Bar, p. 222, 2009 ed.)
Q: What are the requisites of permissive joinder of
parties?
A:
1.
2.
3.
Right to relief arises out of the same
transaction or series of transactions
(connected with the same subject matter
of the suit);
There is a question of law or fact common
to all the plaintiffs or defendants; and
Joinder is not otherwise provided by the
provisions of the Rules on jurisdiction and
venue (Sec. 6, Rule 3).
3. MISJOINDER AND NON-JOINDER OF PARTIES
Q: Is the misjoinder or non-joinder of an
indispensable party a ground for the dismissal of
the action or annulment of judgment?
A: No. The Rules prohibit the dismissal of a suit on
the ground of non-joinder or misjoinder of parties
24
2.
3.
4.
Subject matter of the controversy is one
of common or general interest to many
persons;
Parties affected are so numerous that it is
impracticable to bring them all before the
court;
Parties bringing the class suit are
sufficiently numerous or representative of
the class and can fully protect the
interests of all concerned (Sec. 12 Rule 3);
and
Representatives sue or defend for the
benefit of all (Sec.12, Rule 3)
5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL
PERSONALITY
Q: What is the rule on suits against entities
without juridical personality?
A: 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. In
the answer of such defendant, the names and
addresses of the persons composing said entity
must all be revealed (Sec. 15, Rule 3).
Note: Persons associated in an entity without juridical
personality may be sued under the name by which they
are generally or commonly known, but they cannot sue
under such name.
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Question)
6. EFFECT OF DEATH OF PARTY LITIGANT
Q: What is the effect of the death of a party upon
a pending action?
A:
1.
2.
3.
Purely personal – the death of either of
the parties extinguishes the claim and the
action is dismissed.
Not purely personal – claim is not
extinguished and the party should be
substituted by his heirs, executor or
administrator. In case of minor heirs, the
court may appoint a guardian ad litem for
them.
Action for recovery of money arising from
contract and the defendant dies before
entry of final judgment – it shall not be
dismissed but instead shall be allowed to
continue until entry of judgment. A
favorable judgment obtained by the
plaintiff shall be enforced in the manner
provided in the rules for prosecuting
claims against the estate of a deceased
person. (Sec. 20, Rule 3, 1999 Bar
Question)
Note: The substitute defendant need not be
summoned. The order of substitution shall be served
upon the parties substituted for the court to acquire
jurisdiction over the substitute party. (Riano, Civil
Procedure: A Restatement for the Bar, p. 232, 2009 ed.)
If there is notice of death, the court should await
appointment of legal representative; otherwise,
subsequent proceedings are void.
D. VENUE
1. VENUE VERSUS JURISDICTION
Q: Distinguish venue from jurisdiction.
A:
Venue
The
place,
or
geographical area where
an action is to be filed
and tried.
May be waived by:
1. Failure
to
object
through a motion to
dismiss or through an
affirmative defense.
2. Stipulation of the
parties.
Procedural
May be changed by the
written agreement of the
parties
Jurisdiction
Power of the court to
hear and decide a case
Establishes a relation
between plaintiff and
defendant, or petitioner
and respondent.
GR: Not a ground for a
motu proprio dismissal
XPN: In cases subject to
summary procedure.
It is a ground for a motu
proprio dismissal. (Riano,
Civil
Procedure:
A
Restatement for the Bar,
p. 210, 2009 ed.)
Q: Can a complaint be dismissed by the court motu
proprio based on improper venue?
A: No. Improper venue is not one of the grounds
wherein the court may dismiss an action motu
proprio. (Universal Corp. vs. Lim, G.R. No. 154338,
Oct. 5, 2007). Unless and until the defendant
objects to the venue in a motion to dismiss, the
venue cannot be truly said to be improperly laid,
because the venue although technically wrong may
be acceptable to the parties for whose convenience
the rules on venue have been devised. (Dacuycuy
vs. Intermediate Appellate Court, 195 SCRA 641)
2. VENUE OF REAL ACTIONS
Q: What is the venue of real actions?
A: The venue is local, hence the venue is the place
where the real property involved or, any portion
thereof, is situated (Sec. 1, Rule 4).
3. VENUE OF PERSONAL ACTIONS
Q: What is the venue of personal actions?
A: The venue is transitory, hence the venue is the
residence of the plaintiff or defendant at the option
of the plaintiff. (Sec. 3, Rule 4).
4. VENUE OF ACTIONS AGAINST NON-RESIDENTS
Q: Where should the action be commenced and
tried if the defendant is a non-resident?
A:
1.
Defendant does not reside and is found in
the Philippines:
a. Personal actions – shall be
commenced and tried in the court of
the place where the plaintiff resides
b. Real actions – shall be commenced
and tried in the court of the place
where the property is located.
2.
Defendant does not reside and is not
found in the Philippines:
Cannot be waived
Substantive
Cannot be the subject of
the agreement of the
parties.
(2006
Bar
Establishes a relation
between the court and
the subject matter.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
25
UST GOLDEN NOTES 2011
a.
b.
If the action affects the personal
status of the plaintiff – the action
may be commenced and tried in the
court of the place where the plaintiff
resides.
If it involves any property of the nonresident defendant – the action may
be commenced and tried where the
property or any portion thereof is
situated (Sec. 3, Rule 4).
2.
3.
4.
5.
6.
Solely
Exclusively in this court
In no other court save –
Particularly
Nowhere else but/except
Q: When is stipulation on venue void?
A: It is void and unenforceable when it is contrary
to public policy (Sweet Lines v. Teves, G.R. No.
28324, Nov. 19, 1978)
5. WHEN THE RULES ON VENUE DO NOT APPLY
Q: In what instances does the rule on venue of
action inapplicable?
A:
1.
2.
In cases where a specific rule or law
provides otherwise (e.g. an action for
damages arising from libel).
Where the parties have validly agreed in
writing before the filing of the action on
the exclusive venue (Sec. 4, Rule 4).
6. EFFECTS OF STIPULATIONS ON VENUE
Q: What is rule on the stipulations on venue?
A: The parties may agree on a specific venue which
could be in a place where neither of them resides
(Universal Robina Corp. vs. Lim, 535 SCRA 95). The
parties may stipulate on the venue as long as the
agreement is in writing, made before the filing of
the action, and exclusive. (Sec.4[b], Rule 4)
Q: What makes a stipulation on venue exclusive?
A: Venue is exclusive when the stipulation clearly
indicates, through qualifying and restrictive words
that the parties deliberately exclude causes or
actions from the operation of the ordinary
permissive rules on venue and that they intended
contractually to designate a specific venue to the
exclusion of any other court also com petent and
accessible to the parties under the ordinary rules on
venue of actions (Philippine Banking Corp. v.
Tensuan, G.R. No. 106920, Dec. 10, 1993)
Note: A stipulation that the parties agree to sue and
be sued in the courts of Manila is not restrictive or
exclusive to prevent the filing of the suit in the places
provided for by the rules (Riano, Civil Procedure: A
Restatement for the Bar, p. 205, 2009 ed.)
Q: What are examples of words with restrictive
meanings?
A:
1.
26
Note: When the action is no longer based on the
agreement but on the tortuous act of sending
collection telegrams despite the fact that the
obligation had already been paid, venue is no longer
based on the written stipulation but at the election of
the plaintiff as fixed by law. (Zoleta v. Ramillo, G.R. No.
L-58080, Feb. 15, 1982)
E. PLEADINGS
Q: What are pleadings?
A: Pleadings are the written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate judgment.
(Sec.1, Rule 6)
Note: Pleadings cannot be oral because they are
lea l des i ed as
itte state e ts. (Riano, Civil
Procedure: A Restatement for the Bar, p. 51, 2009 ed.)
1. KINDS OF PLEADINGS
Q: What are the kinds of pleadings?
A:
1.
2.
3.
4.
5.
6.
Complaint
Counterclaim
Cross-claim
Third party claim
Reply
Answer
a. COMPLAINT
Q: What is a complaint?
A: It is a concise statement of the ultimate facts
o stituti g the plai tiff s ause o auses of a tio ,
with a specification of the relief sought, but it may
add a general prayer for such further relief as may
be deemed just or equitable.
Note: A pleadi g allegi g the plai tiff s ause o auses
of action. The names and residences of the plaintiff
and defendant must be stated. (Sec. 3, Rule 6)
Only
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
b. ANSWER
Q: What is an answer?
A: It is the pleading where the defendant sets forth
his affirmative or negative defenses (Sec. 4 Rule 6).
It may likewise be the response to a counterclaim
or a cross-claim.
Note: An answer Is a compulsory pleading. This
pleading may be an answer to the complaint, an
answer to counter claim or an answer to a cross-claim
(Riano, Civil Procedure: A Restatement for the Bar, p.
323, 2009 ed.)
(1) NEGATIVE DEFENSES
(2) NEGATIVE PREGNANT
(3) AFFIRMATIVE DEFENSES
Q: What are the two kinds of defenses that may be
set forth in the answer?
A:
1.
2.
Affirmative defenses – allegation of a
new matter which while hypothetically
admitting the material allegations in the
pleading would nevertheless prevent or
bar recovery by the claiming party. It is in
the nature of confession and avoidance
Negative defenses – specific denial of the
material facts or facts alleged in the
pleading essential to establish the
plai tiff s ause of a tio (Sec. 5, Rule 6).
Q: What are insufficient denials or denials
amounting to an admission?
A:
1.
2.
General denial
Denial in the form of a negative pregnant
Q: What is negative pregnant?
A: A denial which does not qualify as a specific
denial. It is conceded to be actually an admission
(Riano, Civil Procedure: A Restatement for the Bar,
p. 327, 2009 ed.). It is a form of denial which, at the
same time, involves an affirmative implication
favorable to the opposing party. It is in effect an
admission of the averment to which it is directed. It
is said to be a denial pregnant with an admission of
the substantial facts in the pleading responded to.
(Regalado, Remedial Law Compendium, Vol. I, p.
177, 2005 ed.)
Note: Where a fact is alleged with some qualification
or modifying language and the denial is conjunctive, a
negative pregnant exists, and only the qualification or
modification is denied, while the fact itself is admitted.
A denial in a form of negative pregnant is an
ambiguous pleading, since it cannot be ascertained
whether it is the fact or only the qualification that is
intended to be denied (Galofa v. Nee Bon Sing, G.R.
No. L-22018, Jan. 17, 1968).
c. COUNTERCLAIMS
Q: What is counterclaim?
A: It is any claim which a defending party may have
against an opposing party (Sec. 6, Rule 6). It
partakes of a complaint by the defendant against
the plaintiff (Pro-Line Sports Inc., v. CA, G.R. No.
118192, Oct. 23, 1997)
Note: The filing of counterclaim gives rise to
complaints, namely, the one filed by plaintiff by way of
original complaint and the one filed by defendant by
way of a counterclaim (Riano, Civil Procedure: A
Restatement for the Bar, p.330, 2009 ed.) A
counterclaim may be asserted against an original
counter-claimant and a cross-claim may also be filed
against an original cross-claimant. (Sec.9, Rule 6)
(1) COMPULSORY COUNTERCLAIM
(2) PERMISSIVE COUNTERCLAIM
Q: Distinguish the two kinds of counterclaim.
A:
Compulsory
Counterclaim
One which arises out of
or is necessarily
connected with the
transaction or
occurrence that is the
subject matter of the
opposi g pa t s lai
(Sec.7, Rule 6)
It does not require for
its adjudication the
presence of third parties
of whom the court
cannot acquire
jurisdiction
Barred if not set up in
the action (Sec. 2, Rule
9)
Need not be answered;
No default
Not an initiatory
pleading.
Need not be
accompanied by a
certification against
forum shopping and
certificate to file action
Permissive Counterclaim
It does not arise out of nor
is it necessarily connected
with the subject matter of
the opposi g pa t s lai
It may require for its
adjudication the presence
of third parties over
whom the court cannot
acquire jurisdiction
Not barred even if not set
up in the action
Must be answered,:
Otherwise, default
Initiatory pleading. (Riano,
Civil Procedure: A
Restatement for the Bar,
p. 336, 2009 ed.)
Must be accompanied by
a certification against
forum shopping and
whenever required by
law, also a certificate to
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
27
UST GOLDEN NOTES 2011
by the Lupong
Tagapamayapa.
The court has
jurisdiction to entertain
both as to the amount
and nature (Sec. 7, Rule
6; Ibid p.331)
file action by the Lupong
Tagapamayapa (Santo
Tomas University v. Surla,
G.R. No. 129718, Aug. 17,
1998) (2007 Bar
Question).
Must be within the
jurisdiction of the court
where the case is pending
and cognizable by regular
courts of justice
otherwise, defendant will
have to file it in separate
proceeding which requires
payment of docket fee
Note: A plaintiff who fails or who chooses not to
answer a compulsory counterclaim may not be
declared in default, principally because the issues
raised in the counterclaim are deemed automatically
joined by the allegations of the complaint (Gojo v.
Goyala, G.R. No. 26768, Oct. 30, 1970).
In an original action before the RTC, the counterclaim
may be considered compulsory regardless of the
amount (Sec. 7, Rule 6).
(3) EFFECT ON THE COUNTERCLAIM WHEN THE
COMPLAINT IS DISMISSED
Q: What is the effect of the dismissal of a
complaint on the counterclaim?
the right of the defendant to prosecute
his counterclaim in the same or separate
action (Sec. 3, Rule 17; Riano, Civil
Procedure: A Restatement for the Bar, p.
340, 2009 ed.)
Q: Fe filed a suit for collection of P387,000 against
Ramon in the RTC of Davao City. Aside from
alleging payment as a defense, Ramon in his
answer set up counterclaims for P100,000 as
damages and P30,000 as attorney's fees as a result
of the baseless filing of the complaint, as well as
for P250,000 as the balance of the purchase price
of the 30 units of air conditioners he sold to Fe.
Suppose that instead of alleging payment as a
defense in his answer, Ramon filed a motion to
dismiss on that ground, at the same time setting
up his counterclaims, and the court grants his
motion. What will happen to his counterclaims?
A: Since Ramon filed only a motion to dismiss, not
an answer, the dismissal of the complaint would
also bring about the dismissal of his counterclaims
but he can file a separate action for his permissive
counterclaims. The compulsory counterclaims are
deemed waived when he filed a motion to dismiss
the complaint instead of answering the same
(Financial Building Corp. v. Forbes Park Association,
Inc., G.R. No. 133119, Aug. 17, 2000). (2008 Bar
Question)
d. CROSS-CLAIMS
A:
1.
2.
3.
28
If no motion to dismiss has been filed, any
of the grounds for dismissal under rule 16
may be pleaded as an affirmative defense
in the answer, and in the discretion of the
court, a preliminary hearing may be had
thereon as if a motion to dismiss has been
filed (Sec. 6, Rule 16). After hearing, when
the complaint is dismissed, the
counterclaim, compulsory or permissive is
not dismissed.
When the plaintiff himself files a motion
to dismiss his complaint after the
defendant has pleaded his answer with a
counterclaim. If the court grants the
motion, the dismissal shall be limited to
the complaint. It 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, manifests his preference to
have his counterclaim resolved in the
same action (Sec. 2, Rule 17).
When the complaint is dismissed through
the fault of the plaintiff and at a time
when a counterclaim has already been set
up, the dismissal is without prejudice to
Q: What are the requirements for a cross-claim?
A:
1.
2.
3.
A claim by one party against a co-party;
It must arise out of the subject matter of
the complaint or of the counterclaim; and
The cross-claimant is prejudiced by the
claim against him by the opposing party.
(Sec. 8, Rule 6)
Q: What is the effect if a cross-claim was not set
up?
A:
GR: Barred if not set up. (Sec.2, Rule 9)
XPN: If it is not asserted through oversight,
inadvertence, or excusable negligence, it may still
be set up with leave of court by amendment of the
pleadings. (Sec.10, Rule 11)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
e. THIRD (FOURTH, ETC.) PARTY COMPLAINTS
Surety & Insurance Co., G.R. No. L-27802, Oct. 26,
1968).
Q: What is a third (fourth, etc.) party complaint?
A: A third (fourth, etc.) party complaint is a claim
that a defending party may, with leave of court, file
against a person not a party to the action, called
the third (fourth, etc.) party defendant, for
contribution, indemnity, subrogation or any other
relief, in respect of his opponent's claim. (Sec.11,
Rule 6)
Q: Distinguish a third-party complaint from the
rules on bringing in new parties.
A: A third-party complaint is proper when not one
of the third-party defendants therein is a party to
the main action. Whereas in bringing in new
parties, if one or more of the defendants in a
counterclaim or cross-claim is already a party to the
action, then the other necessary parties may be
brought in under the rules on bringing in new
parties
Q: Why is leave of court necessary in third (fourth,
etc.) -party complaint?
A: To obviate delay in the resolution of the
complaint such as when the third-party defendant
cannot be located; or unnecessary issues may be
introduced; or the introduction of a new and
separate controversy. (Herrera, Vol. I, p. 705, 2007
ed.)
Q: What are the tests to determine whether the
third-pa t o plai t is i espe t of plai tiff’s
claim?
A:
1.
2.
3.
Whether it arises out of the same
t a sa tio o
hi h the plai tiff s lai
is based, or, although arising out of
another or different transaction, is
o e ted ith the plai tiff s lai ;
Whether the third-party defendant would
be liable to the plaintiff or to the
defe da t fo all o pa t of the plai tiff s
claim against the original defendant; and
Whether the third-party defendant may
assert any defenses which the third-party
plai tiff has o a ha e to the plai tiff s
claim.
Note: Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the third party
complaint, regardless of the amount involved as a
third-party complaint is merely auxiliary to and is a
continuation of the main action (Republic v. Central
A third party complaint is not proper in an action for
declaratory relief. (Commissioner of Customs v.
Cloribel, G.R. No. L-21036, June 30, 1977).
Note: The court is vested with the discretion to allow
or disallow a party to an action to implead an
additional party. Thus, a defendant has no vested right
to file a third party complaint (China Banking
Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007;
Riano, p. 342, 2009 ed.).
Q: Abby obtained a favorable judgment against
UNICAP for a sum of money. For failure to get full
pa e t, A
e t afte UNICAP’s de to Be .
Be is a poli holde of I sula . The ou t’s she iff
then served a notice of garnishment to Insular
over several account receivables due to Ben.
Insular refused to comply with the order alleging
adverse claims over the garnished amounts. The
trial court ordered Insular to release to Abby the
said account receivables of Ben under the policies.
Insular then filed a petition for certiorari with the
CA alleging that the trial judge gravely abused his
discretion when he issued the garnishment order
despite its adverse claim on the garnished
amounts. The CA gave due course to the petition
and annulled the order of the trial court. Is the
Court of Appeals correct?
A: No. Neither an appeal nor a petition for certiorari
is the proper remedy from the denial of a thirdparty claim. Since the third-party claimant is not
one of the parties to the action, he could not,
strictly speaking, appeal from the order denying its
claim, but should file a separate reinvindicatory
action against the execution creditor or a complaint
for damages against the bond filed by the judgment
creditor in favor of the sheriff. The rights of a thirdparty claimant should be decided in a separate
action to be instituted by the third person (Solidum
v. CA, G.R. No. 161647, June 22, 2006).
f. COMPLAINT-IN-INTERVENTION
Q: What is a complaint-in-intervention?
A: An intervention pleading filed for the purpose of
asserting a claim against either or all of the original
parties.
g. REPLY
Q: Is the filing of a reply necessary?
A:
GR: No.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
29
UST GOLDEN NOTES 2011
Note: If a party does not file such reply. All the
new matters that were alleged in the answer are
deemed controverted (Sec. 10, Rule 6)
XPNs:
1. Where the answer alleges the defense of
usury in which case a reply under oath
should be made. Otherwise, the
allegation of usurious interest shall be
deemed admitted.
2. Where the defense in the answer is based
on an actionable document, a reply under
oath pursuant to Sec. 8 of Rule 8 must be
made. Otherwise, the genuineness and
due execution of the document shall be
deemed admitted.
2. PLEADINGS ALLOWED IN SMALL CLAIM CASES
AND CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE
3. PARTS OF A PLEADING
a. CAPTION
Q: What should the caption contain?
A: The caption sets forth the name of the court, the
title of the action, and the docket number if
assigned. (Sec. 1, Rule 7)
Q: What should the title of the caption indicate?
A: It should indicate the names of the parties. They
shall all be named in the original complaint or
petition but in subsequent pleadings, it shall be
sufficient if the name of the first party on each side
be stated with an appropriate indication when
there are other parties. (Sec. 1, Rule 7)
b. SIGNATURE AND ADDRESS
Q: What are the pleadings allowed in a summary
procedure?
Q: What is the rule regarding the signature and
address?
A:
A: The complaint must be signed by the plaintiff or
counsel representing him indicating his address.
This address should not be a post office box. An
unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow
such deficiency to be remedied if it shall appear
that the same was due to mere inadvertence and
not intended for delay. Counsel who deliberately
files an unsigned pleading, or signs a pleading in
violation of this Rule, or alleges scandalous or
indecent matter therein, or fails to promptly report
to the court a change of his address, shall be
subject to appropriate disciplinary action (Sec. 3,
Rule 7)
1.
2.
3.
4.
Complaint
Compulsory counterclaim
Cross-claims pleaded in the answer
Answer to these pleadings (Sec. 3, Rules
on Summary Procedure; Riano, p. 177,
2009 ed.)
Q: What are the prohibited pleadings, motions and
petitions in small claims?
A:
1.
Motion to dismiss the complaint except
on the ground of lack of jurisdiction.
2. Motion for a bill of particulars.
3. Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial.
4. Petition for relief from judgment.
5. Motion for extension of time to file
pleadings, affidavits, or any other paper.
6. Memoranda.
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court.
8. Motion to declare the defendant in
default.
9. Dilatory motions for postponement.
10. Reply.
11. Third-party complaints.
12. Interventions. (Sec.14 of A.M. No. 08-8-7SC)
30
c. VERIFICATION AND CERTIFICATION AGAINST
FORUM SHOPPING
Q: How are pleadings verified?
A: It is verified by an affidavit. This affidavit declares
that the:
1. Affiant has read the pleading; and
2. Allegations therein are true and correct of
his personal knowledge or based on
authentic records (Sec. 4, Rule 7)
Q: Is verification necessary in pleadings?
A: No, except when otherwise specifically required
by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit. (Sec. 4, Rule 7)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
2.
Q: What is the significance of verification?
A: it is intended to secure an assurance that the
allegations in a pleading are true and correct and
not the product of the imagination or a matter of
speculation, and that the pleading is filed in good
faith. The absence of a proper verification is cause
to treat the pleading as unsigned and dismissible
(Chua vs. Torres, 468 SCRA 358; Riano, Civil
Procedure: A Restatement for the Bar, p. 60, 2009
ed.)
3.
Q: What are the pleadings that should be verified?
A: The following should be verified:
1. Petition for relief from judgment
2. Petition for review from the RTCs to the
CA
3. Petition for review from the CTA and
quasi-judicial agencies to the CA
4. Appeal by certiorari from the CA to the SC
5. Petition for annulment of judgments or
final orders and resolutions
6. Complaint for injunction
7. Application for appointment of receiver
8. Application for support pendente lite
9. Petition for certiorari against the
judgments, final orders or resolutions of
constitutional commissions
10. Petition for certiorari, prohibition,
mandamus, quo warranto
11. Complaint for expropriation
12. Complaint for forcible entry or unlawful
detainer
13. Petition for indirect contempt
14. Petition for appointment of general
guardian
15. Petition for leave to sell or encumber
property of an estate by a guardian
16. Petition
for
the
declaration
of
competency of a ward
17. Petition for habeas corpus
18. Petition for change of name
19. Petition for voluntary judicial dissolution
of a corporation;
20. Petition for correction or cancellation of
entries in Civil Registry. (1996 Bar
Question)
It does not necessarily render the
pleading defective. It is only a formal and
not a jurisdictional requirement. The
requirement is a condition affecting only
the form of the pleading (Benguet Corp. v.
Cordillera Caraballo Mission, Inc., G.R. No.
155343, Sept. 2, 2005) and noncompliance
therewith
does
not
necessarily render it fatally defective
(Sarmiento v. Zaranta, G.R. No. 167471,
Feb. 5, 2007)
The absence of verification may be
corrected by requiring an oath. The rule is
in keeping with the principle that rules of
procedure are established to secure
substantial justice and that technical
requirements may be dispensed with in
meritorious cases (Pampanga Sugar
Development Co., Inc. v. NLRC, G.R. No.
112650, May 29, 1997)
Q: What is the nature of the certification against
non-forum shopping?
A: It is a mandatory requirement in filing a
complaint and other initiatory pleadings asserting a
claim or relief (Sec. 5, Rule 7). This rules applies as
well to special civil actions since a since rules for
ordinary civil action are suppletory (Riano, Civil
Procedure: A Restatement for the Bar, p. 63, 2009
ed.).
Q: Who executes certification against forumshopping?
A: It is the plaintiff or principal party who executes
the certification under oath (Sec. 5, Rule 7). It must
be signed by the party himself and cannot be signed
by his counsels. (Digital Microwave Corp. v. CA, G.R.
No. 128550, Mar. 16, 2000). It is the plaintiff who is
in the best position to know whether he or it
actually filed or caused the filing of a petition. (Far
Eastern Shipping Co. v. CA, G.R. No. 130068, Oct. 1,
1998)
Q: What are the undertakings of a party under the
certification against forum shopping?
A:
Q: What are the effects of lack of verification?
1.
That the party has not commenced or
filed any claim involving the same issues
in any court, tribunal, or quasi-judicial
agency and, to the best of his knowledge,
no such other action or claim is pending
2.
That if there is such other pending action
or claim, a complete statement of the
present status thereof
A:
1.
A pleading required to be verified but
lacks the proper verification shall be
treated as an unsigned pleading (Sec. 4 as
amended by A.M. 00-2-10, May 1, 2000).
Hence, it produces no legal effect (Sec. 3,
Rule 7)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
31
UST GOLDEN NOTES 2011
3.
That if he should therefore learn that the
same or similar action or claim has been
filed or is pending, he shall report that
fact within five days therefrom to the
court wherein his aforesaid complaint or
initiatory pleading has been filed (Sec. 5,
Rule 7)
filing of the certification 14 days before the
dismissal of the petition. In Uy v. LandBank,
supra, the Cou t had dis issed U s petitio fo
lack of verification and certification against nonforum shopping. However, it subsequently
reinstated the petition after Uy submitted a
motion to admit certification and nonforum shopping certification. In all these cases,
there were special circumstances or compelling
reasons that justified the relaxation of the rule
requiring verification and certification on nonforum shopping.
Q: What is the effect of non-compliance with the
rule on certification against forum shopping?
A: It is not curable by mere amendment and shall
be a cause for the dismissal of action (Sec.5, Rule 7).
Note: When the case is dismissed due to noncompliance with the certification, filing fees cannot be
recovered.
Q: Is substantial compliance allowed by the
courts?
A:
GR: No. The rule is that the certificate of nonforum shopping must be signed by all the
petitioners or plaintiffs in a case and the signing
by only one of them is insufficient.
Q: What is the effect of non-compliance with the
undertakings?
A: It has the same effect as the submission of false
certification. Hence, such failure shall constitute
indirect contempt of court without prejudice to the
corresponding
administrative
and
criminal
sanctions. (Sec. 5 Rule 7).
XPN: However, the Court has also stressed that
the rules on forum shopping, which were
designed to promote and facilitate the orderly
administration of justice, should not be
interpreted with such absolute literalness as to
subvert its own ultimate and legitimate
objective. The rule of substantial compliance
may be availed of with respect to the contents
of the certification. This is because the
requirement of strict compliance with the
provisions regarding the certification of nonforum shopping merely underscores its
mandatory nature in that the certification
cannot be altogether dispensed with or its
requirements completely disregarded. It does
not thereby interdict substantial compliance
with
its
provisions
under
justifiable
circumstances. (Cavile v. Heirs of Clarita Cavile,
448 Phil 302, 2003)
Q: What is the effect of submission of a false
certification?
A: It shall constitute indirect contempt of court,
without
prejudice
to
the
corresponding
administrative and criminal actions (Sec. 5, Rule 7)
Q: What is the effect of willful and deliberate
forum shopping of the party or his counsel?
A: It shall be a ground for summary dismissal. This
dismissal is with prejudice and shall constitute
direct contempt as well as cause for administrative
sanctions (Sec. 5, Rule 7).
Q: Is belated filing allowed by the courts?
Q: When should the rule on forum shopping be
invoked?
A:
GR: No. The lack of certification against
forum shopping is generally not curable by the
submission thereof after the filing of the
petition.
XPN: In certain exceptional circumstances,
however, the Court has allowed the belated
filing of the certification. In Loyola v. Court of
Appeals, et al. (245 SCRA 477 [1995]), the Court
considered the filing of the certification one day
after the filing of an election protest
as substantial compliance with the requirement.
In Roadway Express, Inc. v. Court of Appeals, et
al. (264 SCRA 696 [1996]), the Court allowed the
32
A:
It should be raised at the earliest
GR:
opportunity in a motion to dismiss or a similar
pleading.
Note: Invoking it in the later stages of the
proceedings or on appeal may result in the
dismissal of the action which invokes forum
shopping.
XPNs: It may be invoked in the later stages only
if the violation arises from or will result in:
1. The loss of jurisdiction over the subject
matter
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
2.
3.
4.
The pendency of another action between
the same parties for the same cause
Barring of the action by a prior judgment
The Statute of Limitations has been
crossed (Young v. Keng Seng, G.R.
No.143464, Mar. 5, 2003).
Q: Mayor Miguel, Mayor of City Koronadal, filed
an action against RD Corporation for the
annulment of the deed of absolute sale over
several real properties of City of Koronadal
alleging irregularities thereto with the RTC. The
said deed of absolute sale was authorized by
Ma o Miguel’s p ede esso , Ma o de Jesus. The
RTC dismissed the petition because the
certification against forum shopping was signed by
the City Legal Officer of City of Koronadal and not
by Mayor Miguel. Is the RTC correct?
A: Yes. It is the mayor, not the City Legal Officer,
who has the authority to file suits for the recovery
of funds and property on behalf of the city even
without the prior authorization from the
Sanggunian. Here, Mayor Miguel had the authority
to institute the action against RD Corporation.
However, being the proper party to file such suits,
Mayor Miguel must necessarily be the one to sign
the certification against forum-shopping, and not
the City Legal Officer, who, despite being an official
of the City, was merely its counsel and not a party
to the case (City of Caloocan v. CA, G.R. No. 145004,
May 3, 2006).
(1) REQUIREMENTS OF A CORPORATION
EXECUTING THE VERIFICATION/CERTIFICATION OF
NON-FORUM SHOPPING
A: No. When the petitioner in a case is a
corporation, the certification against forum
shopping should be signed by its duly authorized
director or representative. The authorized director
or representative of the corporation should be
vested with authority by a valid board resolution. A
proof of said authority must be attached with the
certification (PAL v. FASAP, G.R. No. 143088, Jan.
24, 2006).
d. EFFECT OF THE SIGNATURE OF COUNSEL IN A
PLEADING
Q: What is the effe t of la
e ’s sig atu e?
A: The signature of counsel constitutes:
1. A certificate by him that he has read the
pleadings;
2. That to the best of his knowledge,
information and belief there is good
ground to support it; and
3. That it is not interposed for delay. (Sec. 3,
Rule 7)
4. ALLEGATIONS IN A PLEADING
a. MANNER OF MAKING ALLEGATIONS
Q: What is the rule when making a pleading?
A: Every pleading shall contain in a methodical and
logical form a plain, concise and direct statement of
the ultimate facts, omitting the statement of mere
evidentiary facts. (Sec. 1, Rule 6)
Q: What are Ultimate facts?
Q: What is the rule when the plaintiff is a juridical
person?
A: The certification against forum shopping where
the plaintiff is a juridical entity like a corporation,
may be executed by properly authorized person.
This person may be a lawyer of a corporation. As
long as he is duly authorized by the corporation and
has personal knowledge of the facts required to be
disclosed in the certification, such may be signed by
the authorized lawyer (National Steel Corporation
vs. CA, 388 SCRA 85; Riano, Civil Procedure: A
Restatement for the Bar, p. 70, 2009 ed.)
Q: Corporation XYZ is the petitioner in a civil case.
Alexander, president of corporation XYZ, signed
the certification against forum shopping in behalf
of said corporation without presenting any proof
of authority from the corporation. Is the
certification against forum shopping valid? If not,
how may it be cured?
A: They refer to the essential facts of the claim. A
fact is essential if it cannot be stricken out without
leaving the statement of the cause of action
insufficient. (Ceroferr Realty Corporation vs. Court
of Appeals, 376 SCRA 144)
(1) CONDITION PRECEDENT
Q: What is condition precedent?
A: It refers to matters which must be complied with
before a cause of action arises. (Riano, Civil
Procedure: A Restatement for the Bar, p. 97, 2009
ed.)
Q: What is the rule on conditions precedent?
A: When a claim is subject to a condition precedent,
the compliance of the same must be alleged in the
pleading. Otherwise it will be a ground for dismissal
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
33
UST GOLDEN NOTES 2011
for failure to state a cause of action. Such as tender
of payment before consignation, prior resort to
barangay conciliation when necessary, and etc
(Riano, Civil Procedure: A Restatement for the Bar,
p. 97, 2009 ed.).
(2) FRAUD, MISTAKE, MALICE, INTENT,
KNOWLEDGE AND OTHER CONDITION OF THE
MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR
ACTS
Q: What is the rule in making averments of fraud
or mistake?
A: The circumstances constituting such fraud or
mistake must be stated with particularity (Sec. 5,
Rule 8). The complaint must state with particularity
the fraudulent acts of the adverse party. These
particulars would necessarily include the time,
place, and specific acts of fraud committed against
him (Riano, Civil Procedure: A Restatement for the
Bar, p. 98, 2009 ed.).
Q: How are actionable documents pleaded?
A: By setting forth:
1. The substance of such document in the
pleading and attaching said document
thereto as an exhibit
2. Said document verbatim in the pleading
(Sec. 7, Rule 8).
Note: A variance in the substance of the document set
forth in the pleading and the document annexed
thereto does not warrant the dismissal of the action
(Convets, Inc. v. National Development Co., G.R. No. L10232, Feb. 28, 1958). However, the contents of the
document annexed are controlling.
c. SPECIFIC DENIALS
Q: What are the kinds of specific denial?
A:
1.
Q: What is the rule in making averments of malice,
intent, knowledge or other conditions of the mind
of a person?
A: The circumstances constituting such may be
averred generally (Sec.5, Rule 8).
Q: What is the rule in pleading an official
document or act?
A: It is sufficient to aver that the document was
issued in compliance with law. With respect to an
act, it is likewise sufficient to allege that the act was
done also in compliance with law (Sec.9, Rule 8;
Riano, Civil Procedure: A Restatement for the Bar, p.
98, 2009 ed.).
b. PLEADING AN ACTIONABLE DOCUMENT
Q: What is an actionable document?
A: Referred to as the document relied upon by
either the plaintiff and the defendant. (Araneta, Inc.
vs. Lyric Factor Exchange, Inc. 58 Phil 736) E.g. A
promissory note in an action for collection of a sum
of money. (Riano, Civil Procedure: A Restatement
for the Bar, p. 101, 2009 ed.)
Note: This manner of pleading a document applies
only to an actionable document, i.e., one which is the
basis of an action or a defense. Hence, if a document
does not have the character of an actionable
document, it need not be pleaded strictly in the
manner prescribed by the rules (Ibid p.102)
34
2.
3.
Absolute denial – defendant specifies
each material allegation of fact the truth
of which he does not admit and,
whenever practicable, shall set forth the
substance of the matters upon which he
relies to support his denial.
Partial denial – defendant denies only a
part of an averment. In this kind he shall
specify so much of it as is true and
material and shall deny only the
remainder.
Disavowal of knowledge – defendant
alleges that he is without knowledge or
information sufficient to form a belief as
to the truth of a material averment made
in the complaint.
(1) EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS
Q: What is the effect of failure to make specific
denial?
A: Material averments except as to the amount of
unliquidated damages, not specifically denied are
deemed admitted. If the allegations are deemed
admitted, there is no more triable issue between
the parties and if the admissions appear in the
answer of the defendant, the plaintiff may file a
motion for judgment on the pleadings under Rule
34 (Riano, Civil Procedure: A Restatement for the
Bar, p. 324, 2009 ed.)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
(2) WHEN A SPECIFIC DENIAL REQUIRES AN OATH
6. DEFAULT
Q: When is a specific denial must be coupled with
an oath?
a. DECLARATION OF DEFAULT
Q: When is a declaration of default proper?
A:
1.
A denial of an actionable document (Sec.
8, Rule 8)
2.
A denial of allegations of usury in a
complaint to recover usurious interest (Sec. 11,
Rule 8)
A: 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, Rules of
Court). (Riano, p. 507, 2005 ed.)
5. EFFECT OF FAILURE TO PLEAD
a. FAILURE TO PLEAD DEFENSES AND OBJECTIONS
Q: May defenses not pleaded in a motion to
dismiss or in the answer still be raised?
A:
GR: No, they are deemed waived.
XPNs: These defenses may be raised at any
stage of the proceedings even for the first time
on appeal (Tijam v. Sibonghanoy, G.R. No. L21450, Apr. 15, 1968):
1. Lack of jurisdiction over the subject
matter;
Q: In what situations where declaration of default
is proper?
A: It is proper in 3 situations:
1. Defendant did not file any answer or
responsive pleading despite valid service
of summons;
2. Defendant filed an answer or responsive
pleading but beyond the reglementary
period; and
3. Defendant filed an answer to the court
but failed to serve the plaintiff a copy as
required by the Rules.
b. EFFECT OF AN ORDER OF DEFAULT
Note: It may however, be barred by laches.
Q: What are the effects of an order of default?
2.
3.
4.
Litis pendentia;
Res judicata; and
Statute of limitations (Sec. 1, Rule 9)
A:
1.
b. FAILURE TO PLEAD A COMPULSORY
COUNTERCLAIM AND CROSS-CLAIM
2.
Q: May a compulsory counterclaim or cross-claim
not set up in the answer still be raised
subsequently?
A:
GR: A compulsory counterclaim or cross-claim
not set up in the answer is deemed barred (Sec.
2, Rule 9).
XPN: If the compulsory counterclaim or crossclaim is an after-acquired counterclaim, that is,
such claim matured after filing of the answer, it
may be pleaded by filing an amended answer or
a supplemental answer or pleading (Sec. 9, Rule
11).
3.
c. RELIEF FROM AN ORDER OF DEFAULT
Q: What are the reliefs from an order of default?
A:
1.
Note: Counterclaims or cross-claims omitted through
oversight, inadvertence, or excusable neglect or when
justice requires may be set up by amendment before
judgment. Leave of court is necessary (Sec. 10, Rule
11).
The party declared in default loses his
standing in court. The loss of such
standing prevents him from taking part in
the trial [Sec. 3(a), Rule 9];
While the defendant can no longer take
part in the trial, he is nevertheless
entitled to notices of subsequent
proceedings [Sec. 3 (a), Rule 9]. It is
submitted that he may participate in the
trial, not as a party but as a witness; and
A declaration of default is not an
admission of the truth or the validity of
the plai tiff s lai s (Monarch Insurance
v. CA, G.R. No. 92735, June 8, 2000).
After notice of order and before judgment
– The defendant must file a verified
motion to set aside the order of default
upon proper showing that:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
35
UST GOLDEN NOTES 2011
a.
b.
2.
3.
4.
His failure to answer was due to
fraud, accident, mistake or excusable
negligence; and
That he has a meritorious defense.
[Sec. 3(b), Rule 9] (2000 & 1999 Bar
Question)
f. ACTIONS WHERE DEFAULT ARE NOT ALLOWED
Q: When is default not allowed?
A:
1.
2.
After judgment and before judgment
becomes final and executory – He may file
a motion for new trial under Rule 37. He
may also appeal from the judgment as
being contrary to the evidence or the law
(Talsan Enterprises, Inc. v. Baliwag
Transit, Inc., G.R. No. 169919, Sept. 11,
2009)
After the judgment becomes final and
executory – he may file a petition for
relief from judgment under Rule 38
(Balangcad v. Justices of the CA, G.R. No.
83888, Feb. 12, 1992) (2006, 1998 Bar
Question)
Where the defendant has however, been
wrongly or improvidently declared in
default, the court can be considered to
have acted with grave abuse of discretion
amounting to lack or excess of jurisdiction
and when the lack of jurisdiction is patent
in the face of the judgment or from the
judicial records, he may avail of the
special civil action of certiorari under Rule
65 (Balangcad v. Justices of the CA, G.R.
No. 83888, Feb. 12, 1992)
3.
Actions for annulment;
Declaration of nullity of marriage and
legal separation [Sec. 3(e), Rule 9]; and
In special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is
required to be filed.
7. FILING AND SERVICE OF PLEADINGS
Q: What papers are required to be filed and
served?
A: Every judgment, resolution, order, pleading
subsequent to the complaint, written motion,
notice, appearance, demand, offer of judgment or
similar papers shall be filed with the court, and
served upon the parties affected. (Sec.4, Rule 13)
a. PAYMENT OF DOCKET FEES
Q: What is the significance of paying the docket
fees?
A: A complaint is not considered filed unless the
proper amount of the docket fee is paid. Thus, if the
proper docket fee is not paid, the period of
prescription continues to run.
b. FILING VERSUS SERVICE OF PLEADINGS
d. EFFECT OF A PARTIAL DEFAULT
Q: What is filing?
Q: What is the effect of partial default?
A: It is the act of presenting the pleading or other
paper to the clerk of court. (Sec. 2, Rule 13)
A:
GR: The court will try the case against all
defendants upon the answer of some.
XPN: Where the defense is personal to the one
who answered, in which case, it will not
benefit those who did not answer e.g. forgery.
(1995 Bar Question)
e. EXTENT OF RELIEF
Q: What is service?
A: It is the act of providing a party with a copy of
the pleading or paper concerned. If any party has
appeared by counsel, service upon him shall be
made upon his counsel or one of them, unless
service upon the party himself is ordered by the
court. (Sec. 2, Rule 13)
c. PERIODS OF FILING OF PLEADINGS
Q: What is the extent of relief?
A: The judgment shall not exceed the amount or be
different in kind from that prayed for nor award
unliquidated damages [Sec. 3(d), Rule 9]. However,
if the court orders submission of evidence,
unliquidated damages may be awarded based on
such.
36
Q. When should a responsive pleading be filed?
A:
Answer to an original
complaint
Periods for Filing an
Answer
Within 15 days after
service
of
summons,
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Defendant is a foreign
private juridical entity
and has a resident
agent
Defendant is a foreign
private juridical entity
and has no resident
agent but has an agent
/ officer in the
Philippines
Defendant is a foreign
private juridical entity
and has no resident
agent nor agent/
officer.
(Summons to be served
to SEC which will then
send a copy by
registered mail within
10 days to the home
office of the foreign
private corporation)
Service of summons by
publication
Non-resident defendant
to whom
extraterritorial service
of summons is made
Answer to amended
complaint (Matter of
right)*
Answer to amended
complaint (Not a
matter of right)*
Counterclaim or crossclaim
Third (fourth, etc.)
party complaint
Supplemental
complaint
unless a different period is
fixed by the court (Sec. 1,
Rule 11).
Within 15 days after
service of summons (Sec.6,
in relation to Sec.5[a], Rule
2, A.M. NO. 00-8-10-SC
2000-11-21)
Within 15 days after
service of summons to
said agent or officer (Sec.6,
in relation to Sec.5[b], Rule
2, A.M. NO. 00-8-10-SC
2000-11-21)
Within 30 days after
receipt of summons by the
home office of the foreign
private entity
d. MANNER OF FILING
Q: What are the modes of filing?
A:
1.
2.
By presenting the original copies thereof,
plainly indicated as such, personally to
the clerk of court; or
By sending them through registered mail
(Sec. 3, Rule 13)
Note: Filing by mail should be through the registry
service which is made by deposit of the pleading in the
post office, and not through other means of
transmission.
e. MODES OF SERVICE
Q: What are the modes of service?
A:
1.
2.
Within the time specified
in the order which shall
not be less than 60 days
after notice (Sec. 15, Rule
14)
Not be less than 60 days
after notice (Sec. 15, Rule
14)
Within 15 days from
service
of
amended
complaint (Sec. 3. Rule 11)
Within 10 days counted
from notice of the court
order admitting the same
(Sec. 3, Rule 11)
Within 10 days from
service (Sec. 4, Rule 11)
Like an original defendant
– 15, 30, 60 days as the
case may be (Sec. 5;
Regalado, Vol. I, p. 212,
2005 ed.)
Within 10 days from
notice of order admitting
the same unless a different
period is fixed by the court
(Sec. 7, Rule 11)
Note: Upon motion and on such terms as may be just,
the court may extend the time to plead provided in
these Rules. The court may also, upon like terms, allow
an answer or other pleading to be filed after the time
fixed by these Rules. (Sec.11, Rule 11)
3.
Personal service (Sec. 6, Rule 13);
Service by registered mail (Sec. 7, Rule
13); or
Substituted service (Sec. 8, Rule 13).
(1) PERSONAL SERVICE
Q: How is personal service done?
A: By:
1.
2.
3.
Delivering personally a copy to the party
or his counsel;
Lea i g a op i ou sel s offi e ith his
clerk or with a person having charge
thereof; or
Leaving the copy between 8 a.m. and 6
p. . at the pa t s o ou sel s eside e,
if known, with a person of sufficient age
and discretion residing therein if no
person found in his office, or if his office is
unknown, or if he has no office (Sec. 6,
Rule 13).
(2) SERVICE BY MAIL
Q: How is service by mail done?
A:
1.
By depositing the copy in the post office
in a sealed envelope, plainly addressed to
the party or his counsel at his office, if
known, otherwise at his residence, if
known, with postage fully prepaid, and
with instructions to the postmaster to
return the mail to the sender after 10
days if undelivered; or
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
37
UST GOLDEN NOTES 2011
2.
If no registry service is available in the
locality of either the sender or the
addressee, service may be done by
ordinary mail (Sec. 7, Rule 13).
2.
3.
(3) SUBSTITUTED SERVICE
Q: How and when is substituted service made?
4.
A: If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be
made under the two preceding sections, the office
and place of residence of the party or his counsel
being unknown, service may be made by delivering
the copy to the clerk of court, with proof of failure
of both personal service and service by mail (Sec. 8,
Rule 13).
(7) PROOF OF FILING AND SERVICE
Q: What are the proofs of filing?
A:
GR: Filing is proven by its existence in the
record of the case.
(4) SERVICE OF JUDGMENTS, FINAL ORDERS OR
RESOLUTIONS
XPN: If it is not in the record, and:
1. If filed personally – proved by the written
or stamped acknowledgement of its filing
by the clerk of court on a copy of the
same; or
2. If filed by registered mail – proved by the
registry receipt and the affidavit of the
person who did the mailing with a full
statement of:
a. The date and place of depositing the
mail in the post office in a sealed
envelope addressed to the court;
b. With postage fully paid; and
c. With instructions to the postmaster
to return the mail to the sender after
10 days if undelivered. (Sec. 12, Rule
13)
Q: How is service of judgment of final orders or
resolutions done?
A: By:
1.
2.
3.
Service by ordinary mail – upon expiration
of 10 days after mailing, unless the court
otherwise provides.
Service by registered mail – upon actual
receipt by the addressee, or 5 days from
the date he received the first notice of the
postmaster, whichever date is earlier
(Sec. 10, Rule 13).
Substituted service – at the time of such
delivery (Sec. 8, Rule 13).
Personal service;
Registered mail; or
Publication, if party is summoned by
publication and has failed to appear in the
action (Sec. 9, Rule 13)
Note: No substituted service.
(5) PRIORITIES IN MODES OF SERVICE AND FILING
Q: What are the priorities in modes of service and
filing?
Q: What are the proofs of service?
A:
GR: Whenever practicable, the service and filing
shall be done personally.
A:
1.
XPN: With respect to papers emanating from
the court, a resort to other modes must be
accompanied by a written explanation why the
service or filing was not done personally (Sec.
11, Rule 13)
2.
Note: A violation of this rule may be cause to consider
the paper as not filed (Sec. 11, Rule 13).
(6) WHEN SERVICE IS DEEMED COMPLETE
3.
Q: When is service deemed complete?
A:
1.
Personal service – upon actual delivery.
Proof of personal service:
a. Written Admission of the party
served; or
b. Official return of the server or
c. Affidavit of the party serving,
containing the date, place and
manner of service.
Proof of service by ordinary mail:
a. Affidavit
of
mailer
showing
compliance of Sec. 7, Rule 13; and
b. Registry receipt issued by the mailing
officer (Sec. 13, Rule 13)
Registered mail:
a. Affidavit; and
b. Registry receipt issued by the mailing
office.
Note: The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu
38
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
thereof the unclaimed letter together with the
certified or sworn copy of the notice given by the
postmaster to the addressee. (Sec. 13, Rule 13)
Q: What is a notice of lis pendens?
A: In an action affecting the title or the right of
possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his
answer, may record in the office of the registry of
deeds of the province in which the property is
situated a notice of the pendency of the action.
Note: 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.14, Rule 13)
8. AMENDMENT
Q: How are pleadings amended?
A: By:
1.
2.
Note: Plaintiff may amend his complaint even if the
same was dismissed on motion of the defendant
provided that the dismissal order is not yet final.
(Arranz vs. Manila Surety and Fidelity Co., Inc., L128441, June 30, 1960)
c. FORMAL AMENDMENT
Q: What is the rule on formal amendments?
A: 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. AMENDMENTS TO CONFORM TO OR
AUTHORIZE PRESENTATION OF EVIDENCE
Q: When may amendment be made to conform to
or authorize presentation of evidence?
A:
1.
Adding or striking out an allegation or the
name of any party; or
Correcting a mistake in the name of a
party or a mistaken or inadequate
allegation or description in any other
respect (Sec. 1, Rule 10)
Note: Failure to amend does not affect the
result of the trial of said issue.
2.
a. AMENDMENT AS A MATTER OF RIGHT
Q: When is amendment considered as a matter of
right?
A: It is considered as a matter of right at any time
before a responsive pleading is served or, in the
case of a reply, at any time within ten (10) days
after it is served (Sec. 2, Rule 10).
Note: A motion to dismiss is not a responsive pleading
and its filing does not preclude the exercise of the
plai tiff s ight to a e d his o plai t. (Riano, p. 246,
2009 ed.
b. AMENDMENTS BY LEAVE OF COURT
Q: When is leave of court required?
A:
1.
2.
If the amendment is substantial (Sec. 3,
Rule 10); and
A responsive pleading had already been
served (Siasoco v. CA, G.R. No.
132753. Feb. 15, 1999) (1994 Bar
Question)
When issues not raised by the pleadings
are tried with the express or implied
consent of the parties.
Amendment may also be made to
authorize presentation of evidence if
evidence is objected to at the trial on the
ground that it is not within the issues
made by the pleadings, if the
presentation of the merits of the action
and the ends of substantial justice will be
subserved thereby (Sec. 5, Rule 10).
e. DIFFERENT FROM SUPPLEMENTAL PLEADINGS
Q: Distinguish an amended pleading from a
supplemental pleading.
A:
Amended Pleading
Refer to the facts existing
at the time of filing of
original pleading
Supersedes the original
May be amended without
leave of court before a
responsive pleading is
filed.
Amendment must be
appropriately marked.
Supplemental Pleading
Refers to facts occurring
after the filing of the
original pleading.
Merely supplements the
original pleading.
Always with leave of
court
There is no such
requirement
in
supplemental pleadings
(Herrera, Vol. I, p. 854,
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
39
UST GOLDEN NOTES 2011
2007 ed.)
f. EFFECT OF AMENDED PLEADING
Q: What is the effect of an amended pleading?
A: An amended pleading supersedes the pleading it
amends. However, admissions in the superseded
pleading can still be received in evidence against
the pleader. Claims or defenses alleged therein but
not incorporated or reiterated in the amended
pleading are deemed waived (Sec. 8, Rule 10).
F. SUMMONS
1. NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM, IN REM
AND QUASI IN REM
Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of
the action brought against him (Gomez vs. Court of
Appeals, G.R. No. 127692, March 10, 2004). An
important part of that notice is a direction to the
defendant that he must answer the complaint
within a specified period, and that unless he so
answers, plaintiff will take judgment by default and
may be granted the relief applied for (Sec. 2, Rule
14). (Riano, p. 411 , 2005 ed.)
Q: What are the purposes of summons?
A:
1.
2.
Actions in personam
a. To acquire jurisdiction over the
person of the defendant; and
b. To give notice to the defendant that
an action has been commenced
against him (Umandap v. Sabio, Jr.,
G.R. No. 140244, Aug. 29, 2000)
Actions in rem and quasi in rem – not to
acquire jurisdiction over the defendant
but mainly to satisfy the constitutional
requirement of due process (Gomez v. CA,
G.R. No. 127692, Mar. 10, 2004).
2. VOLUNTARY APPEARANCE
Note: Voluntary appearance cures the defect in
the service of summons.
XPN: Special appearance in court to challenge
its jurisdiction over the person of the defendant
and the inclusion in a motion to dismiss of other
grounds shall not be deemed a voluntary
appearance (Sec. 20, Rule 15; La Naval Drug
Corp. v. CA, G.R. No. 103200, Aug. 31, 1994).
3. PERSONAL SERVICE
Q: When is personal service of summons proper?
A: Only if the suit is one strictly in personam. The
service of summons must be made by service in
person on the defendant. This is effected by
handing a copy of the summons to the defendant in
person, or if he refuses to receive it, by tendering
the copy of the summons to him (Sec. 6, Rule 14).
(Riano, p. 423 , 2005 ed.)
4. SUBSTITUTED SERVICE
Q: When is substituted service of summons
proper?
A: In our jurisdiction, for substituted service of
summons to be valid, it is necessary to establish the
following:
1. The impossibility of service of summons in
person within a reasonable time;
2. The efforts exerted to locate the person to
be served; and
3. Service upon a person of sufficient age and
discretion in the same place as the
defendant or some competent person in
charge of his office or regular place of
business (Sabio, Jr., 339 SCRA 243 [2000];
Hamilton vs. Levy, G.R. No. 139283,
November 15, 2000). (Riano, p. 427 , 2005
ed.)
5. CONSTRUCTIVE SERVICE (BY PUBLICATION)
Q: Is leave of court required in constructive service
of summons?
A: This service always requires permission of the
court.
Q: What is the effect of voluntary appearance
before the court? Explain.
A:
GR: The defe da t s olu ta appea a e shall
be equivalent to service of summons and the
o se ue t su issio of o e s pe so to the
jurisdiction of the court (Sec. 20, Rule 14).
40
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
a. SERVICE UPON A DEFENDANT WHERE HIS
IDENTITY IS UNKNOWN OR WHERE HIS
WHEREABOUTS ARE UNKNOWN
b. SERVICE UPON RESIDENTS TEMPORARILY
OUTSIDE THE PHILIPPINES
Q: When is constructive service of summons
proper?
A:
1.
2.
Service upon a defendant where his
identity is unknown or where his
whereabouts are unknown. When the
defendant is designated as an unknown
and cannot be ascertained by diligent
inquiry, Sec. 14, Rule 14 allows service of
summons by publication in a newspaper
of general circulation and in such places
and for such time as the court may
order. (Riano, p. 432 , 2005 ed.)
Service upon residents temporarily
outside the Philippines. When any action
is commenced against a defendant who
ordinarily resides within the Philippines,
but who is temporarily out of it, service
may, by leave of court, be also effected
out of the Philippines (Sec. 16, Rule 14).
6. EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED
Q: When is extra-territorial service of summons
allowed?
by any other manner the court may deem
sufficient. (Riano, p. 439-440, 2005 ed.)
7. SERVICE UPON PRISONERS AND MINORS
Q: How is service of summons upon prisoner
made?
A: Service shall be effected upon him by the officer
having the management of such jail or institution
who is deemed deputized as a special sheriff for
said purpose. (Sec. 9, Rule 14)
Q: How is service of summons upon minors made?
A: Service shall be made upon him personally and
on his legal guardian if he has one, or if none, upon
his guardian ad litem whose appointment shall be
applied for by the plaintiff. In the case of a minor,
service may also be made on his father or mother.
(Sec. 10, Rule 14)
8. PROOF OF SERVICE
Q: How is proof of service done?
A: It shall be made in writing by the server and shall
set forth the manner, place, and date of service;
shall specify any papers which have been served
with the same; and shall be sworn to when made by
a person other than a sheriff or his deputy (Sec 18,
Rule 14).
Q: How is proof of service by publication done?
A: The defendant must be a non-resident defendant
who is at the same time not found in the Philippines
at the time summons is to be served. In addition,
the action commenced against him must be any of
the following:
1.
2.
3.
4.
An action that affects the personal status
of the plaintiff;
An action that relates to, or the subject of
which is the property within the
Philippines in which the defendant has or
claims a lien or interest, actual or
contingent;
An action in which the relief demanded
consists, wholly or in part, in excluding
the defendant from any interest therein;
An action where the property of the
defendant has been attached in the
Philippines.
A: It is done through the following:
1. Affidavit of the printer, his foreman or
principal clerk, business or advertising
manager, to which affidavit 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 (Sec. 19, Rule 14).
G. MOTIONS
1. MOTIONS IN GENERAL
a. DEFINITION OF A MOTION
Q: What is a motion?
A: It is an application for relief other than by a
pleading. (Sec. 1, Rule 15)
Note: In any of the above instances,
extraterritorial service is permissible with
leave of court and may be effected by
personal service, summons by publication or
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
41
UST GOLDEN NOTES 2011
b. MOTIONS VERSUS PLEADINGS
Q: What is the rule on hearing of motions?
Q: Distinguish a motion from a pleading.
A:
GR: Every written motion shall be set for
hearing by the applicant.
XPN: Motions which the court may act upon
without prejudicing the rights of the adverse
party (Sec. 4, Rule 15).
A: A pleading is a written statement of the
respective claims and defenses of the parties
submitted to the court for appropriate
judgment (Sec. 1, Rule 6). It may be in the form of a
complaint, counterclaim, cross-claim, third-party
complaint, or complaint-in-intervention, answer or
reply (Sec. 2, Rule 6).
A motion on the other hand is an application for
relief other than a pleading(Sec. 1, Rule 15).
e. OMNIBUS MOTION RULE
Q: What is the Omnibus Motion Rule?
A:
c. CONTENTS AND FORMS OF MOTIONS
Q: Should a motion be in writing?
A:
GR: All available grounds for objection in
attacking a pleading, order, judgment, or
proceeding should be invoked at one time;
otherwise, they shall be deemed waived (Sec. 8,
Rule 15).
GR: Yes.
XPN: Those made in open court or in the course
of hearing or trial (Sec. 2, Rule 15).
Q: What are the contents of a motion?
A: The contents of a motion are:
1. the relief sought to be obtained;
2. the ground upon which it is based; and
3. if required by the Rules or necessary to
prove facts alleged therein, shall be
accompanied by supporting affidavits and
other papers. (Sec. 3, Rule 15)
Q: May a motion pray for judgment?
A:
GR: No.
XPN: Motion for:
1. judgment on the pleadings;
2. summary judgment; or
3. Judgment on demurrer to evidence.
d. NOTICE OF HEARING AND HEARING OF
MOTIONS
XPN: The court may dismiss the case motu
proprio based on:
1. Lack of jurisdiction over the subject
matter;
2. Litis pendentia;
3. Res judicata; and
4. Barred by statute of limitations (Sec. 1,
Rule 9)
f. LITIGATED AND EX-PARTE MOTIONS
Q: What is a litigated motion?
A: It is a motion which affects the substantial rights
of the parties. A hearing is required.
Q: What is an ex-parte motion?
A: It is taken or granted at the instance and for the
benefit of one party, and without notice to or
contestation by any party adversely affected
(Regalado, Remedial Law Compendium, p. 264,
2009 ed.)
g. PRO-FORMA MOTIONS
Q: What shall the notice of hearing specify?
Q: What is a pro-forma motion?
A: It shall specify the time and date of the hearing
which shall not be later than ten (10) days after the
filing of the motion and it shall be addressed to the
parties concerned (Sec. 5, Rule 15).
A: It is that which does not comply with the rules on
motion and is considered as one filed merely to
delay the proceedings (Marikina Development
Corp., v. Flojo, G.R. No. 110801, Dec. 8, 1995).
Note: Failure to comply with the mandatory
requirements of the rule regarding notice of hearing is
pro forma and presents no question which merits the
attention of the court (Bacelonia v. CA, G.R. No.
143440, Feb. 11, 2003).
42
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
2. MOTIONS FOR BILL OF PARTICULARS
2.
a. PURPOSE AND WHEN APPLIED FOR
3.
Q: What is a bill of particulars and when can it be
availed of?
A: Before responding to a pleading, a party may
move for a definite statement or for a bill of
particulars of any matter which is not averred with
sufficient definiteness or particularity to enable him
properly to prepare his responsive pleading. If the
pleading is a reply, the motion must be filed within
10 days from service thereof (Sec. 1, Rule12). (2003
Bar Question)
Note: Its purpose is to aid in the preparation of a
responsive pleading. An action cannot be dismissed on
the ground that the complaint is vague or definite.
(Galeon v. Galeon, G.R. No. L-30380, Feb. 28, 1973).
b. ACTIONS OF THE COURT
Q: What are the actions taken by the court
regarding the motion for bill of particulars?
A: The court may either:
1. Deny it;
2. Grant it outright; or
3. Allow the parties the opportunity to be heard
(Sec. 2, Rule 12).
c. COMPLIANCE WITH THE ORDER AND EFFECT OF
NON-COMPLIANCE
Q: When must be the compliance be effected?
A: If the motion is granted, either in whole or in
part, it must be effected within ten (10) days from
notice of the order, unless a different period is fixed
by the court (Sec. 3, Rule 12).
Note: Bill of particulars may be filed either on a
separate or in an amended pleading, serving a copy
thereof on the adverse party.
Q: What is the effect of non-compliance with the
order of a bill of particulars?
Note: If the plaintiff failed to comply with the period,
the court upon motion of the defendant may strike out
the paragraph where ambiguity lies. If the entire
complaint is ambiguous, such is striken out and there
is no more case.
d. EFFECT ON THE PERIOD TO FILE A RESPONSIVE
PLEADING
Q: What is the effect of a motion for bill of
particulars on the period to file a responsive
pleading?
A: After service of the bill of particulars or of a more
definite pleading, or after notice of denial of his
motion, the moving party may file his responsive
pleading within the period to which he was entitled
at the time of filing his motion, which shall not be
less than five (5) days in any event (Sec. 5, Rule12).
Q: Within the period for filing a responsive
pleading, the defendant filed a motion for bill of
particulars that he set for hearing on a certain
date. However, the defendant was surprised to
find on the date set for hearing that the trial court
had already denied the motion on the day of its
filing, stating that the allegations of the complaint
were sufficiently made.
1. Did the judge gravely abuse his
discretion in acting on the motion
without waiting for the hearing set for
the motion?
2. If the judge grants the motion and orders
the plaintiff to file and serve the bill of
particulars, can the trial judge dismiss
the case if the plaintiff does not comply
with the order?
A:
1.
A:
1.
If the order is not obeyed or in case of
insufficient compliance therewith, the
court:
a. May order the striking out of the
pleading or the portion thereof to
which the order is directed; or
b. Make such order as it may deem just
(Sec. 4, Rule 12)
If plaintiff, his compliant will be stricken
off and dismissed (Sec. 3, Rule 17)
If defendant, his answer will be stricken
off and his counterclaim dismissed, and
he will be declared in default upon
motion of the plaintiff (Sec. 4, Rule 17;
Sec. 3, Rule 9).
2.
No. Sec. 2, Rule 12 authorizes the court to
either deny or grant said motion outright
or allow the parties an opportunity to be
heard. The court is not mandated to
conduct a hearing.
Yes. Sec. 4, Rule 12 authorizes the court
to order the striking out of the pleading
affected, hence the dismissal of the
complaint. To the same end is the
provision of Sec. 3, Rule 17 when the
plaintiff fails to comply for no justifiable
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
43
UST GOLDEN NOTES 2011
cause with any order of the court or with
the Rules. (2008 Bar Question)
8.
That the claim or demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
9.
That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds;
3. MOTION TO DISMISS
a. GROUNDS
Q: What are the grounds for a motion to dismiss
under Rule 16?
10. That a condition precedent for filing the
claim has not been complied with.(Sec. 1,
Rule 16)
A:
1.
That the court has no jurisdiction over the
person of the defending party;
2.
That the court has no jurisdiction over the
subject matter of the claim;
3.
That venue is improperly laid;
4.
That the plaintiff has no legal capacity to
sue;
Note: The issue of the plai tiff s la k of legal
capacity to sue cannot be raised for the first
time on appeal where the defendant dealt
with the former as a party in the
proceeding.
5.
That there is another action pending
between the same parties for the same
cause;
Note: Litis pendentia requires concurrence
of the following requisites:
a. Identity of the parties
b. Identity of rights asserted and reliefs
prayed for, being founded on the same
facts
c. Identity with respect to the two
preceding particulars, such that any
judgment that may be rendered in the
pending case would amount to red
adjudicate in the other case. (Lim vs.
Vianzon, G.R. No. 137187, Aug.3, 2006)
6.
That the cause of action is barred by a
prior judgment or by the statute of
limitations;
Note: The requisites of res judicata include:
The former judgment must be final
a. The court which rendered it has
jurisdiction over the subject matter
and the parties
b. Judgment must be on the merits
c. There must be identity of parties,
subject matter and causes of action
7.
That the pleading asserting the claim
states no cause of action;
Note: Curable by amendment
44
Note: Not jurisdictional in nature, hence,
deemed waived if not raised.
b. RESOLUTION OF MOTION
Q: What are the three courses of action which the
trial court may take in resolving a motion to
dismiss?
A:
1.
2.
3.
Dismiss the action or claims;
Deny the motion; or
Order the amendment of the pleading
(Sec. 3, Rule 16).
Note: The court shall not defer the resolution of the
motion for the reason that the ground relied upon is
not indubitable. In every case, the resolution shall
state clearly and distinctly the reasons therefor (Sec. 3,
Rule16).
c. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT
IS DISMISSED
Q: What are the remedies of the plaintiff when the
complaint is dismissed?
A: If the dismissal is without prejudice, the plaintiff
may re-file the complaint. If the dismissal is with
prejudice, the plaintiff may file an appeal. (Riano,
Civil Procedure: A Restatement for the Bar, p. 319-320,
2009 ed.)
d. REMEDIES OF THE DEFENDANT WHEN THE
MOTION IS DENIED
Q: What are the remedies of the defendant when
the motion is denied?
A: File an answer and proceed with the trial. If
decision is adverse, appeal therefrom and raise as
error the denial of the motion to dismiss. If there is
grave abuse of discretion amounting to lack or
excess of jurisdiction, certiorari or prohibition may
lie under Rule 65. If there is unlawful neglect of the
performance of an act which the law specifically
enjoins, mandamus is the proper remedy. (Riano,
Civil Procedure: A Restatement for the Bar, p. 319,
2009 ed.)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
e. EFFECT OF DISMISSAL OF COMPLAINT ON
CERTAIN GROUNDS
Q: What is the effect of dismissal on the following
grounds:
1. Cause of action is barred by prior judgment or
by the statute of limitations;
2. Claim or demand has been paid, waived,
abandoned, or otherwise extinguished; and
3. Claim is unenforceable under the statute of
frauds?
A: Dismissal is with prejudice and constitutes res
judicata. The language of the rule, particularly on
the elatio of the
o ds a a do ed a d
othe ise e ti guished to the ph ase lai o
de a d dee ed set fo th i the plai tiff s
pleadi g is oad e ough to i lude ithi its
ambit the defense of bar by laches. However, the
trial court must set a hearing on the motion where
the parties shall submit not only their arguments on
the questions of law but also their evidence on the
questions of fact involved (Pineda v. Heirs of Eliseo
Guevarra, G.R. No. 168557, Feb. 19, 2007).
f. WHEN THE GROUNDS PLEADED AS AFFIRMATIVE
DEFENSES
Q: When can the grounds for motion to dismiss be
pleaded as affirmative defense?
A: If no motion to dismiss has been filed, any of the
grounds for dismissal provided for in the Rules may
be pleaded as an affirmative defense in the answer
and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to
dismiss had been filed.
The dismissal of the complaint shall be without
prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the
answer. (Sec. 6, Rule 16)
g. BAR BY DISMISSAL
Q: What are the grounds for dismissal that may
bar the refiling of the same action or claim?
A:
1.
2.
3.
4.
Res judicata;
Prescription;
Extinguishment of the claim or demand;
and
Unenforceability under the State of
Frauds. (Sec. 5, Rule 16)
h. DISTINGUISH FROM DEMURRER TO EVIDENCE
UNDER RULE 33
Q: Distinguish motion to dismiss under Rule 16
from motion to dismiss under Rule 33.
A:
Rule 16 (Motion to
Dismiss)
Grounded
on
preliminary objections
May be filed by any
defending
party
against whom a claim
is asserted in the
action
Should be filed within
the time for but prior
to the filing of the
answer
If denied, defendant
answers, or else he
may be declared in
default.
If granted, plaintiff
may appeal or if
subsequent case is not
barred, he may re-file
the case
Rule 33 (Demurrer to
Evidence)
Based on insufficiency of
evidence
May be filed only by the
defendant
against
the
complaint of the plaintiff
May be filed only after the
plaintiff has completed the
presentation of his evidence
(Regalado, Remedial Law,
Compendium Vol. I, p. 267,
2005 ed.)
If denied, defendant may
present
evidence.
If granted, but on appeal
the order of dismissal is
reversed, the defendant
loses his right to present
evidence
(Riano,
Civil
Procedure: A Restatement
for the Bar, p. 399, 2009 ed.)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
45
UST GOLDEN NOTES 2011
H. DISMISSAL OF ACTIONS
1. DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE
2. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM
3. DISMISSAL DUE TO THE FAULT OF PLAINTIFF
Q: Distinguish the different types of dismissal under Rule 17.
A:
Dismissal upon notice by plaintiff (Sec. 1,
Rule 17)
A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at
any time before service of the answer or
of a motion for summary judgment.
Upon such notice being filed, the court
shall issue an order confirming the
dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice,
except that a notice operates as
adjudication upon the merits when filed
by a plaintiff who has once dismissed in a
competent court an action based on or
including the same claim.
It is a matter of right.
GR: A dismissal without prejudice i.e. the
complaint can be re-filed
XPNs:
1. The notice of dismissal by the
plaintiff provides that the dismissal is
with prejudice; or
2. The plaintiff has once dismissed in a
competent court an action based on
or including the same claim (Twodismissal rule) (Sec. 1, Rule 17)
3. Even where the notice of dismissal
does not provide that it is with
prejudice but it is premised on the
fact of payment by the defendant of
the claim involved (Serrano v.
Cabrera, G.R. No. L-5189, Sept. 21,
1953)
Since there is no answer yet filed by the
adverse party, no counterclaim
recoverable
Dismissal upon motion of plaintiff
(Sec. 2, Rule 17)
After service of the answer or a motion
for summary judgment by the adverse
party.
Dismissal due to fault of
plaintiff (Sec. 3, Rule 17)
1. If, for no justifiable cause,
the plaintiff fails to appear
on the date of the presentation of his evidence in
chief on the complaint.
2. If the plaintiff fails to
prosecute his action for an
unreason-nable length of
time (nolle prosequi).
3. If the plaintiff fails to
comply with the Rules or
any order of the court.
Matter of discretion upon the court. A
complaint shall not be dismissed at the
plaintiff's instance save upon approval
of the court and upon such terms and
conditions as the court deems proper
(Sec. 2, Rule 17).
Matter of evidence.
GR: It is a dismissal without prejudice,
GR: Dismissal is with prejudice
because it has an effect of an
adjudication on the merits.
XPN: Unless otherwise declared
by the court (Sec. 3, Rule 17)
XPN: If the order of dismissal specifies
that it is with prejudice (Sec. 2, Rule 17)
Note: A class suit shall not be dismissed
or compromised without the approval of
the court.
If a counterclaim has been pleaded by a
defendant prior to the service upon him
of the plaintiff's motion for dismissal, the
dismissal shall be limited to the
complaint.
GR: It is also without prejudice to the
right of defendant to prosecute his
counterclaim in a separate action.
XPN: 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).
Dismissal upon motion of the
defendant or upon the court's
own motion is without
prejudice to the right of the
defendant to prosecute his
counterclaim on the same or
separate action
Note: The plai tiff s failu e to appea at the t ial afte he has p ese ted his e ide e a d ested his ase does not
warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine
and to object to the admissibility of evidence (Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977). The provision of this
rule shall also apply to the dismissal of any counterclaim, cross-claim, or third-party complaint (Sec. 4, Rule17).
46
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: When does the two-dismissal rule apply?
A: It applies when the plaintiff has:
1. Twice dismissed the actions;
2. Based on or including the same claim; and
3. In a court of competent jurisdiction
(Riano, Civil Procedure: A Restatement for
the Bar, p. 265, 2009 ed.)
Note: The second notice of dismissal will bar the refiling of the action because it will operate as an
adjudication of the claim upon the merits. In other
words, the claim may only be filed twice, the first
being the claim embodied in the original complaint.
(Riano, Civil Procedure: A Restatement for the Bar, p.
265, 2009 ed.)
4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM
OR THIRD-PARTY COMPLAINT
Q: What is the effect of dismissal upon a
counterclaim, which was already pleaded?
A:
1.
2.
3.
If a counterclaim has already been
pleaded by the defendant prior to the
se i e upo hi of the plai tiff s otio
to dismiss, and the court grants the said
motion to dismiss, the dismissal shall be
limited to the complaint.
The defendant if he so desires may
prosecute his counterclaim either in a
separate action or in the same action.
Should he choose to have his
counterclaim resolved in the same action,
he must notify the court of his preference
within fifteen (15) days from notice of the
plai tiff s otio to dis iss.
The dismissal of the complaint does not
carry with it the dismissal of the
counterclaim. (Riano, Civil Procedure: A
Restatement for the Bar, pp. 266-267,
2009 ed.)
Q: What rule governs the dismissal of
counterclaim,
cross-claim,
or
third-party
complaint?
A: The rule on the dismissal of a complaint applies
to the dismissal of any counterclaim, cross-claim, or
third-party claim. A voluntary dismissal by the
claimant alone by notice pursuant to Sec. 1, Rule 17
shall be made before a responsive pleading or a
motion for summary judgment is served or, if there
is none, before the introduction of evidence at the
trial or hearing (Sec. 4, Rule 17).
I. PRE-TRIAL
1. CONCEPT OF PRE-TRIAL
Q: What is pre-trial?
A: It is a procedural device by which the court is
called upon, after the filing of the last pleading, to
compel the parties and their lawyers to appear
before it, and negotiate an amicable settlement or
otherwise make a formal statement and embody in
a single document the issues of fact and law
involved in the action, and such other matters as
may aid in the prompt disposition of the action
(Herrera, Vol. I, p. 1074, 2007 ed.).
Q: When is pre-trial conducted?
A: After the last pleading has been served and filed,
it shall be the duty of the plaintiff to promptly move
ex parte that the case be set for pre-trial. (Sec.1,
Rule 18)
2. NATURE AND PURPOSE
Q: What is the nature of pre-trial?
A: It is mandatory (Sec. 2, Rule 18).
Q: What are the purposes of pre-trial?
A: The court shall consider the following purposes:
1. Possibility of an amicable settlement or of
a submission to alternative modes of
dispute resolution;
2. Simplification of the issues;
3. Necessity or desirability of amendments
to the pleadings;
4. Possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
5. Limitation of the number of witnesses;
6. Advisability of a preliminary reference of
issues to a commissioner;
7. Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid
ground therefore be found to exist;
8. Advisability or necessity of suspending
the proceedings; and
9. Such other matters as may aid in the
prompt disposition of the action. (Sec. 2,
Rule 18)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
47
UST GOLDEN NOTES 2011
5.
3. NOTICE OF PRE-TRIAL
Q: To whom shall notice of pre-trial be served?
6.
A: It shall be served on counsel, or on the party who
has no counsel. The counsel served with such notice
is charged with the duty of notifying the party
represented by him (Sec. 3, Rule 18).
4. APPEARANCE OF PARTIES; EFFECT OF FAILURE
TO APPEAR
Q: Who has the duty to appear at the pre-trial?
A: The parties and their counsel.
Q: What is the effe t of a pa t ’s failu e to appea
during the pre-trial?
A: Plai tiff’s failure to appear during the pre-trial
shall be a cause for dismissal of the action, with
prejudice, unless otherwise ordered by the
court. Defe da t’s non-attendance during the pretrial shall be a cause to allow the plaintiff to present
evidence ex parte and the court to render judgment
on the basis thereof (Sec. 5, Rule 18). (1992 Bar
Question)
Note: The non-appearance of a party may be excused
only if a valid cause is shown therefore or if a
representative shall appear in his behalf fully
authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions
of facts and of documents. (Sec.4, Rule 18)
A manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners; and
The number and names of the witnesses,
and the substance of their respective
testimonies and the approximate number
of hours that will be required by the
parties for the presentation of their
respective witnesses (Sec. 6, Rule 18).
Q: What is the effect of failure to file a pre-trial
brief?
A: It shall have the same effect as failure to appear
at the pre-trial (A.M. No. 03-1-09-SC, July 13, 2004).
6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE
AND PRE-TRIAL IN CRIMINAL CASE
Q: Distinguish pre-trial in civil cases from pre-trial
in criminal cases.
A:
Pre-trial in civil case
It is set when the plaintiff
moves ex parte to set the
case for pre-trial (Sec. 1,
Rule 18)
The motion to set the
case for pre-trial is made
after the last pleading
has been served and filed
(Sec. 1, Rule 18)
5. PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE
Q: When should the parties file with the court and
serve on the adverse party their pre-trial briefs?
A: They shall file their respective pre-trial briefs in
such a manner as shall ensure their receipt thereof
at least three (3) days before the date of the pretrial (Sec. 6, Rule 18).
Q: What should a pre-trial brief contain?
A:
1.
2.
3.
4.
48
A statement of their willingness to enter
into amicable settlement or alternative
modes of dispute resolution, indicating
the desired terms thereof;
A summary of admitted facts and
proposed stipulation of facts;
The issues to be tried or resolved;
The documents or exhibits to be
presented, stating the purpose thereof;
It considers the
possibility of an amicable
settlement as an
important objective.
Requires the proceeding
during the preliminary
conference to be
e o ded i the i utes
of preliminary
o fe e e to e sig ed
by both parties and/or
counsel. The rule allows
either the party or his
counsel to sign the
minutes (A.M. No. 03-109-SC).
Sanctions for nonappearance in a pre-trial
are imposed upon the
plaintiff and the
Pre-trial in criminal case
It is ordered by the court
and no motion to set the
case for pre-trial is
required from either the
prosecution or the
defense
The pre-trial is ordered by
the court after
arraignment and within
thirty (30) days from the
date the court acquires
jurisdiction over the
person of the accused.
It does not include the
possibility of amicable
settlement of criminal
liability as one of its
purposes (Sec. 1, Rule
118).
All agreements or
admissions made or
entered during the pretrial conference shall be
reduced in writing and
signed by both the
accused and counsel,
otherwise, they cannot be
used against the accused
(Sec. 2, Rule 18)
The sanctions in a
criminal case are imposed
upon the counsel for the
accused or the prosecutor
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
defendant in a civil case
(Sec. 4, Rule 18).
(Sec. 3, Rule 18)
Specifically required to
be submitted in a civil
case (Sec. 6, Rule 18)
Not specifically required
in a criminal case.
7. ALTERNATIVE DISPUTE RESOLUTION (ADR)
Q: What are the other modes of solving disputes?
A:
1.
Alternative Dispute Resolution (ADR)
a. Arbitration
i. Domestic Arbitration
ii.
iii.
2.
3.
4.
5.
6.
7.
Construction Disputes
International
Commercial
Arbitration
b. Mediation
c. Conciliation
d. Early Neutral Evaluation
e. Mini-trial
Court-Annexed Mediation
Appellate Court Mediation
Judicial Dispute Resolution
Katarungang Pambarangay Law
Small Claims Cases
Rules on Summary Procedure
Q: Distinguish the other modes of solving disputes.
A:
ADR
1.
2.
To actively promote party
autonomy in the resolution
of disputes or the freedom
of the parties to make their
own arrangements to
resolve their disputes.
To achieve speedy and
impartial justice and unclog
court dockets.
Subject to the terms of the
contract or the submission
agreement,
the
arbitrators
selected must, within 5 days
from notice of appointment, if
the parties to the controversy
reside within the same city or
province, or within 15 days after
appointment if the parties reside
in different provinces, set a time
and place for the hearing of the
matters submitted to them. (Sec.
12, R.A. 876)
Court-Annexed Mediation/Judicial Dispute
Resolution (A.M. No, 11-1-6-SC-PHILJA)
Purpose / Object
The pu poses of CAM a d JD‘ is to put an
end to pending litigation through
compromise agreement of the parties and
thereby help solve the ever-pressing
p o le of ou t do ket o gestio . It is
also i te ded to e po e the pa ties to
resolve their own disputes and give
practical effect to the State Policy expressly
stated in the ADR Act of 2004 (R.A. No.
2 5
Where to File
Court acquiring jurisdiction of the case
since mediation is part of the mandatory
pre-trial
Appellate Court Mediation
1.
2.
After mediation has failed in
the lower courts, Appellate
Court Mediation provides an
added option to put an end to
costly and long-drawn
litigation.
It facilitates the interest-based
settlement of the dispute
through proposals coming from
the parties or suggested by the
mediator and accepted by the
parties.
Court of Appeals
Note: Court-annexed mediation should be
distinguished from court-referred mediation.
The fo e is o du ted u de the ou t s
auspices after such court has acquired
jurisdiction of the dispute while the latter is
mediation ordered by the court to be
conducted in accordance with the parties
agreement when an action is prematurely
commenced in violation of such agreement.
The fi st stage is the CAM
he e the judge
refers the parties to the Philippine Mediation
Center (PMC) for the mediation of their
dispute by trained and accredited mediato s .
Upon failing to secure a settlement of the
dispute du i g the fi st stage, a se o d
atte pt is ade at the JD‘ stage , he e the
JD‘ judge e o es a
ediato -conciliatorearly neutral evaluator in a continuing effort
to se u e a settle e t
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
49
UST GOLDEN NOTES 2011
Any dispute or controversy
which may thereafter arise
between parties to a contract
pursuant to an arbitration clause
or any controversy or dispute
wherein the parties agree to
submit to an alternative dispute
resolution system
1.
2.
3.
4.
5.
6.
7.
8.
9.
50
Labor disputes under the
Labor Code
Civil status of persons
Validity of a marriage
Any ground for legal
separation
Jurisdiction of courts
Future legitime
Criminal liability
Those which by law
cannot be compromised
Dispute resolution
services provided by
Cases Covered
1. All civil cases and the civil liability of
criminal cases covered by the Rule on
Summary Procedure, including the civil
liability for violation of B.P. 22, except
those which by law may not be
compromised;
2. Special
proceedings
for
the
settlement of estates;
3. All civil and criminal cases filed with a
certificate to file action issued by
the Punong Barangay or the Pangkat ng
Tagapagkasundo under
the
Revised Katarungang Pambarangay Law
4. The civil aspect of Quasi-Offenses
under Title 14 of the Revised Penal Code;
5. The civil aspect of less grave felonies
punishable by correctional penalties not
exceeding 6 years imprisonment, where
the offended party is a private person;
6. The civil aspect of estafa, theft and
libel;
7. All civil cases and probate
proceedings, testate and intestate,
brought on appeal from the exclusive and
original jurisdiction granted to the first
level courts under Section 33, par. (1) of
the Judiciary Reorganization Act of 1980;
8. All cases of forcible entry and
unlawful detainer brought on appeal
from the exclusive and original
jurisdiction granted to the first level
courts under Section 33, par. (2) of the
Judiciary Reorganization Act of 1980;
9. All civil cases involving title to or
possession of real property or an interest
therein brought on appeal from the
exclusive and original jurisdiction granted
to the first level courts under Section 33,
par.(3) of the Judiciary Reorganization Act
of 1980; 13 and
10. All habeas corpus cases decided by
the first level courts in the absence of the
Regional Trial Court judge, that are
brought up on appeal from the special
jurisdiction granted to the first level
courts under Section 35 of the Judiciary
‘eo ga izatio A t of
.
Cases Excluded
1. Civil cases which by law cannot be
compromised (Article 2035, New Civil
Code);
1.
2.
3.
4.
Civil cases brought on ordinary
appeal or petition for review.
Appeals from final orders,
awards, judgments, resolutions
of the Court of Tax Appeals and
quasi-judicial agencies in the
exercise of their quasi-judicial
functions through petition for
review or certiorari that
questions a decision for having
been rendered in grave abuse
of discretion amounting to lack
of jurisdiction.
Special civil actions for
certiorari,
except
those
involving pure questions of
law.
Habeas corpus (court order
directing law enforcement
officials or custodians of
detained persons to produce
that person in court) cases
involving custody of minors,
with the consent of the parties,
provided that the minor is not
detained for commission of a
criminal offense.
Criminal cases cognizable by
the Katarungang Pambarangay
(Barangay Justice System)
under R.A. 7160 or offenses
punishable by imprisonment
not exceeding one year or a
fine not exceeding P5,000 or
both
such
fine
and
imprisonment.
1.
Civil cases, which by law cannot
be compromised.
2.
Criminal cases except those
which involve habeas corpus of
minors not detained for a
criminal offense.
3.
Habeas corpus petitions
involving custody of minors
when the subject is detained
for commission of a criminal
offense.
2. Other criminal cases not covered under
paragraphs 3 to 6 above;
3. Habeas Corpus petitions;
4. All cases under Republic Act No. 9262
(Violence against Women and Children);
and
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
government agencies
where mediators or
arbitrators are selected by
government agencies:
a. Mining Act;
b. Consumer Act; or
c. HLURB Resolution
No. R-586
5. Cases with pending application for
Restraining Orders/Preliminary Injunctions.
4.
Cases with pending application
for restraining
orders/preliminary injunctions,
unless both parties request for
mediation
Note: The table for Katarungang Pambarangay Law, Small Claims Cases and Rules on Summary Procedure are found on
p.17
Q: Distinguish the different kinds of the ADR system.
A:
Arbitration
Mediation
Conciliation
It is a voluntary
dispute
resolution
process in which one
or more arbitrators,
appointed
in
accordance with the
agreement of the
parties, or rules
promulgated
pursuant to R.A.
9285,
resolve
a
dispute by rendering
an award. It results
in the adjudication of
a dispute.
It is a voluntary
process in which an
impartial and neutral
third
party
(mediator), selected
by the disputing
parties,
facilitates
communication and
negotiation,
and
assists the parties in
reaching a voluntary
agreement regarding
a dispute.
Definition
A process whereby
the parties request a
third
person
or
persons to assist
them in their attempt
to reach an amicable
settlement of their
dispute arising out of
or relating to a
contractual or other
legal relationship (Art.
1 [3],
UNCITRAL
Model
Law
on
Conciliation)
Arbitrator acts as
out-of-court judge
and
settles
the
dispute
extrajudicially.
Mediator does not
render an award but
only arranges the
facts
to
be
negotiated so that
parties can come to
a
compromise
agreement.
He assists the parties
in
reaching
a
mutually agreeable
settlement of their
dispute
through
direct negotiations.
He
actively
participates
in
resolving
the
dispute, and then
gives an opinion.
He
makes
a
determination of the
facts and applies the
law to those facts to
resolve a dispute
independently of the
actual result desired
by the parties.
The award may be
final and binding if so
agreed
by
the
parties.
To
be
executory, it must
first be confirmed by
The decision or
opinion
is
not
binding
on
the
parties.
It
is
recommendatory in
nature. The mediator
Functions
A
conciliator
participates only in
the preliminary steps
of
facilitating
discussion between
the parties and helps
them
frame
the
issues for discussion.
Effect of decision
He does not render a
decision. The dispute
is left to be settled by
the
parties
themselves.
Early Neutral
Evaluation
Mini-Trial
It is a process
wherein parties and
their lawyers are
brought together
early in a pre-trial
phase to present
summaries of their
cases and receive a
non-binding
assessment by an
experienced,
neutral
person,
with expertise in
the subject or the
substance of the
dispute.
It is a structured
dispute
resolution
method in which the
merits of a case are
argued before a
panel comprising of
senior
decision
makers
with
or
without the presence
of a neutral third
person after which
the parties seek a
negotiated
settlement.
Early
neutral
Evaluator assesses
or reviews the
issues submitted by
the parties and
tenders
its
evaluation which is
non-binding.
Panel renders a
decision based on
the merits of the
arguments of the
parties.
The assessment is
not binding upon
the parties.
It need not be
confirmed by the
courts.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
51
UST GOLDEN NOTES 2011
the RTC.
merely suggests a
solution
to
the
dispute.
Q: What is the State policy in alternative dispute
resolution?
A: The state policy in ADR is to actively promote
party autonomy in the resolution of disputes or the
freedom of the parties to make their own
arrangements in resolving their disputes.
functions in any ADR system. An ADR practitioner
refers to individuals acting as mediator, conciliator,
arbitrator or neutral evaluator. (Sec.3[b] of R.A. No.
9285)
J. INTERVENTION
Q: What is intervention?
Q: What is the Constitutional basis of alternative
dispute resolution?
A: The State shall promote the principle of shared
responsibility between workers and employers and
the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster
industrial peace. (Par. 2, Sec. 3, Art. XIII, 1987
Constitution)
Q: What is the legal basis of alternative dispute
resolution?
A: The legal asis ould e, the o t a ti g pa ties
may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs,
pu li o de , o pu li poli . (Art. 1306, NCC)
Q: What is an alternative dispute resolution
system?
A: It means any process or procedure used to
resolve a dispute or controversy, other than by
adjudication of a presiding judge of a court or an
officer of a government agency in which a neutral
third party participates to assist in the resolution of
issues, which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial, or
any combination thereof. (Sec.3[a] of R.A. No. 9285)
A: It is a legal proceeding by which a third person is
permitted by the court to become a party by
intervening in a pending action after meeting the
conditions and requirement set by the Rules of
Court. This person who intervenes is one who is not
originally impleaded in the action (First Philippine
Holdings Corp. v. Sandiganbayan, G.R. No. 88345,
Feb. 1, 1996)
Note: Right to intervene is not an absolute right as it
can be secured only in accordance with the terms of
the applicable statute or rule. Riano, Civil Procedure: A
Restatement for the Bar, p. 345, 2009 ed.)
1. REQUISITES FOR INTERVENTION
Q: What are the requisites for intervention?
A:
1.
Note: A motion is necessary because leave
of court is required before a person may be
allowed to intervene.
2.
Note: Its purposes are to:
1. Actively promote party autonomy in the
resolution of disputes or the freedom of the
parties to make their own arrangements to
resolve their disputes;
2. Achieve speedy and impartial justice; and
3. Unclog court dockets.
3.
Q: Distinguish alternative dispute resolution
provider from an alternative dispute resolution
practitioner.
A: An ADR provider means institutions or persons
accredited as mediator, conciliator, arbitrator,
neutral evaluator, or any person exercising similar
52
There must be a motion for intervention
filed before rendition of judgment by the
trial court (Sec. 1, Rule 19);
4.
The movant must show in his motion that
he has:
a. Legal interest in the matter in
controversy;
b. Legal interest in the success of either
of the parties;
c. Legal interest against both parties; or
d. So situated as to be adversely
affected by a distribution or other
disposition of the property in the
custody of the court or of an officer
thereof (Sec. 1, Rule 19);
Intervention will not unduly delay or
prejudice the adjudication of the rights of
original parties; and
I te e o s ights
a
ot e full
protected in a separate proceeding
(Mabayo Farms, Inc. vs. CA, GR 140058,
Aug. 1, 2002).
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: Is intervention an independent proceeding?
Q: May intervention be allowed after judgment
has been rendered by the court?
A:
GR: No. It is not an independent proceeding
but is ancillary and supplemental to an existing
litigation. Hence, the final dismissal of the
principal action results into the dismissal of said
ancillary action.
A:
GR: After rendition of judgment, a motion to
intervene is barred, even if the judgment itself
recognizes the right of the movant. The motion
to intervene must be filed at any time before
rendition of judgment by the trial court (Sec. 2,
Rule 19).
XPN: When intervention has been allowed and
the complaint-in-intervention has already been
filed efo e plai tiff s a tio had ee e p essl
dismissed (Metrobank v. RTC-Manila, G.R. No.
89909, Sept. 21, 1990). (2000 Bar Question)
XPNs:
1. With respect to indispensable parties,
intervention may be allowed even on
appeal (Falcasantos v. Falcasantos, G.R.
No. L-4627, May 13, 1952);
2. When the intervenor is the Republic (Lim
v. Pacquing, G.R. No. 115044, Jan. 27,
1995);
3. Where necessary to protect some interest
which cannot otherwise be protected,
and for the purpose of preserving the
i te e o s ight to appeal (Pinlac v. CA,
G.R. No. 91486, Sept. 10, 2003); or
4. May be allowed during the pendency of
the appeal, where the interest of justice
so required (Tahanan Dev. Corp. v. CA,
G.R. No. L-55771, Nov. 15, 1982).
Q: What does legal interest mean?
A: It must be one that is actual and material, direct
and of an immediate character, not merely
contingent or expectant so that the intervenor will
either gain or lose by the direct legal operation of
the judgment. (Riano, Civil Procedure: A
Restatement for the Bar, p. 346, 2009 ed.)
2. TIME TO INTERVENE
Q: When is the time to intervene?
A: The motion to intervene may be filed any time
before rendition of judgment by the trial court. A
copy of the pleading-in-intervention shall be
attached to the motion and served on the original
parties. (Sec. 2, Rule 19)
Q: When shall the intervenor file a pleading-inintervention?
A:
1.
Q: What is the procedure for intervention?
2.
A:
1. The intervenor shall file a motion for
intervention attaching thereto his pleading-inintervention.
1. If the purpose is to assert a claim
against either or all of the original
parties – the pleading shall be called
a complaint-in-intervention.
2. If the pleading seek to unite with the
defending party in resisting a claim
against the latter – file an answer-inintervention. (Sec 3, Rule 19)
2. The motion and the pleading shall be
served upon the original parties.
3. The answer to the complaint-inintervention shall be filed within fifteen
(15) days from notice of the order
admitting the same, unless a different
period is fixed by the courts. (Sec.4, Rule
19)
He shall file a complaint-in-intervention if
he asserts a claim against either or all of
the original parties; or
An answer-in-intervention if he unites
with the defending party in resisting a
claim against the latter. (Sec. 3, Rule 19)
Q: When should an answer to complaint-inintervention be filed?
A: It shall be filed within fifteen (15) days from
notice of the order admitting the same, unless a
different period is fixed by the court (Sec. 4, Rule
19).
3. REMEDY FOR THE DENIAL OF MOTION TO
INTERVENE
Q: What is the remedy for the denial of motion to
intervention?
A: The remedy of the aggrieved party is appeal.
Mandamus will not lie except in case of grave abuse
of discretion.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
53
UST GOLDEN NOTES 2011
K. SUBPOENA
Q: What is the rule when application for subpoena
to a prisoner is made?
Q: What is a subpoena?
A: It is a process directed to a person requiring him
to attend and to testify at the hearing or the trial of
an action, or at any investigation conducted under
the laws of the Philippines, or for taking of his
deposition (Sec. 1, Rule 21).
1. SUBPOENA DUCES TECUM
A: The judge or officer shall examine and study
carefully such application to determine whether the
same is made for a valid purpose and no prisoner
sentenced to death, reclusion perpetua or life
imprisonment and is confined in prison shall be
brought outside the said penal institution for
appearance or attendance in any court unless
authorized by the SC (Sec. 2, Rule 21).
Q: What is subpoena duces tecum?
Q: What are the contents of subpoena?
A: A process directed to a person requiring him to
bring with him any books, documents, or things
under his control (Sec. 1, Rule 21).
A: It shall state the name of the court and the title
of the action or investigation, shall be directed to
the person whose attendance is required, and in
the case of a subpoena duces tecum, it shall also
contain a reasonable description of the books,
documents or things demanded which must appear
to the court prima facie relevant (Sec. 3).
2. SUBPOENA AD TESTIFICANDUM
Q: What is subpoena ad testificandum?
A: A process directed to a person requiring him to
attend and to testify at the hearing or trial of an
action or at any investigation conducted by
competent authority or for the taking of his
deposition (Sec. 1, Rule 21).
Q: Distinguish subpoena from summons.
A:
Subpoena
Summons
An order to appear and
testify or to produce books
and documents
May be served to a nonparty
Needs tender of
kilometrage, attendance fee
and reasonable cost of
production fee
Order to answer
complaint
Q: What is the rule on subpoena for depositions?
A: Proof of service of a notice to take a deposition,
as provided in Secs. 15 and 25, 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. The clerk shall not,
however, issue a subpoena duces tecum to any such
person without an order of the court (Sec. 5, Rule
21).
Q: How is service of subpoena made?
Served on the
defendant
Does not need tender
of kilometrage and
other fees
3. SERVICE OF SUBPOENA
A: It shall be made in the same manner as personal
or substituted service of summons (Sec. 6, Rule 21).
Note: Service of a subpoena shall be made by the
sheriff, by his deputy, or by any other person specially
authorized, who is not a party and is not less than
eighteen (18) years of age (Sec. 6, Rule 21).
Q: What should be delivered and tendered to the
person whom subpoena is served?
Q: Who issues subpoena?
A:
1.
2.
3.
4.
54
The court before whom the witness is
required to attend;
The court of the place where the
deposition is to be taken;
The officer or body authorized by law to
do so in connection with investigations
conducted by said officer or body; or
Any Justice of the SC or of the CA in any
case or investigation pending within the
Philippines. (Sec. 2, Rule 21)
A: The original shall be exhibited and a copy thereof
delivered to the person on whom it is served,
te de i g to hi the fees fo o e da s atte da e
and the kilometrage allowed by the Rules. If the
subpoena is duces tecum, the reasonable cost of
producing the books, documents or things
demanded shall also be tendered (Sec. 6, Rule 21).
Note: When a subpoena is issued by or on behalf of
the Republic of the Philippines or an officer or agency
thereof, the tender need not be made (Sec. 6, Rule 21).
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
when the subpoena was served (Sec. 4,
Rule 21).
Q: Why must service of subpoena be made?
A: The service must be made so as to allow the
witness a reasonable time for preparation and
travel to the place of attendance (Sec. 6, Rule 21).
L. MODES OF DISCOVERY
Q: What are the different modes of discovery?
4. COMPELLING ATTENDANCE OF WITNESSES;
CONTEMPT
A:
1.
2.
Q: What is the effect of failure to comply with
subpoena?
3.
4.
5.
A:
GR: The court or judge which issued the
subpoena may issue a warrant for the arrest of
the witness and make him pay the cost of such
warrant and seizure, if the court should
determine that his disobedience was willful and
without just cause. The refusal to obey a
subpoena without adequate cause shall be
deemed contempt of the court issuing it (Secs. 8
and 9, Rule 21).
XPNs:
1. Where the witness resides more than 100
km. from his residence to the place where
he is to testify by the ordinary course of
travel,
generally,
by
overland
transportation (viatory right); or
2. When the permission of the court in
hi h the dete tio p iso e s ase is
pending was not obtained (Sec. 10, Rule
21).
6.
Note: The modes of discovery are cumulative. They are
not alternative nor mutually exclusive.
Q: What are the basic purposes of the rules of
discovery?
A:
1.
2.
3.
5. QUASHING OF SUBPOENA
4.
Q: How to quash a subpoena?
A:
Subpoena duces tecum: Upon motion promptly
made and, in any event, at or before the time
specified therein:
1. If it is unreasonable and oppressive, or
2. The relevancy of the books, documents or
things does not appear, or
3. If the person is whose behalf the
subpoena is issued fails to advance the
reasonable cost of the production thereof
(Sec. 4, Rule 21).
4. That the witness fees and kilometrage
allowed by the Rules were not tendered
when the subpoena was served
Subpoena ad testificandum:
1. That the witness is not bound thereby.
2. That the witness fees and kilometrage
allowed by the Rules were not tendered
Depositions pending action (Rule 23)
Depositions before action or pending
appeal (Rule 24)
Interrogatories to parties (Rule 25)
Admission by adverse party (Rule 26)
Production or inspection of documents
and things (Rule 27)
Physical and mental examination of
persons (Rule 28)
5.
To enable a party to obtain knowledge of
material facts within the knowledge of
the adverse party or of third parties
through depositions;
To obtain knowledge of material facts or
admissions from the adverse party
through written interrogatories;
To obtain admissions from the adverse
party regarding the genuineness of
relevant documents or relevant matters
of fact through requests for admissions;
To inspect relevant documents or objects,
and lands or other property in the
possession and control of the adverse
party; and
To determine the physical or mental
condition of a party when such is in
controversy (Koh vs. IAC, 144 SCRA 259).
1. DEPOSITIONS PENDING ACTION; DEPOSITIONS
BEFORE ACTION OR PENDING APPEAL
a. MEANING OF DEPOSITION
Q: What is deposition?
A: A deposition is the taking of the testimony of
any person, whether he be a party or not, but at the
instance of a party to the action. This testimony is
taken out of court. Deposition may be:
a. An oral examination
b. Written interrogatories (Sec 1, Rule 23)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
55
UST GOLDEN NOTES 2011
XPN: If the deposition or any part thereof is
offered in evidence for any purpose (Sec. 8, Rule
23).
Q: When can depositions may be availed of?
A:
a.
b.
During a pending action (Rule 23) –
deposition de benne esse
Before action or Pending appeal (Rule 24)
– deposition in perpetuam rei memoriam
XPN to the XPN: Introduction of deposition
does not make the deponent his witness:
1. If the deposition is used for impeaching or
contradicting the deponent (Sec. 8, Rule
23); or
2. If the adverse party uses the deposition of
the other party (Sec. 4[b], Rule 23)
Q: When may plaintiff be permitted to take
depositions?
A:
GR: Before answer is served because plaintiff
must await joinder of issues.
XPN: In cases of special circumstances. There
ust e so e e essit o good easo fo
taking the testimony immediately or that it
would be prejudicial to the party seeking the
order to be compelled to await joinder of issue.
E.g.: witness is aged or infirm, or about to leave
the ou t s ju isdi tio . (Herrera, Vol. II, pp. 1213, 2007 ed.)
Q: May a party rebut a deposition?
A: Yes. At the trial or hearing, any party may rebut
any relevant evidence contained in a deposition
whether introduced by him or by any other party
(Sec.9, Rule 23).
Q: Before whom may depositions be taken?
A:
1.
If within the Philippines
a. Judge;
b. Notary public; or
c. Any person authorized to administer
oaths, as stipulated by the parties in
writing (Sec. 10, Rule 23).
2.
If outside the Philippines
a. On notice, before a secretary of
embassy or legation, consul-general,
consul, vice-consul, or consular agent
of the Philippines;
b. Before such person or officer as may
be appointed by commission or
letters rogatory; or
c. Any person authorized to administer
oaths, as stipulated by the parties in
writing (Sec. 11, Rule 23).
Q: When is leave of court necessary when taking
depositions? When is it not necessary?
A:
1. It is necessary
a. Before service of an answer but after the
jurisdiction has been acquired over the
defendant or over the property subject of
the action
b. If the deposition to be taken is that of a
prisoner. (sec 1, Rule 23)
2. It is not necessary when an answer has already
been served and the deponent is not confined in
prison. (sec. 1, Rule 23)
Q: What is the effect of substitution of parties?
A: It does not affect the right to use depositions
previously taken; and when an action has been
dismissed and another action involving the same
subject is afterward brought between the same
parties or their representatives or successors-ininterest, all depositions lawfully taken and duly filed
in the former action may be used in the latter as if
originally taken therefor (Sec. 5, Rule 23).
Q: Should the deponent be deemed a witness of
the party taking his deposition?
A:
GR: No (Sec. 7, Rule 23).
56
Q: When shall letters rogatory or commission be
issued?
A: They shall be issued only when necessary or
convenient, on application and notice, and on such
terms and with such direction as are just and
appropriate (Sec. 12, Rule 23).
Q: Distinguish commission from letters rogatory.
A:
Commission
Letters Rogatory
Instrument issued by a
Instrument sent in the name
court of justice, or
and by authority of a judge or
other competent
court to another, requesting
tribunal, to authorize
the latter to cause to be
a person to take
examined, upon interrogatories
depositions or do any
filed in a case pending before
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
other act by authority
of such court or
tribunal.
Issued to a nonjudicial foreign officer
who will directly take
the testimony.
the former, a witness who is
within the jurisdiction of the
judge or court to whom such
letters are addressed.
Issued to the appropriate
judicial officer of the foreign
country who will direct
somebody in said foreign
country to take down
testimony.
Applicable rules of
procedure are those
of the requesting
court.
Applicable rules of procedure
are those of the foreign court
requested to act.
Resorted to if
permission of the
foreign country is
given.
Resorted to if the execution of
the commission is refused in
the foreign country. (There
must be a showing that the
commission is inadequate or
ineffective)
Leave of court is not
necessary.
Leave of court is necessary.
not known, a general description sufficient to
identify him or the particular class or group to
which he belongs (Sec. 15, Rule 23).
Note: On motion of any party upon whom the notice is
served, the court may for cause shown enlarge or
shorten the time (Sec. 15, Rule 23)
Q: When may the court make orders for the
protection of parties and deponents?
A: 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 orders for the protection of
parties and deponents (Sec. 16, Rule 23).
Q: What are the orders that the court may make
for the protection of parties and deponents?
A:
Q: Who are disqualified to be a deposition officer?
1.
2.
A:
1.
2.
3.
4.
One who is related to the deponent
within the 6th degree of consanguinity or
affinity;
An employee or attorney of one of the
parties;
One who is related to the attorney of the
deponent within the same degree or
employee of such attorney; and
One who is financially interested in the
action (Sec. 13, Rule 23).
3.
4.
5.
6.
Q: May the parties stipulate in writing for the
taking of depositions?
A: Yes. They may do so before any person
authorized to administer oaths, at any time, or
place, in accordance with the Rules, and when so
taken may be used like other depositions (Sec. 14,
Rule 23).
Q: What is the requirement in taking deposition
upon oral examination?
A: A party desiring to take the deposition of any
person upon oral examination shall give reasonable
notice in writing to every other party to the action
(Sec. 15, Rule 23).
Q: What shall the notice state?
A: It shall state the time and place for taking the
deposition and the name and address of each
person to be examined, if known, and if the name is
7.
8.
That the deposition shall not be taken;
That it may be taken only at some
designated place other than that stated in
the notice;
That it may be taken only on written
interrogatories;
That certain matters shall not be inquired
into;
That the scope of the examination shall
be held with no one present except the
parties to the action and their officers or
counsel;
That after being sealed, the deposition
shall be opened only by order of the
court, or that secret processes,
developments, research need not be
closed;
That the parties shall simultaneously file
specified documents or information
enclosed in sealed envelopes to be
opened as directed by the court; or
The court may make any other order
which justice requires to protect the party
or
witness
from
annoyance,
embarrassment, or oppression (Sec. 16,
Rule 23).
Q: What are the duties of the officer before whom
the deposition is to be taken?
A: He shall put the witness on oath and shall
personally, or by someone acting under his
discretion and in his presence, record the testimony
of the witness (Sec. 17, Rule 23).
Note: The testimony shall be taken stenographically
unless the parties agree otherwise (Sec. 17, Rule 23)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
57
UST GOLDEN NOTES 2011
4.
Q: What objections shall be noted by the officer
upon the deposition?
A: All objections made at the time of the
examination to the:
1. Qualifications of the officer taking the
deposition;
2. Manner of taking the deposition;
3. Evidence presented;
4. Conduct of any party; or
5. Any other objection to the proceedings
(Sec. 17, Rule 23).
Note: A deposition officer has no authority to rule on
the objection (Herrera, Vol. II, p. 34, 2007 ed.)
Q: What may the parties do if they cannot
participate in the oral examination?
A: The parties may transmit written interrogatories
to the officers, who shall propound them to the
witness and record the answers verbatim (Sec. 17,
Rule 23).
Q: What is the consequence if a party or the
witness refuses to be sworn or refuses to answer
any question after being directed to do so by the
court of the place in which the deposition is being
taken?
A: The refusal may be considered contempt of that
court (Sec. 2, Rule 129).
Q: When shall the deposition be submitted to the
witness for examination?
A: It shall be submitted when the deposition is fully
transcribed and shall be read to or by him, unless
such examination and reading are waived by the
witness and by the parties (Sec. 19, Rule 23).
Wtness refuses to sign (Sec. 19, Rule 23)
Q: What is the effect if the witness does not sign
the deposition?
A: The officer shall sign it and state on the record
the fact of the waiver or of the illness or absence of
the witness or the fact of refusal to sign together
with the reason given therefor, if any, and the
deposition may then be used as fully as though
signed, unless on a motion to suppress under Sec.
29 (f), Rule 23, the court holds that the reasons
given for the refusal to sign require rejection of the
deposition in whole or in part (Sec. 19, Rule 23).
Q: What are the duties of the officer after the
taking of the deposition?
A: He shall:
1. Certify on the deposition that the witness
was duly sworn to by him and that the
deposition is a true record of the
testimony given by the witness;
2. Then securely seal the deposition in an
envelope indorsed with the title of the
action and marked "Deposition of (here
insert the name of witness)";
3. Promptly file it with the court in which
the action is pending or send it by
registered mail to the clerk thereof for
filing (Sec. 20, Rule 23); and
4. Give prompt notice of its filing to all the
parties (Sec. 21, Rule 23).
Note: Failure to comply with this requirement is a
mere defect in form which cannot affect the
admissibility of the deposition. (Herrera, Vol. II, p. 38,
2007 ed.)
Q: When shall the officer furnish a copy of the
deposition to any party or to the deponent?
Q: What shall be done with the changes which the
witness desire to make?
A: He shall furnish a copy upon payment of
reasonable charges therefor (Sec. 22, Rule 23).
A: Any changes in form or substance shall be
entered upon the deposition by the officer with a
statement of the reasons given by the witness for
making them (Sec. 19, Rule 23).
Q: What is the consequence of failure to attend of
the party giving notice?
Q: Is the signing of deposition necessary?
A:
A: The court may order the party giving the notice
to pay such other party the amount of the
reasonable expenses incurred by him and his
counsel in so attending, including reasonable
atto e s fees (Sec. 23, Rule 23).
GR: Yes, it shall be signed by the witness.
XPN:
1. Parties by stipulation waive the signing;
2. Witness is ill;
3. Witness cannot be found; or
58
Q: What is the consequence of failure of party
giving notice to serve subpoena?
A: If because of such failure, the witness does not
attend, and if another party attends in person or by
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
counsel because he expects the deposition of that
witness to be taken, the court may order the party
giving the notice to pay to such other party the
amount of the reasonable expenses incurred by him
and his counsel in so attending, including
easo a le atto e s fees (Sec. 24, Rule 23).
Q: How is deposition upon written interrogatories
done?
5.
A: A party desiring to take the deposition of any
person upon written interrogatories shall serve
them upon every other party with a notice stating
the name and address of the person who is to
answer them and the name or descriptive title and
address of the officer before whom the deposition
is to be taken. Within ten (10) days thereafter, a
party so served may serve cross-interrogatories
upon the party proposing to take the deposition.
Within five (5) days thereafter, the latter may serve
re-direct interrogatories upon a party who has
served cross-interrogatories. Within three (3) days
after being served with re-direct interrogatories, a
party may serve recross-interrogatories upon the
party proposing to take the deposition (Sec. 25,
Rule 23).
Note: The duties of the officer under Secs. 17, 19, 20,
21 & 22 of Rule 23 shall also be followed on deposition
upon written interrogatories (Secs. 26 & 27, Rule 23).
6.
occurring at the oral examination in the
manner of taking the deposition in the
form of the questions or answers, in the
oath or affirmation, or in the conduct of
the parties and errors of any kind which
might be obviated, removed, or cured if
promptly prosecuted, are waived unless
reasonable objection thereto is made at
the taking of the deposition.
As to form of written interrogatories –
Objections to the form of written
interrogatories submitted under Secs. 25
and 26 are waived unless served in
writing upon the party propounding them
within the time allowed for serving
succeeding cross or other interrogatories
and within 3 days after service of the last
interrogatories authorized.
As to manner of preparation – Errors and
irregularities in the manner in which the
testimony is transcribed or the deposition
is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise
dealt with by the officer under Secs. 17,
19, 20 and 26 are waived unless a motion
to suppress the deposition or some part
thereof is made with reasonable
promptness after such defect is, or with
due diligence might have been,
ascertained (Sec. 29, Rule 23)
Q: What is the effect of errors and irregularities in
depositions?
Q: Who may file a petition for deposition before
action?
A:
A: Any person who wants to perpetuate his own
testimony or that of another person regarding any
matter that may be cognizable in any court of the
Philippines (Sec. 1, Rule 24).
1.
2.
3.
4.
As to notice – All errors and irregularities
in the notice for taking a deposition are
waived unless written objection is
promptly served upon the party giving the
notice.
As to disqualification of officer –
Objection to taking a deposition because
of disqualification of the officer before
whom it is to be taken is 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.
As to competency or relevancy of evidence
– Objections to the competency of
witness or the competency, relevancy, or
materiality of testimony are not waived
by failure to make them before or during
the taking of the deposition, unless the
ground, of the objection is one which
might have been obviated or removed if
presented at that time.
As to oral examination and other
particulars – Errors and irregularities
Q: What are the contents of the petition?
A: The petition shall be entitled in the name of the
petitioner and shall show:
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 establish by
the proposed testimony and his reasons
for desiring to perpetuate it;
4. the names or a description of the persons
he expects will be adverse parties and
their addresses so far as known; and
5. The names and addresses of the persons
to be examined and the substance of the
testimony which he expects to elicit from
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
59
UST GOLDEN NOTES 2011
each, and shall ask for an order
authorizing the petitioner to take the
depositions of the persons to be
examined named in the petition for the
purpose of perpetuating their testimony
(Sec.2, Rule 24)
3.
Q: What is the rule on notice and service of
depositions before action?
A: The petitioner shall serve a notice upon each
person named in the petition as an expected
adverse party, together with a copy of the petition,
stating that the petitioner will apply to the court, at
a time and place named therein, for the order
described in the petition. At least twenty (20) days
before the date of the hearing, the court shall cause
notice thereof to be served on the parties and
prospective deponents in the manner provided for
service of summons. (Sec. 3, Rule 24)
Q: What are the contents of the motion for
deposition pending appeal?
any purpose by any party if the court
finds that: DR. USE
a. The witness is Dead
b. The witness Resides more than 100
kilometers from the place of trial or
hearing, or is out of the Philippines.
Unless it appears that his absence
was procured by the party offering
the deposition
c. The witness is Unable to testify
because of age, sickness, infirmity or
imprisonment
d. The party offering the deposition has
been unable to procure the
attendance of the witness by
Subpoena
e. Upon application and notice, that
such Exceptional circumstances exist
as to make it desirable in the interest
of justice (Sec. 4, Rule 23)
Q: What is the dual function of depositions?
A:
A: The motion shall state:
1. The names and addresses of the persons
to be examined
2. The substance of the testimony which he
expects to elicit from each
3. The reason for perpetuating their
testimony. (Sec. 7, Rule 24).
Note: If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the depositions
to be taken, and thereupon the depositions may be
taken and used in the same manner and under the
same conditions as are prescribed under Rule 23. (Sec.
7, Rule 24)
b. USES; SCOPE OF EXAMINATION
1.
Rule 23 – method of discovery, with use
on trial not necessarily contemplated; and
2.
Rule 24 – a method of presenting
testimony.
Q: What is the use of deposition pending appeal?
A: Depositions are taken pending appeal with the
view to their being used in the event of further
proceeding in the court of origin or appellate court.
(Sec. 7, Rule 24)
Note: The deposition taken under this Rule is
admissible in evidence in any action subsequently
brought involving the same subject matter (Sec. 6, Rule
24)
Q: To whom may the deposition be used against?
A: Any part or all of the deposition, so far as
admissible under the rules of evidence, may be
used against:
1. Any party who was present or
represented at the taking of the
deposition; or
2. One who had due notice of the deposition
(Sec. 4, Rule 23)
Q: What are the uses of depositions?
A:
1.
2.
60
Contradicting
or
impeaching
the
testimony of the deponent as a witness;
Any purpose by the adverse party where
the deponent is a party; or
Q: What is the scope of the examination of the
deponent?
A: Unless otherwise ordered by the court as
provided by Sec. 16 or 18, Rule 23, the deponent
may be examined regarding any matter, not
privileged, which is relevant to the subject of the
pending action, whether relating to the claim or
defense of any other party, including the:
1. Existence;
2. Description;
3. Nature;
4. Custody;
5. Condition;
6. Location of any books, documents, or
other tangible things; and
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
7.
The identity and location of persons
having knowledge of relevant facts (Sec.
2, Rule 23).
Q: Distinguish protection order from motion to
terminate or limit examination.
A:
c. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE
MADE
Q: What is the rule on objections to admissibility
of deposition?
A: Subject to the provisions of Sec. 29, Rule 23,
objection may be made at the trial or hearing to
receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of
the evidence if the witness were then present and
testifying (Sec. 6, Rule 23)
d. WHEN MAY TAKING OF DEPOSITION BE
TERMINATED OR ITS SCOPE LIMITED
Q: What are the grounds for the termination or
limitation of the examination?
A:
1.
2.
3.
Upon a showing that the examination is
being conducted in bad faith;
In such manner as unreasonably to annoy,
embarrass or oppress the deponent or
party (Sec. 18, Rule 23); or
When the constitutional privilege against
self-incrimination is invoked by deponent
or his counsel (Herrera, Vol. II, p. 37, 2007
ed.).
Note: 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 (Sec. 18,
Rule 23).
Q: When may taking of deposition be terminated
or its scope limited?
A: At any time during the taking of the deposition,
on motion or petition of any party or of the
deponent. (Sec. 18, Rule 23)
Protection Order (Sec.
16, Rule 23)
Provides protection to
the party or witness
before the taking of
deposition.
The Motion is filed with
the court in which the
action is pending.
Motion to Terminate or
Limit Examination (Sec.
18, Rule 23)
Provides such protection
during the taking of
deposition.
Motion or petition is filed
in the court in which the
action is pending or the
RTC of the place where
the deposition is being
taken.
Q: What is the rule on objections to admissibility
of deposition?
A: Subject to the provisions of Sec. 29, Rule 23,
objection may be made at the trial or hearing to
receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of
the evidence if the witness were then present and
testifying (Sec. 6, Rule 23).
2. WRITTEN INTERROGATORIES TO ADVERSE
PARTIES
Q: What is the purpose of interrogatories to
parties?
A: For eliciting material and relevant facts from any
adverse party (Sec. 1, Rule 25).
Q: Distinguish
particulars.
interrogatories
from
bill
of
A:
Interrogatories
Interrogatories to parties
are not directed to a
particular
pleading.
Instead, they seek to
disclose all material and
relevant facts from a
party (Sec 1, Rule 25)
Bill of Particulars
Designed
to
clarify
ambiguities in a pleading
or to state with sufficient
definiteness allegations
in a pleading. It is
therefore directed to a
pleading (Sec 1, Rule 12)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
61
UST GOLDEN NOTES 2011
Q: Distinguish depositions upon written
interrogatories under Rule 23, Section 25 from
interrogatories to parties under Rule 25.
A:
Depositions Upon Written
Interrogatories to
Interrogatories to Parties
Parties (Rule 25)
(Sec. 25, Rule 23)
Deponent
Party or ordinary witness
Party only
Procedure
With intervention of the No
intervention.
officer authorized by the Written interrogatories
Court to take deposition
are directed to the
party himself
Not served upon the
adverse party directly. They Served directly upon
are instead delivered to the the adverse party (Sec
officer before whom the 1, Rule 25)
deposition is to be taken.
(Sec 26, Rule 23)
Scope
Direct, cross, redirect, reOnly one set of
cross
interrogatories
Interrogatories
15 days to answer
No fixed time
unless extended or
reduced by the court
Q: What is
interrogatories?
the
procedure
in
taking
A: The mode of discovery is availed of by filing and
serving upon the adverse party written
interrogatories to be answered by the party served.
If the party is a juridical entity, it shall be answered
by any of its officers competent to testify in its
behalf. (Sec 1, Rule 25) The interrogatories shall be
answered fully in writing and shall be signed and
sworn to by the person making them.
Q: How many interrogatories may a party serve?
A: No party may, without leave of court, serve more
than one set of interrogatories to be answered by
the same party (Sec. 4, Rule 25).
Q: How are interrogatories answered?
A: The interrogatories shall be answered fully in
writing and shall be signed and sworn to by the
person making them. The party upon whom the
interrogatories have been served shall file and
serve a copy of the answers on the party submitting
the interrogatories within fifteen (15) days after
service thereof, unless the court, on motion and for
good cause shown, extends or shortens the time
(Sec. 2, Rule 25).
62
Note: The party against whom it is directed may make
objections to the interrogatories. (Sec. 2, Rule 25)
Judgment by default may be rendered against a party
who fails to serve his answer to written
interrogatories. (Sec.3[c], Rule 29)
Q: How can a party make objections to the
interrogatories?
A: Objections shall be presented to the court within
10 days after service of the interrogatories. The
filing of the objections shall have the effect of
deferring the filing and service of the answer to the
interrogatories (Sec. 3, Rule 25).
Q: Is leave of court necessary before a party may
be served with written interrogatories?
A:
GR: It is not necessary after answer has been
served, for the first set of interrogatories.
XPN: It is necessary before answer has been
served because, at that time, the issues are not
yet joined and the disputed facts are not yet
clear.
Q: What is the scope and use of interrogatories?
A: Interrogatories may relate to any matters that
can be inquired into under section 2 of Rule 23, and
the answers may be used for the same purposes
provided in section 4 of the same Rule (Sec. 5, Rule
25).
a. CONSEQUENCES OF REFUSAL TO ANSWER
Q: What are the consequences of refusal to
answer?
A:
(1) If a party or other deponent refuses to answer
any question upon oral examination, the
examination may be completed on other
matters or adjourned as the proponent of the
question may prefer. The proponent may
thereafter apply to the proper court of the place
where the deposition is being taken, for an
order to compel an answer. The same
procedure may be availed of when a party or a
witness refuses to answer any interrogatory
submitted under Rules 23 or 25.
If the application is granted, the court shall
require the refusing party or deponent to
answer the question or interrogatory and if it
also finds that the refusal to answer was
without substantial justification, it may require
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
the refusing party 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,
i ludi g atto e s fees.
If the application is denied and the court finds
that it 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 atto e s fees (Sec. 1, Rule 29).
(2) If a party or other witness refuses to be sworn
or refuses to answer any question after being
directed to do so by the court of the place in
which the deposition is being taken, the refusal
may be considered a contempt of that court
(Sec. 2, Rule 29).
(3) If any party or an officer or managing agent of a
party refuses to obey an order made under
section 1 of this Rule requiring him to answer
designated questions, or an order under Rule 27
to produce any document or other thing for
inspection, copying, or photographing or to
permit it to be done, or to permit entry upon
land or other property, or an order made under
Rule 28 requiring him to submit to a physical or
mental examination, the court may make such
orders in regard to the refusal as are just, and
among others the following:
(a) An order that the matters regarding
which the questions were asked, or the
character or description of the thing or
land, or the contents of the paper, or the
physical or mental condition of the party,
or any other designated facts shall be
taken to be established for the purposes of
the action in accordance with the claim of
the party obtaining the order;
(b) An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses or
prohibiting him from introducing in
evidence designated documents or things
or items of testimony, or from introducing
evidence of physical or mental condition;
(c) An order striking out pleadings or parts
thereof, or staying further proceedings
until the order is obeyed, or dismissing the
action or proceeding or any part thereof,
or rendering a judgment by default against
the disobedient party;
(d) In lieu of any of the foregoing orders or
in addition thereto, an order directing the
arrest of any party or agent of a party for
disobeying any of such orders except an
order to submit to a physical or mental
examination (Sec. 3, Rule 29).
b. EFFECT OF FAILURE TO SERVE WRITTEN
INTERROGATORIES
Q: What is the effect of failure to serve written
interrogatories?
A:
GR: 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.
XPN: When allowed by the court and there is
good cause shown and the same is necessary to
prevent a failure of justice (Sec. 6, Rule 25).
Note: The sanctions adopted by the rules is not one of
compulsion in the sense that the party is being
compelled to avail of the discovery mechanics, but one
of negation by depriving him of evidentiary sources
which would otherwise have been accessible to him.
3. REQUEST FOR ADMISSION
Q: What admissions may be requested from the
adverse party?
A: Admission of the:
1. Genuineness of any material and relevant
document described in and exhibited with
the request; or
2. Truth of any material and relevant matter
of fact set forth in the request (Sec. 1,
Rule 26).
Note: The request for admission must be served
directly upon the party; otherwise, the party to whom
the request is directed cannot be deemed to have
admitted the genuineness of any relevant document
described in and exhibited with the request or relevant
matters of fact set forth therein on account of failure
to answer the request for admission (Briboneria v. CA,
G.R. No. 101682, Dec. 14, 1992).
However, the answer to a request for admission
properly served which was signed and sworn to by the
counsel of the party so requested, is sufficient
compliance with this rule, especially in the light of
ou sel s autho it u de “e s.
a d , ‘ule
(Nestle Philippines, Inc. v. CA, G.R. No. 102404, Feb. 1,
2002)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
63
UST GOLDEN NOTES 2011
Q: When may request for admission be made?
A: At any time after issues have been joined, a
party may file and serve upon any other party a
written request for the admission by the latter.
(Sec. 1, Rule 26).
a. IMPLIED ADMISSION BY ADVERSE PARTY
Q: When should objections to any request for
admission be submitted?
A: They shall be submitted to the court by the party
requested within the period for and prior to the
filing of his sworn statement and his compliance
therewith shall be deferred until such objections
are resolved, which resolution shall be made as
early as practicable (Sec. 2[b], Rule 26).
Q: When is there an implied admission?
Q: May an admission be withdrawn?
A:
GR: Each of the matters of which an admission
is requested shall be deemed admitted.
XPN: Unless, the party to whom the request is
directed files and serves upon the party
requesting the admission a sworn statement
either denying specifically the matters of which
an admission is requested or setting forth in
detail the reasons why he cannot truthfully
either admit or deny those matters (Sec. 2, Rule
26).
A: Yes. The court may allow the party making the
admission to withdraw or amend the admission
upon such terms as may be just (Sec. 4, Rule 26).
d. EFFECT OF FAILURE TO FILE AND SERVE
REQUEST FOR ADMISSION
Q: What is the effect of failure to file and serve
request for admission?
Note: Whe the defe da t is sile t o the plai tiff s
request for admission, he is deemed to have impliedly
admitted the facts set forth therein (Herrera, Vol. II, p.
56, 2007 ed.)
A: A party who fails to file and serve a request for
admission on the adverse party on material and
relevant facts at issue shall not be permitted to
present evidence on such facts unless otherwise
allowed by the court for good cause shown and to
prevent a failure of justice (Sec. 5, Rule 26).
b. CONSEQUENCES OF FAILURE TO ANSWER
REQUEST FOR ADMISSION
4. PRODUCTION OR INSPECTION OF DOCUMENTS
OR THINGS
Q: What is the effect for failure to answer a
request for admission?
Q: What may the court order under this mode of
discovery?
A: The facts or documents are deemed admitted.
Under the Rules, each of the matters of which an
admission is requested shall be deemed admitted
unless within a period designated in the request
which shall not be less than 15 days after service
thereof, or within such further time as the court
may allow on motion, the party to whom the
request is directed files and serves upon the party
requesting the admission a sworn statement either
denying specifically the matter of which an
admission is requested or setting forth in detail the
reason why he cannot truthfully either admit or
deny those matters. (Sec. 2, Rule 26)
A: Upon motion of any party showing good cause
therefor, the court in which an action is pending
may order any party to:
1. Produce and permit the inspection and
copying or photographing, by or on behalf
of the moving party, or of any designated
documents, papers, books, accounts,
letters, photographs, objects or tangible
things, not privileged, which constitute or
contain evidence material to any matter
involved in the action and which are in his
possession, custody or control; or
2. Permit entry upon designated land or
other property in his possession or
control for the purpose of inspecting,
measuring, surveying, or photographing
the property or any designated relevant
object or operation thereon (Sec. 1, Rule
27).
c. EFFECT OF ADMISSION
Q: What is the effect of admission?
A: 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
for any other purpose nor may the same be used
against him in any other proceeding (Sec. 3, Rule
26).
64
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: What are the limitations on the request for
production or inspection of documents or things?
A:
1.
A:
1.
2.
3.
Should not be privileged;
Should constitute or contain evidence
material to any matter involved in the
action and which are in his (the party
ordered) possession, custody, or control
(Sec. 1, Rule 27); and
In the petition, the papers and documents
to be produced must be sufficiently
described.
2.
A 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. (Sec 1, Rule 27)
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. (Sec 1, Rule 27)
5. PHYSICAL AND MENTAL EXAMINATION OF
PERSONS
Q: What are privileged communications?
Q: When may physical and mental examination of
persons be ordered?
A:
1.
2.
3.
4.
5.
6.
Communication between:
a. Husband and wife
b. Attorney and client
c. Physician and patient
d. Priest and penitent
e. Public officers and public interest
Editors may not be compelled to disclose
the source of published news
Voters may not be compelled to disclose
for whom they voted
Trade secrets
Information contained in tax census
returns; and
Bank deposits.
Q: Distinguish the rule on production or inspection
of documents or things under Rule 27 from
subpoena duces tecum.
A: It may be ordered in an action in which the
physical or mental condition of a party is in
controversy (Sec. 1, Rule 28).
Note: Since the results of the examination are
intended to be made public, the same are not covered
by the physician-patient privilege.
Q: What is the procedure to avail physical and
mental examination of persons?
A:
1.
2.
A:
Production or Inspection
of Documents or Things
Essentially a mode of
discovery.
Limited to the parties to
the action.
Issued only upon motion
with notice to the
adverse party.
Subpoena Duces Tecum
Means of compelling
production of evidence
It may be directed to any
person whether a party
or not.
Issued upon an ex parte
application.
3.
4.
A motion must be filed showing good
cause for the examination, with notice to
the other parties as well aside from the
party to be examined. (Sec 2, Rule 28)
The motion shall specify the time, place,
manner, conditions and scope of the
examination and by the person/s by
whom it is made. (Sec 2, Rule 28)
The party examined may request the
party causing the examination to be made
to deliver to him a copy of a detailed
written report of the examining physician
setting out his findings and conclusions.
(Sec 3, Rule 28)
The party causing the examination to be
made 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. (Sec 3, Rule 28)
Note: This mode of discovery does not authorize the
opposing party or the clerk of court or other
functionaries of the court to distrain the articles or
deprive the person who produced the same of their
possession, even temporarily (Tanda v. Aldaya, GR No.
L-13423, Nov. 23, 1959).
Q: What is the effect if the party refuses to deliver
the report upon request to the person causing the
examination to be made?
Q: What is the procedure to avail the production
or inspection of documents or things?
A: The court may order requiring the delivery on
such terms as are just. (Sec 3, Rule 28)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
65
UST GOLDEN NOTES 2011
Q: What is the effect if the physician refuses or
fails to make a report?
1.
A: The court may exclude his testimony. (Sec 3, Rule
28)
2.
Q: What is the effect if the party examined
requests and obtains a report on the results of the
examination?
A:
He has to furnish the other party a copy
of the report of any previous or
subsequent examination of the same
physical and mental condition (Sec. 3,
Rule 28)
He 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
so examined or may thereafter examine
him (Sec. 4, Rule 28).
6. CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY
Q: What are the sanctions in case of refusal to comply with the modes of discovery?
A:
Refusal to answer any question upon oral examination
Order to compel an answer;
Contempt;
Require payment of reasonable fees incurred by the proponent;
Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order.
5. Dismiss the action or the proceeding;
6. Render a Judgment by default against the disobedient party;
7. Refuse to allow the disobedient party to support or oppose claims or defenses;
8. Strike out all or any part of the pleading of the disobedient party;
9. Stay further proceedings until order is obeyed;
10. Order the arrest of the refusing party.
Refusal to produce document or thing for inspection, copying or photographing
1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order;
2. Refuse to allow the disobedient party to support or oppose claims or defenses;
3. Strike out all or any part of the pleading of the disobedient party;
4. Dismiss the action or the proceeding;
5. Render a Judgment by default against the disobedient party;
6. Stay further proceedings until order is obeyed;
7. Render a Judgment by default against the disobedient party
8. Order the arrest of the refusing party.
Refusal to submit to Physical or Mental examination
1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order;
2. Prohibit the disobedient party to introduce evidence of physical and mental conditions;
3. Strike out all or any part of the pleading of the disobedient party;
4. Dismiss the action or the proceeding;
5. Render a Judgment by default against the disobedient party;
6. Stay further proceedings until order is obeyed;
7. Render a Judgment by default against the disobedient party
Refusal to the request for admission by adverse party
1. Require payment of reasonable fees incurred by the proponent (Secs. 1-4)
2. Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26).
1.
2.
3.
4.
Note: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the implied admission. The
amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not
been affected by the amendment.
Note: E pe ses a d atto e s fees a e ot to e i posed upo the ‘epu li of the Philippi es. The atte of ho , a d
when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the
case is pending, having always in mind the paramount and overriding interest of justice (Zepeda v. China Banking Corp.,
G.R. No. 172175, Oct. 9, 2006).
66
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
M. TRIAL
Q: When is a case ready for trial?
Q: What is a trial?
A: It is a judicial process of investigating and
determining the legal controversies starting with
the production of evidence by the plaintiff and
ending with his closing arguments (Riano, Civil
Procedure: A Restatement for the Bar, p. 394, 2009
ed.)
Q: Is trial necessary?
A:
GR: When an issue exists, trial is necessary.
Decision should not be made without trial.
XPNs: There is no need for trial in the following
cases:
1. Where the pleadings of the parties tender
no issue at all, a judgment on the
pleadings may be directed by the court
(Rule 34);
2. Where from the pleadings, affidavits,
depositions and other papers, there is
actually no genuine issue, the court may
render a summary judgment (Rule 35);
3. Where the parties have entered into a
compromise or an amicable settlement
either during the pre-trial or while the
trial is in progress (Rule 18; Art. 2028,
NCC);
4. Where the complaint has been dismissed
with prejudice (Sec. 5, Rule 16; Sec. 3,
Rule 17; last. par., Sec. 5, Rule 7);
5. Where the case falls under the operation
of the Rules on Summary Procedure (Rule
17);
6. Where, the parties agree in writing, upon
the facts involved in the litigation, and
submit the case for judgment on the facts
agreed upon, without the introduction of
evidence. If however, there is no
agreement as to all the facts in the case,
trial may be held only as to the disputed
facts (1996 Bar Question).
A: When the issues are joined. Issues are joined
when all the parties have placed their respective
theories and the terms of the dispute are placed
before the court.
Q: What is the rule on notice of trial?
A: Upon entry of a case in the trial calendar, the
clerk shall notify the parties of the date of its trial in
such manner as shall ensure his receipt of that
notice at least five (5) days before such date. (Sec.1,
Rule 30)
1. ADJOURNMENTS AND POSTPONEMENTS
Q: What is the rule on adjournment and
postponement of trial?
A: A court may adjourn a trial from day to day, and
to any stated time, as the expeditious and
convenient transaction of business may require, but
shall have no power to adjourn a trial for a longer
period than one month for each adjournment, nor
more than three months in all, except when
authorized in writing by the Court Administrator,
Supreme Court. (Sec 2, Rule 30)
Note: A motion for postponement should not be filed
on the last hour especially when there is no reason
why it could not have been presented earlier (Republic
vs Sandiganbayan)
A motion for continuance or postponement is not a
matter of right but is addressed to the sound
discretion of the court, and its action thereon will not
be disturbed by the appellate courts in the absence of
clear and manifest abuse of discretion resulting in the
denial of substantial justice.
2. REQUISITES OF MOTION TO POSTPONE TRIAL
Q: What are
postponements?
the
criteria
in
granting
Q: Distinguish trial from hearing.
A:
A:
Trial
Reception of
evidence and other
processes.
The period for the
introduction of
evidence by both
parties.
Hearing
Not confined in trial but
embraces several stages of
litigation, including the pretrial stage.
Does not necessarily imply
presentation of evidence in
open court but the parties are
afforded the opportunity to
be heard.
1.
2.
Reason for the postponement;
Merits of the case of the movant
a. FOR ABSENCE OF EVIDENCE
Q: What are the requisites of a motion to
postpone trial for absence of evidence?
A: Affidavit showing:
a. The evidence is material or relevant
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
67
UST GOLDEN NOTES 2011
b.
That due diligence has been used to
procure it
Note: But the adverse party may avoid it by admitting
the facts sought to be proven by the absent evidence,
even if he objects or reserves the right to their
admissibility. (Sec.3, Rule 30)
b. FOR ILLNESS OF PARTY OR COUNSEL
Q: What are the requisites of a motion to
postpone trial for illness of party or counsel?
A: Affidavit showing:
a. Presence of such party or counsel at
the trial is indispensable;
b. Character of illness is such as to
render his non-attendance excusable
3. AGREED STATEMENT OF FACTS
Q: Distinguish stipulation of facts in civil cases visa-vis criminal cases.
A:
Civil Cases
May be signed by the
counsel alone who has a
special power of
attorney.
May be made verbally or
in writing.
Criminal Cases
Must be signed both by
the counsel and the
accused.
Strict. It must always be
in writing.
Q: What is the rule on stipulation of facts?
A: The parties to any action may agree, in writing,
upon the facts involved in the litigation, and submit
the case for judgment on the facts agreed upon,
without the introduction of evidence. If the parties
agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order
as the court shall prescribe (Sec. 7, Rule 30)
Note: Stipulation of facts is not permitted in actions
for annulment of marriage and for legal separation.
4. ORDER OF TRIAL; REVERSAL OF ORDER
Q: What is the procedure in trial?
A: Subject to the provisions of Sec. 2, Rule 31, and
unless the court for special reasons otherwise
directs, the trial shall be limited to the issues stated
in the pre-trial order and shall proceed as follows:
68
Plaintiff shall adduce evidence in support of his
complaint
Defendant shall then adduce evidence in support
of his defense, counterclaim, cross-claim and
third party complaint
Third party defendant, if any, shall adduce
evidence of his defense, counterclaim, crossclaim and fourth-party complaint
Fourth party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them
Parties against whom any counterclaim or crossclaim has been pleaded, shall adduce evidence in
support of their defense, in the order to be
prescribed by the court
Parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons
and in the furtherance of justice, permits them to
adduce evidence upon their original case
Upon admission of the evidence, the case shall
be deemed submitted for decision, unless the
court directs the parties to argue or to submit
their respective memoranda or any further
pleadings
Note: If several defendants or third party defendants
and so forth having separate defenses appear by
different counsel, the court shall determine the
relative order of presentation of their evidence (Sec. 5,
Rule 30)
Q: When is a reverse order of trial allowed?
A: Where the defendant, in his answer, relies upon
an affirmative defense, a reverse order of trial shall
take place. Since the defendant admits the
plai tiff s lai
ut seeks to a oid lia ilit ased o
his affirmative defense he shall proceed first to
prove his exemption.
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
2.
5. CONSOLIDATION OR SEVERANCE OF HEARING
OR TRIAL
Q: Distinguish consolidation from severance.
If filed with the different branches of the
same RTC and one of such cases has not
been partially tried. (Raymundo v. Felipe,
G.R. No. L-30887, Dec. 24, 1971)
Q: When may civil actions be suspended?
A:
Consolidation
Involves several actions
having
a
common
question of law or fact
which may be jointly
tried (Sec.1, Rule 31).
Severance
Contemplates a single
action having a number
of claims, counterclaims,
cross-claims, third-party
complaints, or issues
which may be separately
tried.
A:
1.
2.
Q: What are the requisites for consolidation?
A:
1.
2.
Actions involving a common question of
law or fact; and
There must be at least 2 actions pending
before the same court (Sec.1, Rule 31).
Q: What are the ways of consolidating cases?
A:
Recasting the
Cases
Reshaping of
the cases by
amending the
pleading,
dismissing
some
cases
and retaining
only one case.
There must be
joinder
of
causes
of
action and of
parties.
Consolidation
Proper
It is a joint trial
with
joint
decision, the
cases retaining
their original
docket
numbers.
Test-Case
Method
By hearing only
the principal case
and suspending
the hearing on
the other cases
until
judgment
has
been
rendered in the
principal
case.
The cases retain
their
original
docket numbers
(Riano,
Civil
Procedure, p. 96,
2009 ed.).
Q: What is the rule on consolidation of cases?
A:
If willingness to discuss a possible
compromise is expressed by one or both
parties; or
If it appears that one of the parties,
before the commencement of the action
or proceeding, offered to discuss a
possible compromise but the other party
refused the offer (Sec. 8, Rule 30; Art.
2030, NCC).
6. DELEGATION OF RECEPTION OF EVIDENCE
Q: May the judge delegate the reception of
evidence?
A:
GR: No. The judge shall personally receive and
resolve the evidence to be adduced by the
parties.
XPN: The reception of evidence may be
delegated to the Clerk of Court, under the
following conditions:
1. The delegation may be made only in
defaults or ex parte hearings, and in any
case where the parties agree in writing;
2. The reception of evidence shall be made
only by the clerk of that court who is a
member of the bar;
3. Said clerk shall have no power to rule on
objections to any question or to
admission of evidence or exhibits; and
4. He shall submit his report and transcripts
of the proceedings, together with the
objections to be resolved by the court,
within 10 days from the termination of
the hearing (Sec. 9, Rule 30).
7. TRIAL BY COMMISSIONERS
GR: Consolidation is discretionary upon the
court to avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clear
congested dockets, and simplify the work of the
trial court and save unnecessary costs and
expenses.
XPNs: Consolidation becomes a matter of duty
when:
1. If two or more cases are pending before
the same judge; or
Q: Who is a commissioner?
A: A person to whom a case pending in court is
referred, for him to take testimony, hear the parties
and report thereon to the court, and upon whose
report, if confirmed, judgment is rendered.
Q: Distinguish delegation to clerk of court under
Rule 30 from trial by commissioner under Rule 32.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
69
UST GOLDEN NOTES 2011
A:
b. POWERS OF THE COMMISSIONER
Delegation to Clerk of
Court
Delegation is made
during trial.
Clerk of court must be a
lawyer.
Clerk of court cannot rule
on objections or on the
admissibility of evidence.
Trial by Commissioner
Commissioner can be
appointed even after the
case has become final
and executory.
Commissioner need not
be a lawyer.
Commissioner can rule
on objections or on
admissibility of evidence.
Q: What is the rule on trial by commissioner?
A:
GR: Discretionary upon the courts.
XPNS:
1.
2.
3.
4.
Expropriation (Rule 67);
Partition (Rule 69);
Settlement of estate of a deceased person
in case of contested claims; and
Submission of accounting by executors or
administrator.
Note: An irregularity in the appointment of a
commissioner must be seasonably raised in the trial
court where the defect could still be remedied. It can
be waived by consent of the parties, express or
implied.
a. REFERENCE BY CONSENT OR ORDERED ON
MOTION
Q: How may a case be referred to a commissioner?
A: By written consent of both parties, the court may
order any or all of the issues in a case to be referred
to a commissioner to be agreed upon by the parties
or to be appointed by the court (Sec. 1, Rule 32).
Q: When may a case be referred to a
commissioner if the consent of the parties are not
given?
A:
1.
2.
3.
4.
70
When the trial of an issue of fact requires
the examination of a long account on
either side;
When the taking of an account is
necessary for the information of the court
before judgment;
When a question of fact, other than upon
the pleadings, arises upon motion or
otherwise, in any stage of a case; or
For carrying a judgment or order into
effect (Sec. 2, Rule 32).
Q: What are the powers of a commissioner?
A:
1.
2.
3.
4.
5.
Power to regulate the proceedings in
every hearing before him;
Do all acts and take all measures
necessary or proper for the efficient
performance of his duties under the order
of reference;
Issue subpoenas ad testificandum and
duces tecum;
Swear witnesses; and
Rule upon the admissibility of evidence
(Sec.3, Rule 32).
Note: Requirement of hearing cannot be dispensed
with as this is the essence of due process.
Q: What is the effect of failure of parties to appear
before a commissioner?
A: The commissioner may proceed ex parte or, in
his discretion, adjourn the proceedings to a future
day, giving notice to the absent party or his counsel
of the adjournment (Sec.6, Rule 32)
c. COMMI““IONER’“ REPORT; NOTICE TO PARTIES
AND HEARING ON THE REPORT
Q: What is a o
issio e ’s epo t?
A: Upon completion of the trial or hearing or
proceeding before the commissioner, he shall file
with the court his report in writing upon the
matters submitted to him by the order of reference.
When his powers are not specified or limited, he
shall set forth his findings of fact and conclusions or
law in his report. He shall attach in his report all
exhibits, affidavits, depositions, papers and the
transcript, if any, of the evidence presented before
him (Sec. 9).
Note: The o
issio e s epo t is ot i di g upo
the court which is free to adopt, modify, or reject, in
whole or in part, the report. The court may receive
further evidence or recommit the report with
instructions (Sec. 11, Rule 32; Baltazar vs. Limpin, 49
Phil. 39).
Q: What is the rule on notice of filing of the
report?
A: Upon the filing of the report, the parties shall
be notified by the clerk, and they shall be allowed
ten (l0) days within which to signify grounds of
objections to the findings of the report, if they so
desire. Objections to the report based upon
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
grounds which were available to the parties during
the proceedings before the commissioner, other
than objections to the findings and conclusions
therein set forth, shall not be considered by the
court unless they were made before the
commissioner. (Sec.10, Rule 32)
appeal the order of dismissal is reversed he shall be
deemed to have waived the right to present
evidence. (Sec.1, Rule 33)
Note: GR: Notice of the filing of the report must be
sent to the parties for the purpose of giving them an
opportunity to present their objections (Santos vs.
Guzman, 45 Phil. 646). The failure to grant the parties,
in due form, this opportunity to object, may, in some
instances, constitute a serious error in violation of
their substantial rights (Govt. vs. Osorio, 50 Phil. 864).
A:
XPN: The rule, however, is not absolute. In Manila
Trading and Supply Co. vs. Phil. Labor Union, 71 Phil.
539, it was ruled that although the parties were not
otified of the fili g of the o
issio e s epo ts, a d
the court failed to set said report for hearing, if the
parties who appeared before the commissioner were
duly represented by counsel and given an opportunity
to be heard, the requirement of due process has been
satisfied, and a decision on the basis of such report,
with the other evidence of the case is a decision which
meets the requirements of fair and open hearing.
Q:
o
What should be heard
issio e ’s epo t hea i g?
during
Q: What is the effect of filing of demurrer to
evidence?
Motion Granted
but
Reversed on Appeal
Movant shall have the Movant is deemed to have
right to present his waived his right to present
evidence
evidence. The decision of
the appellate court will be
based only on the
evidence of the plaintiff as
the defendant loses his
right to have the case
remanded for reception of
his evidence.
Denial is interlocutory,
hence, not appealable. Order of the court is an
Sec. 1, Rule 36 (that adjudication on the merits.
judgment should state Hence, the requirement in
clearly and distinctly the Sec. 1, Rule 36 should be
facts and the law on which complied with.
it is based), will not apply.
Motion Denied
the
A: In the hearing to be conducted on the
o
issio e s epo t, the ou t ill e ie o l so
much as may be drawn in question by proper
objections. It is not expected to rehear the case
upon the entire record (Kreidt vs. McCullough and
Co., 37 Phi. 474).
Note: A demurrer to evidence under Rule 33 is in
effect, a motion to dismiss but is not the same as what
is described in Rule 16.
Q: Distinguish a demurrer to evidence from a
motion to dismiss.
A:
Motion to
Dismiss
(Rule 16)
N. DEMURRER TO EVIDENCE
Q: What is demurrer to evidence?
A: It is a motion to dismiss based on the ground of
insufficiency of evidence and is presented after the
plaintiff rests his case (Regalado, Vol. I, p. 391, 2005
ed.). The aim of this rule is to discourage prolonged
litigation.
When
to file
Grounds
Note: There is only a one side trial, i.e. it is only the
plaintiff who has presented evidence.
Q: When may a party to the case move for
dismissal based on insufficiency of evidence?
A: 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. If his motion is denied, he shall have the right
to present evidence. If the motion is granted but on
If
denied
If
granted
Before filing of
answer
The 10 grounds
enumerated
in
Rule 16
The
defendant
may
file
his
responsive
pleading.
The
complaint
may be refiled
depending on the
ground
of
dismissal.
Demurrer to
Evidence
(Rule 33)
After the plaintiff
rests its case or after
the completion of the
presentation
of
evidence
That upon the facts
and the law, the
plaintiff has shown no
right to relief
The defendant may
present his evidence.
The complaint may
NOT be filed. The
remedy
of
the
plaintiff is to appeal
from the dismissal.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
71
UST GOLDEN NOTES 2011
Q: ABS Co. is the operator of several buses. One of
the buses owned by ABS Co. rammed with a dump
truck causing the instantaneous death of Nilo, one
of the passengers of the ill-fated bus.
Consequently, Nestor, son of Nilo, filed a
complaint against ABS Co. for damages. After
Nestor had rested his case, ABS Co. filed a
demurrer to evidence, contending that Nestor's
evidence is insufficient because it did not show (1)
that ABS Co. was negligent and (2) that such
negligence was the proximate cause of the
collision. Should the court grant or deny
defendant's demurrer to evidence? Reason briefly.
2. EFFECT OF DENIAL
Q: What is the effect of denial of demurrer to
evidence?
A:
1.
2.
3.
A: No, the ou t should ot g a t defe da t s
demurrer to evidence. Under the Rules of Court,
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.
Here, Nestor has shown that he is entitled to the
relief he is asking for. ABS Co. is a common carrier.
Under Article 1756 of the Civil Code, in case of
death of or injuries to passengers, common carriers
are presumed to have been at fault or to have acted
negligently, unless they prove that they observed
extraordinary diligence. Proof that the defendant
was negligent and that such negligence was the
proximate cause of the collision is not required.
Thus, without proof that ABS Co. has exercised
extraordinary diligence, the presumption of
negligence stands. (2004 Bar Question)
4.
3. EFFECT OF GRANT
Q: What is the effect of granting the demurrer to
evidence?
A:
1.
The case shall be dismissed.
Note: The plaintiff may file an appeal and if that
appeal was granted, the defendant loses his right
to present evidence. (Sec.1, Rule 33)
2.
Upon appeal, the appellate court
reversing the order granting the demurrer
should not remand the case to the trial
court. Instead, it should render judgment
based on the evidence submitted by the
plaintiff.
(Radiowealth
Finance
Corporation vs Del Rosario, 335 SCRA 288)
3.
The demurrer to evidence abbreviates
judicial proceedings.
Q: What is judgment on demurrer to evidence?
A: It is a judgment rendered by the court dismissing
a case upon motion of the defendant, made after
plaintiff has rested his case, on the ground that
upon the facts presented by the plaintiff and the
law on the matter, plaintiff has not shown any right
to relief.
The defendant shall have the right to
present his evidence (Sec. 1, Rule 33)
The court shall set the date for the
receptio of the defe da t s e ide e.
An order denying a demurrer to evidence
not
appealable
(because
it
is
interlocutory)
XPN: It can be subject to petition for
certiorari in case of grave abuse of
discretion or an oppressive exercise of
judicial authority.
The right to present evidence after denial
of demurrer to evidence does not apply
to election cases.
1. GROUND
4. WAIVER OF RIGHT TO PRESENT EVIDENCE
Q: On what ground may the demurrer to evidence
be filed?
Q: When is there a waiver of right to present
evidence?
A: The only ground for demurrer to evidence is that
the plaintiff has no right to relief.
A: If the demurrer is granted but on appeal the
order of dismissal is reversed, the defendant is
deemed to have waived his right to present
evidence (Sec.1, Rule 33)
72
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
5. DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO EVIDENCE IN A CRIMINAL CASE
Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases.
A:
Leave of court
If granted
Civil Case
Not required
The Plaintiff may appeal from the order of
dismissal of the case
Criminal Case
With or Without
The Plaintiff cannot make an appeal from the
order of dismissal due to the constitutional
prohibition against double jeopardy
The Defendant may adduce his evidence only if
the demurrer is filed with leave of court.
The Defendant may proceed to adduce his
evidence
If there was no leave of court, accused can no
longer present his evidence and submits the
ase fo de isio ased o the p ose utio s
evidence
If denied
If the plaintiff
appeals from
the order of
dismissal
How
can
demurrer be
denied?
If the ou t fi ds plai tiff s e ide e i suffi ie t,
it will grant the demurrer by dismissing the
complaint. The judgment of dismissal is
appealable by the plaintiff. If plaintiff appeals
and judgment is reversed by the appellate court,
it will decide the case on the basis of the
plai tiff s e ide e ith the o se ue e that
the defendant already loses his right to present
evidence. No res judicata in dismissal due to
demurrer
If the ou t fi ds the p ose utio s e ide e
insufficient, it will grant the demurrer by
rendering judgment acquitting the accused.
Judgment of acquittal is not appealable;
double jeopardy sets in
The plaintiff files a motion to deny motion to
demurrer to evidence.
O. JUDGMENTS AND FINAL ORDERS
The court may motu proprio deny the motion.
5.
Q: What is a judgment?
A: It is a final consideration and determination by a
court of the rights of the parties, upon matters
submitted to it in an action or proceeding.
Q: What are the kinds of judgment?
6.
A:
1.
2.
3.
4.
Judgment upon compromise – It is one
conferred on the basis of a compromise
agreement entered into between the
parties.
Judgment by confession – It is one
rendered by the court when a party
e p essl ag ees to the othe pa t s
claim or acknowledges the validity of the
claim against him.
Judgment upon the merits – It is one that
is rendered after consideration of the
evidence submitted by the parties during
the trial of the case.
Clarificatory judgment – It is rendered to
clarify an ambiguous judgment or one
difficult to comply with.
7.
8.
9.
Judgment nunc pro tunc (Now for then) –
A judgment intended to enter into the
record the acts which had already been
done, but which do not appear in the
records. Its only function is to record
some act of the court which was done at
a former time, but which was not then
recorded, in order to make the record
speak the truth, without any changes in
substance or any material respect.
Judgment sin perjuicio – Judgment
without a statement of the facts in
support of its conclusion to be later
supplemented by the final judgment. This
is not allowed.
Judgment by default (Sec. 3, Rule 9) –
Rendered by the court following a default
order or after it received, ex parte,
plai tiff s e ide e.
Judgment on the pleadings (Rule 34) –
Proper when an answer fails to tender an
issue because of a general or insufficient
denial of the material allegations of the
complaint or when the answer admits the
material allegations of the adverse party's
pleading.
Summary judgment (Rule 35) – One
granted by the court for the prompt
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
73
UST GOLDEN NOTES 2011
10.
11.
12.
13.
14.
15.
16.
disposition of civil actions wherein it
clearly appears that there exists no
genuine issue or controversy as to any
material fact.
Several judgment (Sec. 4, Rule 36) – It is
one rendered by a court against one or
more defendants and not against all of
them, leaving the action to proceed
against the others.
Separate judgment (Sec. 5, Rule 36) – It is
one rendered disposing of a claim among
several others presented in a case, after 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
said claim.
Special judgment (Sec. 11, Rule 39) – One
which can only be complied with by the
judgment obligor because of his personal
qualifications or circumstances or one
that requires the performance of an act
other than:
a. Payment of money; and
b. Sale of real and personal property.
Judgment for specific acts (Sec. 10, Rule
39) – Applicable in cases of:
1. Conveyance, delivery of deeds, or
other specific acts, vesting title;
2. Sale of real or personal property;
3. Delivery or restitution of real
property;
4. Removal of improvements on
property subject of execution; or
5. Delivery of personal property.
Judgment on demurrer to evidence (Rule
33) – A judgment rendered by the court
dismissing a case upon motion of the
defendant, made after plaintiff has rested
his case, on the ground that upon the
facts presented by the plaintiff and the
law on the matter, plaintiff has not shown
any right to relief.
Conditional judgment – It is one the
effectivity of which depends upon the
occurrence or non-occurrence of an
event.
Final judgment – One which disposes of
the whole subject matter or terminates
the particular proceedings or action,
leaving nothing to be done by the court
but to enforce by execution what has
been determined.
Q: What are those which are not considered as
decisions?
74
A:
1.
2.
3.
Resolutions of Supreme Court denying the
petitions to review decisions of Court of
Appeals.
Minute Resolutions – if issued by SC
denying or dismissing a petition or a
motion for reconsideration for lack of
merit, it is understood that the challenged
decision or order is deemed sustained.
Interlocutory Orders – those that
determine incidental matters that do not
touch on the merits of the case or put an
end to the proceedings. E.g. Order
denying a motion to dismiss, granting an
extension of time or authorizing an
amendment.
Note: Appeal is not proper to question an
interlocutory order. The proper remedy to
question an interlocutory order is a petition
for certiorari under Rule 65.
1. JUDGMENT WITHOUT TRIAL
Q: What is a judgment without trial?
A: The theory of summary judgment is that
although an answer may on its face appear to
tender issues—requiring trial—yet if it is
demonstrated by affidavits, depositions, or
admissions that those issues are not genuine, but
sham or fictitious, the Court is justified in
dispensing with the trial and rendering summary
judgment for plaintiff. The court is expected to act
chiefly on the basis of the affidavits, depositions,
admissions submitted by the movants, and those of
the other party in opposition thereto. The hearing
contemplated (with 10-day notice) is for the
purpose of determining whether the issues are
genuine or not, not to receive evidence on the
issues set up in the pleadings. A hearing is not thus
de riguer. The matter may be resolved, and usually
is, on the basis of affidavits, depositions,
admissions. Under the circumstances of the case, a
hearing would serve no purpose, and clearly
unnecessary. The summary judgment here was
justified, considering the absence of opposing
affidavits to contradict the affidavits (Galicia vs.
Polo, L-49668, Nov. 14, 1989; Carcon Devt. Corp. vs.
CA, GR 88218, Dec. 17, 1989).
2. CONTENTS OF A JUDGMENT
Q: What are the two parts of a judgment?
A:
1.
2.
Ratio decidendi – the body of judgment
Fallo – The dispositive portion of the
judgment. It is also the part of judgment
that is subject to execution because this is
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
the judgment of the court itself, i.e. if the
petition is granted or denied and the
relief granted.
Note: in the above cases, the material facts alleged in
the complaint shall always be proved (Sec. 1, Rule 34)
4. SUMMARY JUDGMENTS
Q: How should a conflict between the parts of a
decision be resolved?
GR: If there is a conflict between the ratio decidendi
and the fallo, the fallo should prevail. Reason: the
fallo is the final order while the ratio decidendi is
merely a statement ordering nothing.
XPN: If there is a mere mistake in the fallo and the
the ratio decidendi is so clear that it states a
conclusion, the latter should prevail. (Poland
Industrial Limited vs. National Development
Company, 467 SCRA 500)
Q: What are the requisites of a valid judgment?
A:
1.
2.
3.
4.
5.
6.
Authority of the court to hear and
determine the case.
Jurisdiction – over the parties and the
subject matter
The parties must have been given an
opportunity to adduce evidence.
The evidence must have been considered
by the tribunal in deciding the case.
The judgment must be in writing,
personally and directly prepared by the
judge.
The judgment must state clearly the facts
and the law on which it is based, signed
by the judge and filed with the clerk of
court.
NOTE: Only for decisions and final orders on
merits and does not apply to those resolved
through incidental matters.
3. JUDGMENT ON THE PLEADINGS
Q: What is a summary judgment?
A: A summary judgment or accelerated judgment is
a procedural technique to promptly dispose of
cases where the facts appear undisputed and
certain from the pleadings, depositions, admissions
and affidavits on record, of for weeding out sham
claims or defenses at an early stage of the litigation
to avoid the expense and loss of time involved in a
trial. Its object is to separate what is formal or
pretended denial or averment from what is genuine
and substantial so that only the latter may subject a
party-in-interest to the burden of trial. Moreover,
said summary judgment must be premised on the
absence of any other triable genuine issues of fact.
Otherwise, the movants cannot be allowed to
obtain immediate relief. A genuine issue is such
issue of fact which requires presentation of
evidence as distinguished from a sham, fictitious,
contrived or false claim (Monterey Foods Corp. vs.
Eserjose, GR 153126, Sept. 11, 2003).
Q: What are
judgments?
the
requisites
of
summary
A:
1.
2.
There must be no genuine issue as to any
material fact, except for the amount of
damages; and
The party presenting the motion for
summary judgment must be entitled to a
judgment as a matter of law.
a. FOR THE CLAIMANT
Q: When is a claimant allowed to file for summary
judgment?
Q: When is there a judgment based on pleadings?
Note: Judgment must be on motion of the claimant. It
cannot be rendered by the court motu proprio.
A: 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 a summary judgment in his favor
upon all or any part thereof (Sec. 1, Rule 35).
Q: What are cases where judgment on the
pleadings will not apply?
b. FOR THE DEFENDANT
A: Where an answer fails to tender an issue, or
otherwise admits the material allegations of the
ad e se pa t s pleadi g, the ou t a , o
otio
of that party, direct judgment on such pleading.
A:
1.
2.
3.
Actions for the declaration of nullity of a
marriage
Actions for annulment of marriage
Actions for legal separation
Q: When is a defendant allowed to file for
summary judgment?
A: 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
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
75
UST GOLDEN NOTES 2011
affidavits, depositions or admissions for a summary
judgment in his favor as to all or any part thereof
(Sec. 2, Rule 35).
d. AFFIDAVITS AND ATTACHMENTS
Q: What are the rules on affidavits and
attachments on summary judgments?
c. WHEN THE CASE NOT FULLY ADJUDICATED
A:
Q: What happens when a case is not fully
adjudicated?
A: If on motion, judgment is not rendered upon the
whole case of for all the reliefs sought and a trial is
necessary, the court at the hearing of the motion,
by examining the pleadings and the evidence
before it and by interrogating counsel shall
ascertain what material facts exist without
substantial controversy and what are actually and
in good faith controverted. It shall thereupon make
an order specifying the facts that appear without
substantial controversy, including the extent to
which the amount of damages or other relief is not
in controversy, and directing such further
proceedings in the action as are just. The facts so
specified shall be deemed established, and the trial
shall be conducted on the controverted facts
accordingly (Sec. 4, Rule 35).
1.
2.
Supporting and opposing affidavits shall
be made on personal knowledge, shall set
forth such facts as would be admissible in
evidence, and shall show affirmatively
that the affiant is competent to testify to
the matters stated therein. Certified true
copies of all papers or parts thereof
referred to in the affidavit shall be
attached thereto or served therewith
(Sec. 5, Rule 35).
Should it appear to its satisfaction at any
time that any of the affidavits presented
pursuant to the Rules are presented in
bad faith, or solely for the purpose of
delay, the court shall forthwith order the
offending party or counsel to pay to the
other party the amount of the reasonable
expenses which the filing of the affidavits
aused hi to i u , i ludi g atto e s
fees. It may, after hearing, further
adjudge the offending party or counsel
guilty of contempt (Sec. 6, Rule 35).
5. JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS
Answer
Notice
Termination
Who can file
Basis of the
judgment
Judgment on the pleadings
Answer does not tender an issue
Movants must give a 3-day notice of hearing
Entire case may be terminated
Only the plaintiff or the defendants as far as
the counterclaim, cross-claim or third-party
complaint is concerned can file the same
Based only on the pleadings alone, hence,
only on the complaint and the answer
6. RENDITION OF JUDGMENTS AND FINAL ORDERS
Q: What is a rendition of judgment?
A: Rendition of judgment is the filing of the same
with the clerk of court. It is not the pronouncement
of the judgment in open court that constitutes the
rendition. Even if the judgment has already been
put in writing and signed, it is still subject to
amendment if it has not yet been filed with the
clerk of court and before its filing does not yet
constitute the real judgment of the court (Ago vs.
76
Summary judgments
There is an issue tendered in the answer, but it is
not genuine or real issue as may be shown by
affidavits and depositions that there is no real issue
and that the party is entitled to judgment as a
matter of right
Opposing party is given 10 days notice
May only be partial
Either the plaintiff or the defendant may file it
Based on the pleadings, affidavits, depositions, and
admissions
CA, 6 SCRA 530). It is not the writing of the
judgment or its signing which constitutes rendition
of the judgment (Castro vs. Malazo, 99 SCRA 164).
Q: How should a judgment be prepared?
A: A judgment or final order determining the merits
of the case shall be in writing personally and
directly prepared by the judge, stating clearly and
distinctly the facts and the law on which it is based,
signed by him, and filed with the clerk of the court
(Sec. 1, Rule 36).
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
its periods, not more than six (6) months from the
entry of the judgment or final order (Sec. 3, Rule 38).
7. ENTRY OF JUDGMENT AND FINAL ORDER
Q: What is an entry of judgment?
P. POST JUDGMENT REMEDIES
A: The entry of judgment refers to the physical act
performed by the clerk of court in entering the
dispositive portion of the judgment in the book of
entries of judgment and after the same has become
final and executory. The record shall contain the
dispositive portion of the judgment or final order
and shall be signed by the clerk of court, with a
certificate by said clerk that the judgment has
already become final and executory (Sec. 2, Rule
36).
Q: What happens if no appeal was filed on time?
A: If no appeal or motion for new trial or
reconsideration is filed within the time provided in
the Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
entries of judgments. (Sec. 2, Rule 36)
Note: There are some proceedings the filing of which is
reckoned from the date of the entry of judgment: (a)
the execution of a judgment by motion is within five
(5) years from the entry of the judgment (Sec. 6, Rule
39); (b) the filing of a petition for relief has, as one of
Q: What are the available remedies to the
aggrieved party after rendition of judgment?
A: The remedies against a judgment may refer to
those remedies before a judgment becomes final
and executory and those remedies after the same
becomes executory.
1. Before a judgment becomes final and executory,
the aggrieved party may avail of the following
remedies:
a. Motion for Reconsideration;
b. Motion for New Trial; and
c. Appeal
2. After the judgment becomes executory, the
losing party may avail of the following:
a. Petition for relief from judgment;
b. Action to annul judgment;
c. Certiorari; and
d. Collateral attack of a judgment.
1. MOTION FOR NEW TRIAL OR RECONSIDERATION
a. GROUNDS
b. WHEN TO FILE
Q: Distinguish motion for new trial from motion for reconsideration.
A:
MOTION FOR NEW TRIAL
MOTION FOR RECONSIDERATION
Grounds
1. Extrinsic fraud, accident, mistake or excusable negligence (FAME)
which ordinary prudence could not have guarded against and by
reason of which the rights of the aggrieved party was impaired; or
2. Newly discovered evidence, 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).
Requisites
1. Must be in writing;
2. Affidavit of the existence of FAME and newly discovered evidence;
Note: Whenever a remedy is allowed on the ground of FAME, an affidavit
of merit is obligatory.
3. Affidavit of merit setting forth the particular facts claimed to
constitute a meritorious cause of action;
4. In case of newly discovered evidence:
a.
Affidavit of new witnesses; and
b. Duly authenticated documents to be introduced.
1.
2.
3.
1.
2.
The damages awarded are
excessive;
The evidence is insufficient to satisfy
the decision or final order; or
The decisionor final order is contrary
to law (Sec. 1, Rule 37).
Must point out specifically the
conclusion of judgment;
Express reference to testimonial or
documentary evidence or to
provisions of law.
Both shall be made in writing stating the ground / grounds therefor, a written notice of which shall be served by the
movant on the adverse party. (Sec. 2, Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15.
The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere
scrap of paper and will not toll the reglementary period for appeal.
When to file
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
77
UST GOLDEN NOTES 2011
A motion for new trial or reconsideration should be filed within the period for taking an appeal. Hence, it must be filed
before the finality of the judgment (Sec. 1, Rule 37). No motion for extension of time to file a motion for reconsideration
shall be allowed. In DistilleriaLimtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is
within the period for taking an appeal.
Note:
The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days
from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special
proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40).
Second motion may be allowed so long as based on grounds not existing
or available at the time the first motion was made. (Sec. 5, Rule 37)
If granted, the original judgment or final order shall be vacated, and the
action shall stand for trial de novo. 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 without retaking the same (Sec. 6,
Rule 37).
Single motion rule (applicable only on a
judgment or final order but not to
interlocutory order) (Sec. 5, Rule 37)
No new trial or hearing will take place and
the judgment will be based on the
pleadings submitted by the parties. If
granted, the court may amend such
judgment or final order accordingly (Sec.
3, Rule 37).
Note: The amended judgment is in the
nature of a new judgment which
supersedes the original judgment.
If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37).
Available even on appeal but only on the ground of newly discovered
evidence.
Available against judgments or final
orders of both the trial and appellate
courts.
Both must be resolved within 30 days from the time it is submitted for resolution
Both are prohibited motions under Summary Procedure
COMMON PROVISIONS
Q: What is the period to file motion for new trial
or reconsideration?
A: Within the period for taking an appeal or within
15 days after notice to the appellant of the
judgment or final order appealed from. Where a
record on appeal is required the appellant shall file
a notice of appeal and a record on appeal within 30
days after notice of the judgment or final order
(Section 1, Rule 40).
Note: No extension of time to file a Motion for New
Trial or Motion for Reconsideration shall be allowed.
Q: When is a record of appeal required?
A: A record of appeal is required only in:
1. Special proceedings;
2. Other cases of multiple or separate
appeal (Section 3, Rule 40)
Q: What is the effect of filing a MNT/ MR on the
period to appeal?
A: The filing of a timely motion interrupts the
period to appeal (Section 2, Rule 40; Section 3, Rule
41).
78
c. DENIAL OF THE MOTION; EFFECT
Q: What is the effect if the MNT or MR is denied?
A: The o a t has a f esh pe iod of
da s f o
the receipt or notice of the order denying or
dismissing the motion within which to file a notice
of appeal (fresh period rule). (Neypes v. CA, G.R.
No.141524, Sept. 14, 2005)
d. GRANT OF THE MOTION; EFFECT
Q: What is the effect of a grant of the motion?
A: If a new trial be granted in accordance with the
provisions of the rules, the original judgment shall
be vacated or set aside, and the action shall stand
for trial de novo; but the recorded evidence taken
upon the former trial so far as the same is material
and competent to establish the issues, shall be used
at the new trial without retaking the same (Sec. 6).
The filing of the motion for new trial or
reconsideration interrupts the period to
appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).
If the court grants the motion (e.g., it 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
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
accordingly (Sec. 3). The amended judgment is in
the nature of a new judgment which supersedes
the original judgment. It is not a mere supplemental
decision which does not supplant the original but
only serves to add something to it (Esquivel vs.
Alegre, 172 SCRA 315). If 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 that all of the parties to it, the
order may grant a reconsideration as to such issues
if severable without interfering with the judgment
or final order upon the rest (Sec. 7).
e. REMEDY WHEN MOTION IS DENIED, FRESH 15DAY PERIOD RULE
Q: What is the remedy if the motion is denied?
A: The remedy is to appeal from the judgment or
final order itself subject of the motion for
reconsideration or new trial (Sec. 9, Rule 37, Rules
of Court). The movant has a fresh period of fifteen
days from receipt or notice of the order denying or
dismissing the motion for reconsideration within
which to file a notice of appeal. It is no longer
assailable by certiorari. (Sec.9, Rule 37, A.M. No. 077-12-SC).
Q: When does the fresh period rule apply?
A: It applies to:
1. Rule 40 – MTC to RTC
2. Rule 41 – Appeals from RTC
3. Rule 42 – Petition for Review from RTC to CA
4. Rule 43 – Appeals from quasi-judicial agencies
to CA
5. Rule 45 – Appeals by certiorari to the SC
Q: What happens if the motion is filed without the
required affidavits?
A: Non- compliance with the requirements of the
Rules would reduce the motion to a mere proforma motion.
Note: Under Sec. 2,Rule 37 a pro- forma motion shall
not toll the reglementary period of appeal.
Q: What is a pro- forma motion?
A: A pro- forma motion is one which does not
satisfy the requirements of the rules and one which
will be treated as a motion intended to delay the
proceedings (Marikina Development Corporation v.
Flojo, 251 SCRA 87).
MOTION FOR NEW TRIAL
Q: What is a Motion for New Trial?
A: It is a motion for the rehearing of a case already
decided by the court but before the judgment
rendered thereon becomes final and executory,
whereby errors of law or irregularities are
expunged from the record or new evidence is
introduced, or both steps are taken.
Q: What are the requisites of newly discovered
evidence as a ground for New Trial?
A:
1.
2.
Note: The f esh pe iod ule does ot efe to the
period within which to appeal from the order denying
the motion for reconsideration, but to the period
within which to appeal from the judgment itself
because an order denying a motion for reconsideration
is not appealable.
3.
Q: When should the motion be resolved?
A: The motion shall be resolved within 30 days from
the time it is submitted for resolution (Section 4,
Rule 37).
The evidence was discovered after trial;
Such evidence could not have been
discovered and produced at the trial with
reasonable diligence; and
Such evidence is material, not merely
cumulative, corrobative or impeaching,
and is of such weight that if admitted
would probably change the judgment
(BERRY RULE) (CIR v. A. Soriano
Corporation, GR No. 113703 January 31,
1997).
Q: Distinguish Newly Discovered Evidence from
Forgotten Evidence.
A:
Q: Is a MNT/ MR a prerequisite for taking an
appeal or petition for review?
A: A final MNT/ MR is not a prerequisite to an
appeal, a petition for review or petition for review
on certiorari. And since the purpose is to expedite
the final disposition of cases, a strict or prospective
application of said ruling is in order (Habaluyas v.
Japson, GR No. 70895, May 30, 1986).
NEWLY DISCOVERED
EVIDENCE
Evidence
was
not
available to a party
during a trial, and was
discovered
only
thereafter.
FORGOTTEN EVIDENCE
Evidence was already
available to a party and
was
not
presented
through inadvertence or
negligence
of
the
counsel; it is not a ground
for new trial.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
79
UST GOLDEN NOTES 2011
Q: Distinguish extrinsic fraud from intrinsic fraud.
A:
EXTRINSIC FRAUD
Connotes any fraudulent
scheme executed by the
prevailing party outside
trial against the losing
party who because of
such fraud was prevented
from presenting his side
of the case
INTRINSIC FRAUD
Refers to the acts of party
during trial which does
not
affect
the
presentation of the case
Q: Distinguish Motion for New Trial from Motion
for Reopening of the Trial.
A: The purpose of a motion for reconsideration is
precisely to request the court or the quasi- judicial
body to take a second look at its earlier judgment
and correct any errors it may have committed
therein (Reyes v. Pearlbank Securities, GR No.
171435, July 30, 2008).
Q: Is a second motion for reconsideration allowed?
A: A second motion for reconsideration is not
allowed. The prohibition on a second motion
applies only when the motion is directed against a
judgment or a final order. The rule does not apply
to a motion for reconsideration of an interlocutory
order.
Q: When may there be partial reconsideration?
A:
MOTION FOR
NEW TRIAL
A motion must be
filed
Proper only after
promulgation of
judgment
Based
upon
specific grounds
mentioned in Sec.
37 in civil cases
and Sec. 121 in
criminal cases
MOTION FOR REOPENING OF
TRIAL
The judge may act motu propio
May properly be presented only
after either or both parties have
formally offered and closed
their evidence before judgment
Controlled by no other than the
paramount interest of justice,
resting entirely on the sound
discretion of the court, the
exercise of such shall not be
reviewable on appeal UNLESS a
clear abuse thereof is shown.
A: If 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 judgment or final order
upon the rest (Sec. 7, Rule 37).
Q: In a case filed by Pedro against Juan, the latter
received the adverse decision of the RTC on March
1, 2008. On March 14, 2008, Juan filed a motion
for reconsideration. Juan received the decision of
the trial court dismissing his motion on April 1,
2008. When should Juan file his notice of appeal to
the CA?
Q: Is a second motion for new trial allowed?
A: Yes. A second motion for new trial is authorized
by the Rules. A motion for new trial shall include all
grounds then available. Those not so included are
deemed waived. However, when a ground for a
new trial was not existing or available when the first
motion was made, a second motion for new trial
may be filed within the period allowed but
excluding the time during which the first motion
had been (Section 5, Rule 37)
MOTION FOR RECONSIDERATION
Q: What is a motion for reconsideration?
A: A motion for reconsideration under Rule 37 is
one that is directed against a judgment or a final
order. It is not the motion for reconsideration of an
interlocutory order which for instance precedes a
petition for certiorari.
Q: What is the purpose of a MR?
80
A: Juan has 15 days from the receipt of the decision
of the trial court denying his motion for
reconsideration to file his notice of appeal. To
standardize the appeal periods provided in the
Rules of Court and to afford litigants fair
opportunity to appeal their cases, the SC deemed it
practical to allow a fresh period of 15 days within
which to file the notice of appeal in the RTC,
counted from receipt of the order dismissing a
motion for a new trial or motion for
reconsideration.
Sec. 3, Rule 41 of the 1997 Rules of Civil Procedure
states that the appeal shall be taken within 15 days
from notice of judgment or final order appealed
from. The order denying the motion for new trial or
e o side atio is the fi al o de (Fresh period
rule) (Neypes v. CA, G.R. No. 141524, Sept. 14,
2005).
2. APPEALS IN GENERAL
Q: Is the right to appeal part of due process?
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
A: The right to appeal is not part of due process but
a mere statutory privilege that has to be exercised
only in the manner and in accordance with the
provisions of law (Stolt- Nielsen v. NLRC, GR No.
147623, December 13, 2005).
Q: What are the basic guidelines as regards
appeal?
A:
a.
No trial de novo shall be made. The
appellate courts must decide the case on the
basis of the record, except when the
proceedings were not duly recorded as when
there was absence of a qualified stenographer
(Sec. 22[d], BO 129; Rule 21[d], Interim Rules);
b. There can be no new parties;
c. There can be no change of theory (Naval vs.
CA, 483 SCRA 102);
d. There can be no new matters (Ondap vs.
Aubga, 88 SCRA 610);
e. There can be amendments of pleadings to
conform to the evidence submitted before the
trial court (Dayao vs. Shell, 97 SCRA 407);
f. The liability of solidarity defendant who did
not appeal is not affected by appeal of solidarity
debtor (Mun. of Orion vs. Concha, 50 Phil. 679);
g. Appeal by guarantor does not inure to the
principal (Luzon Metal vs. Manila Underwriter,
29 SCRA 184);
h. In ejectment cases, the RTC cannot award
to the appellant on his counterclaim more than
the amount of damages beyond the jurisdiction
of the MTC (Agustin vs. Bataclan, 135 SCRA
342);
i.
The appellate court cannot dismiss the
appealed case for failure to prosecute because
the case must be decided on the basis of the
record (Rule 21, Interim Rules).
Q: Distinguish Notice of Appeal from Record on
Appeal?
A:
NOTICE OF APPEAL
Deemed perfected as to
him upon the filing of the
notice of appeal.
If decision is made by the
courts of 1st level, notice of
appeal need not state the
court to which the appeal is
being taken (Sec.3, Rule 40)
because there is only one
court to which it shall be
made – RTC
If decision is made by the
RTC in its original
jurisdiction, notice of
appeal to the RTC must
disclose where appeal is to
be taken. (Sec 5, rule 41)
Period available is 15 days
before the judgment
becomes final and executor
appeal beyond that
period)
If required, the
appellant has 30 days
to file and serve both
notice and record on
appeal.
Should indicate:
If required, copies of
1.Parties to the appeal;
both the notice of
2.Judgment or final order or
appeal and the record
part thereof appealed from; on appeal shall be filed
3.Material dates showing the In court and served to
timeliness of the appeal
the adverse party.
Q: What are those cases which allow multiple
appeals?
A: The civil cases which admit of multiple appeals
are:
1. Actions for recovery of property with
accounting;
2. Actions for partition of property with
accounting;
3. Special civil actions of eminent domain
and foreclosure of mortgage; and
4. Special proceedings.
Q: What is the rationale for allowing multiple
appeals?
A: To enable the rest of the case to proceed in the
event that a separate and distinct issue is resolved
by the court and held to be final (Roman Catholic
Archbishop of Manila v. CA, GR No. 111324, July 5,
1996).
a. JUDGMENT AND FINAL ORDERS SUBJECT TO
APPEAL
Q: What kind of judgments and final orders are
subject to appeal?
RECORD ON APPEAL
Required only in
Special Proceedings
and other cases of
multiple or separate
appeals.
A: An appeal may be taken only from judgments or
final orders that completely dispose of the case
(Sec.1, Rule 41). An interlocutory order is not
appealable until after the rendition of the judgment
on the merits.
Deemed perfected as
to him with respect to
the subject matter
thereof upon its
approval. (30 days is
the period for filing,
only the court may
approve the record on
b. MATTERS NOT APPEALABLE
Q: What cases are not appealable?
A:
1. Order denying a petition for relief or any
similar motion seeking relief from judgment;
2. Interlocutory order;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
81
UST GOLDEN NOTES 2011
3. Order disallowing or dismissing an appeal;
4. 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. Order of execution;
6. 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 pending, unless the court allows an appeal
therefrom; and
7. Order dismissing an action without
prejudice (Sec. 1 as amended by A.M. No.
07-7-12-SC).
Q: Can the court consider errors not raised in the
assignment of errors?
A:
GR: No. The court as a rule shall not consider errors
not raised in the assignment of errors
XPN: Sec. 5, Rule 51 precludes its absolute
application. The court may consider an error not
raised on appeal provided the same falls within any
of the following categories:
a.
b.
c.
Note: The order denying a motion for new trial or
reconsideration has been deleted from the list by
virtue of A.M. No. 07-7-12-SC.
Q: Can a question that was never raised in the
courts below be allowed to be raised for the first
time on appeal?
A:
GR: No. A question that was never raised in the
courts below cannot be allowed to be raised for the
first time on appeal without offending basic rules of
fair play, justice and due process (Bank of
Commerce vs. Serrano, 451 SCRA 484). For an
appellate court to consider a legal question, it
should have been raised in the court below (PNOC
vs. CA, 457 SCRA 32). It would be unfair to the
adverse party who would have no opportunity to
present evidence in contra to the new theory,
which it could have done had it been aware of it at
the time of the hearing before the trial court. it is
true that this rule admits of exceptions as in cases
of lack of jurisdiction, where the lower court
committed plain error, where there are
jurisprudential developments affecting the issues,
or when the issues raised present a matter of public
policy (Baluyot vs. Poblete, GR 144435, Feb. 6,
2007).
XPNs: The rule admits of exceptions as in cases of:
a. Lack of jurisdiction;
b. Where the lower court committed plain
error;
c. Where
there
are
jurisprudential
developments affecting the issues, or
when the issues raised present a matter
of public policy (Baluyot v. Poblete GR No.
144435, February 6, 2007).
d.
e.
It is an error that affects the jurisdiction
over the subject matter;
It is an error that affects the validity of
the judgment appealed from;
It is an error which affects the
proceedings;
It is an error closely related to or
dependent on an assigned error and
properly argued in the brief; or
It is a plain and clerical error.
Q: What is the asis of the ou t’s po e to ule
on such issues not raised on appeal?
A: The court is imbued with sufficient authority and
discretion to review matters, not otherwise
assigned as errors on appeal, as it finds that the
consideration is necessary in arriving at a complete
and just resolution of the case or to serve the
interest of justice or to avoid dispensing piecemeal
justice (Asian Terminals, Inc. v.NLRC, 541 SCRA 105,
2007).
c. REMEDY AGAINST JUDGMENTS AND ORDERS
WHICH ARE NOT APPEALABLE
Q: What is the remedy in cases where appeal is
not allowed?
A:
GR: In those instances where the judgment or final
order is not appealable, the aggrieved party may
file the appropriate special civil action under Rule
65 (Sec. 1 Rule 41).
XPN: An order denying a motion for new trial or a
motion for reconsideration may no longer be
assailed by way of Rule 65 as per A.M. No. 07- 712, the proper ground is to appeal from the
judgment (Sec. 9, Rule 37).
d. MODES OF APPEAL
Q: What are the different modes of appeal?
A:
1.
82
Ordinary appeal (Rule 40 and 41)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
a.
b.
Notice on appeal
Record on appeal
2.
3.
Petition for review (Rule 42, 43)
Appeal by certiorari(Rule 45)
Q: Distinguish the following modes of appeal.
A:
MODE OF APPEAL
Ordinary Appeal (MTC to RTC)
Rule 40
a. Notice of Appeal
b.
Record of Appeal
Ordinary Appeal (RTC to CA)
Original Jurisdiction Rule 41
a. Notice of Appeal
b.
Record of Appeal
Petition for Review (RTC to CA)
Appellate Jurisdiction Rule 42
Petition for Review (QuasiJudicial Bodies to CA)
Rule 43
PERIOD OF APPEAL
Within 15 days after notice
to the appellant of the
judgment or final order
appealed (Sec 2. Rule 40).
PERIOD OF APPEAL IF A MR
OR MNT WAS FILED
(Neypes Doctrine)
ISSUES THAT MAY BE
RAISED
Within 15 days from receipt
of the order denying motion
for reconsideration or new
trial.
Questions of fact or
mixed questions of fact
and law.
Within 30 days after notice
of the judgment or final
order (Sec 2. Rule 40).
Within 15 days after notice
to the appellant of the
judgment or final order
appealed (Sec 3. Rule 41).
Within 15 days from receipt
of the order denying motion
for reconsideration or new
trial.
Within 30 days after notice
of the judgment or final
order (Sec 3. Rule 41).
Note: appeal in habeas
corpus cases shall be taken
within 48 hours from notice
of the judgment or final
order appealed from (AM
No. 01-1-03-SC, June 19,
2001)
Within 15 days from notice
of the decision to be
reviewed or from the denial
of a MR or new trial (Sec. 1
Rule 42).
Note: The court may grant
an additional period of 15
days provided the extension
is sought:
a.
Upon proper motion;
and
b. Upon payment of the
full amount of the
docket and other lawful
fees
before
the
expiration
of
the
reglementary period.
Within 15 days from receipt
of judgment or final order or
of last publication (Sec. 4,
Rule 43).
Questions of fact or of
law or mixed question of
fact and law that has
been raised in the court
below and is within the
issues framed by the
parties (Sec. 15, Rule 44).
Questions of fact, of law,
or mixed questions of fact
and law
Within 15 days from receipt
of the order denying motion
for reconsideration or new
trial.
Within 15 days from receipt
of the order denying motion
for reconsideration or new
trial.
Questions of fact, of law,
or mixed questions of fact
and law (Sec. 3, Rule 43).
Note: The appeal shall not
stay the award, judgment,
final order unless the CA
directs otherwise (Sec. 12,
Rule 43).
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
83
UST GOLDEN NOTES 2011
Petition
for
Review
on
Certiorari
Rule 45
1. RTC to SC (Sec 2c,
Rule 41);
2. CA to SC (Sec. 1,
Rule 45);
3. Sandiganbayan to SC
(Sec. 1, Rule 45);
4. CTA en banc to SC
(Sec. 11, RA 9282;
Sec. 1 Rule 45 as
amended by AM No.
07- 7-12- SC);
5. Appeals from a
judgment or final
order in a petition
for a writ of amparo
to the SC (AM No.
07-9-12- SC); and
6. Appeals from a
judgment or final
order in a petition
for a writ of Habeas
Data (AM No. 08-116-SC).
Within 15 days from notice
of the judgment, final order
or resolution appealed from,
or within 15 days from notice
of the denial of the
petitio e s otio for new
trial
or
motion
for
reconsideration filed in due
time (Sec. 2, Rule 45).
Note: The SC may for
justifiable reason grant an
extension of 30 days only
within which to file the
petition provided:
a.
There is a motion for
extension of time duly
filed and served;
b. There is full payment of
the docket and other
lawful fees and the
deposit for costs; and
c.
The motion is filed and
served
and
the
payment
is
made
before the expiration of
the
reglementary
period (Sec. 2, Rule 45).
Within 15 days from receipt
of the order denying motion
for reconsideration or new
trial
Only questions of law
(Sec. 1, Rule 45).
Note: This fresh period rule applies Rule 40,41,42,43, and 45. Accordingly, this rule was adopted to standardize the
appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of
judgment. Obviously, the new 15 day period may be availed of only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the original appeal period provided in Rule 41. (Neypes vs. CA, GR
141524, Sept. 14, 2005)
BEFORE FINALITY OF JUDGMENT
(1) ORDINARY APPEAL
(2) PETITION FOR REVIEW
(3) PETITION FOR REVIEW ON CERTIORARI
Q: Distinguish an ordinary appeal from a petition for review.
A:
Ordinary Appeal
A matter of right
All the records are elevated from the court of origin
Notice or record on appeal is filed with the court of origin
As to duration of residual powers: Until the records are
transmitted to the appellate court.
Petition for Review
Discretionary
No records are elevated unless the court decrees it
Filed with the CA
As to duration of residual powers: Until the CA gives due
course to the petition.
Q: Distinguish Rule 45, Rule 64 and Rule 65.
A:
Review of Judgments, Final
Orders or Resolutions (Rule 64)
Petition for Certiorari(Rule 65)
Petition is based only on questions of
law.
Petition is based on questions of
law.
Petition is based on questions of
jurisdiction, that is, whether the
lower court acted without
jurisdiction or in excess of jurisdiction
or with grave abuse of discretion.
It is a mode of appeal.
It is a mode of appeal but the
petition used is Rule 65.
It is a mode of review.
Appeal by Certiorari(Rule 45)
84
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Involves the review of the judgment
final orders or resolutions of the CA,
Sandiganbayan, CTA, RTC or other
courts on the merits
Filed within 15 days from notice of
judgment, final order or resolution
appealed from.
Stays the judgment or order appealed
from
Involves review of judgments,
final orders or resolutions of
COMELEC and COA.
Note: CSC judgments, final orders or
resolutions are governed by Rule 43
Filed within 30 days from notice of
judgment, final order or
resolution sought to be reviewed.
Does not stay the execution
unless SC shall direct otherwise
upon such terms as it may deem
just.
May be directed against an
interlocutory order of a court or
where there is no appeal or any
other plain, speedy or adequate
remedy.
Filed not later than 60 days from
notice of judgment, order or
resolution appealed from.
Unless a writ of preliminary
injunction or temporary restraining
order is issued, it does not stay the
challenged proceeding
The judge, court, quasi-judicial
agency, tribunal, corporation, board,
officer or person shall be public
respondents who are impleaded in
the action.
Motion for reconsideration or for
new trial is required.
If a motion for reconsideration or
new trial is filed, another 60 days
shall be given to the petitioner (A.M.
No. 02-03-SC)
The appellant and the appellee are
the original parties to the action, and
the lower court or quasi-judicial
agency is not impleaded.
The COMELEC and COA shall be
public respondents who are
impleaded in the action.
Motion for reconsideration is not
required.
The filing of MNT or MR, if
allowed under the procedural
rules of the Commission, shall
interrupt period fixed.
The court is in the exercise of its
appellate jurisdiction and power of
review.
The court is in the exercise of its
appellate jurisdiction and power
of review.
Court exercises original jurisdiction.
Filed with the SC.
Filed with the SC.
Filed with the RTC, CA,
Sandiganbayan or COMELEC. (1991,
1998, 1999 Bar Question)
e. ISSUES TO BE RAISED ON APPEAL
Procedure: A Restatement for the Bar, pp.
445-446, 2009 ed.)
Q: What issues are to be considered in appeal?
f. PERIOD OF APPEAL
A:
GR: Only errors assigned in the brief may be
considered on appeal
XPNs:
1. Grounds not assigned as errors but affecting
the jurisdiction over the subject matter
2. Matters not assigned as errors on appeal but
are evidently plain or clerical errors within
the contemplation of law;
3. 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 interest of justice or
to avoid dispensing piecemeal justice;
4. 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;
5. Matters not assigned as errors on appeal but
closely related to an error assigned; and
6. Matters not assigned as errors on appeal but
upon which the determination of a question
properly assigned is dependent. (Riano, Civil
Q: What is the period to appeal?
A: Within 15 days from notice of the judgment or
final order appealed from.
Where record on appeal is required: Within 30 days
from notice of the judgment or final order. In
habeas corpus cases, 48 hours from notice of
judgment or final order appealed from.
Note: Where both parties are appellants, they may file
a joint record on appeal (Sec. 8, Rule 41). The period
shall be interrupted by a timely Motion for New Trial
or Motion for Reconsideration.
Q: May a period of appeal be extended?
A: Yes, under the sound discretion of the court. The
mere filing of the motion for extension of time to
perfect the appeal does not suspend the running of
the reglementary period.
Q: What is the effect if the extension of the period
to appeal is granted/denied?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
85
UST GOLDEN NOTES 2011
A: If granted, and the notice thereof is served
AFTER the expiration of the period to appeal, the
extension must be computed from the date of
notice.
Note: If no action is taken on the motion for extension,
or if it is denied after the lapse of the period to appeal,
THE RIGHT TO APPEAL IS LOST.
Q: What is the effect of judgment on those who
failed to appeal?
A:
1. As to affirmative relief – an appellee who
has himself not appealed may not obtain
from the appellate court any affirmative
relief other than what was granted in the
decision of the lower court
g. PERFECTION OF APPEAL
2. As to reversal of judgment
GR: Binding only on the parties in the appealed
case and does not affect or inure to the benefit
of those who did not join or were not made
parties to the appeal
Q: When is an appeal perfected? What is its
effect?
A:
1. Appeal by notice of appeal – perfected as
to the party upon filing of the notice of
appeal in due time and upon payment of
the appellate court docket fee.
Effect: the court loses jurisdiction
over the case upon the perfection of
the appeal filed in due time and the
expiration of the time to appeal of
the other parties
2.
Appeal by record on appeal – perfected as
to the party with respect to the subject
matter thereof upon the approval of the
record on appeal filed in due time and
upon payment of the appellate court
docket fee.
XPN: Where the rights of the parties appealing
are so interwoven and dependent on each other
as to be inseparable, in which case a reversal as
to one operates as a reversal to all.
Note: Even if the appeal was filed out of time, the
court still has jurisdiction to admit and give due course
to it, PROVIDED there are justifiable reasons (e.g. in
the exercise of the equity jurisdiction of the courts,
where a stringent application of the rule would not
serve the demands of substantial justice). This is
tantamount to a valid order granting the extension if
any is prayed for.
Q: Is the perfection of an appeal jurisdictional?
A:
GR: Yes. Perfection of appeal within the
reglementary period is jurisdictional.
Effect: The court loses jurisdiction
only over the subject matter upon
the approval of the records on
appeal filed in due time and the
expiration of the time to appeal of
the other parties
3.
Appeal by petition for review – upon the
timely filing of a petition for review and
the payment of the corresponding docket
and other lawful fees, the appeal is
deemed perfected as to the petitioner.
Effect: RTC loses jurisdiction over the
case upon the perfection of the
appeal and the expiration of the time
to appeal of the other parties.
Note: In either case, prior to the transmittal of the
original record or record on appeal to the appellate
court, the trial court may, motuproprio or on motion,
dismiss the appeal for having been taken out of time
or for non-payment of the docket and other lawful
fees on time. The court may also exercise its residual
powers.
XPN: When there has been extrinsic fraud,
accident, mistake, or excusable negligence
(FAME), resort to Petition for relief from
judgment under rule 38. (Habaluyas v. Japson,
142 SCRA 208 (1986)).
Q: What is the effect of a perfected appeal?
A:
GR: Judgment is not vacated by appeal, but is
merely stayed and may be affirmed, modified
or reversed or findings of facts or conclusions
of law may be adopted by reference.
XPN: Not applicable to civil cases under the
Rules 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, shall be
immediately executory without prejudice to a
further appeal that maybe taken therefrom.
Q: Would non- payment of docket fees result to
the dismissal of the case?
86
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
A:
GR: Payment of docket fee is jurisdictional. Without
such payment, the appellate court does not acquire
jurisdiction over the subject matter of the action
and the decision sought to be appealed from
becomes final and executory (Regalado v. Go, GR
No. 167988, February 6, 2007).
Q: Where to appeal from a judgment or final order
of a Municipal Court?
However: the rule must be qualified:
1. The failure to pay appellate court docket
fee within the reglementary period allows
only
discretionary
dismissal,
not
automatic dismissal, of the appeal;
2. Such power should be used in the
e e ise of the ou t s sou d dis etio
(Republic v. Spouses Luriz, GR No. 158992,
January 26, 2007).
Q: When should the appeal be taken?
A: An appeal from a judgment or final order of
Municipal Trial Court may be taken to the Regional
Trial Court exercising jurisdiction over the area to
which the former pertains (Section 1, Rule 40).
A:
1. An appeal may be taken within 15 days after
notice to the appellant of the judgment or
final order appeals from (Section 2, Rule 40);
2. Where a record of appeal is required, the
appellant shall file a notice of appeal and a
record on appeal within 30 days after notice
of the judgment or final order (Section 2, Rule
40).
h. APPEAL FROM JUDGMENTS OR FINAL ORDERS
OF THE MTC
Q: Discuss the procedure of appeal from decisions
of the MTC to the RTC.
A:
Appeal decision of MTC by filing notice of appeal
within 15 days or 30 days where a record on
appeal is required from receipt of judgment.
Q: How should the RTC decide an appeal from an
order of a lower court dismissing a case without
trial or those rendered without jurisdiction?
A:
1.
Copies of the notice, and record on appeal when
required, shall be served on the adverse party.
The MTC clerk transmits record to the RTC
within 15 days from perfection of appeal.
Parties are given notice that the records
have been received by the RTC.
1.
2.
Within 15 days from notice of appeal –
appellant submits memorandum to the RTC.
Within 15 da s fro re eipt of appella t’s
memorandum
–
appellee
files
his
memorandum.
Note: Failure of the appellant to file a memorandum
shall be a ground for the dismissal of the appeal.
2.
If the lower court dismissed the case without
trial on the merits, RTC may:
a) Affirm- in such case, it is a declaration of
the merits of the dismissal;
b) Affirm and the ground of dismissal is lack
of jurisdiction over the subject matter –
the action of the RTC is a mere
affirmation of the dismissal. The RTC shall
try the case on the merits as if the case
was originally filed with it;
c) Reverse – it shall remand the case for
further proceedings.
If the case was tried on the merits by the lower
court without jurisdiction over the subject
matter, the RTC shall not dismiss the case if it
has original jurisdiction, but shall decide the
case, and shall admit amended pleadings and
additional evidence (Sec. 8, Rule 40).
Q: What if the case is dismissed for lack of
jurisdiction?
A: The order of dismissal is one without prejudice
and the plaintiff may simply refile the complaint in
the court with the proper jurisdiction because:
GR: The order dismissing an action without
prejudice is not appealable (Section 1g, Rule 41)
XPN: Section 8, Rule 40 allows an appeal from an
order of the MTC dismissing a case for lack of
jurisdiction.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
87
UST GOLDEN NOTES 2011
i. APPEAL FROM JUDGMENTS OR FINAL ORDERS
OF THE RTC
Within 30 days after perfection of the appeals, the
RTC clerk shall verify the records and transmit the
same to the appellate court and shall furnish the
parties with copies of his letter of transmittal of
the records to the appellate court
Q: What are the three modes of appeal from the
decisions of the RTC?
A:
1.
2.
3.
Ordinary appeal or appeal by writ of error
– where judgment was rendered in a civil
or criminal action by the RTC in the
exercise of original jurisdiction (governed
by Rule 41, taken to the CA on questions
of fact or mixed questions of fact and
law);
Petition for review – where judgment was
rendered by the RTC in the exercise of
appellate jurisdiction (governed by Rule
42, brought to the CA on questions of
fact, of law, or mixed questions of fact
and law); or
Petition for review on certiorari – to the
SC (governed by Rule 45, elevated to the
SC only on questions of law).
Note: Rule 41 refers to appeals from RTC exercising
original jurisdiction. An appeal on pure questions of
law cannot be taken to the CA and such improper
appeal will be dismissed pursuant to Sec. 2, Rule 50
(Regalado, Remedial Law Compendium, Vol. 1, p. 526,
2007 ed.).
ORDINARY APPEAL OR APPEAL BY WRIT OF ERROR
FROM THE RTC TO THE CA
Q: What may be the subject of an appeal under
Rule 41?
A: An appeal may be taken from a judgment or final
order that completely disposes of the case or of a
particular matter therein when declared by the
Rules to be appealable (Section 1, Rule 41).
Q: When does Rule 41 on Ordinary Appeal apply?
A: Rule 41 applies to appeals from the judgment or
final orders of the RTC in the exercise of its original
jurisdiction (Section 2a, Rule 41).
Q: Discuss the procedure of appeal from decisions
RTC to the CAunder Rule 41?
A:
Appeal the decision of the RTC by filing notice of
appeal within 15 days or 30 days where a record
on appeal is required from receipt of judgment
Upon receipt of the original records and documents
and upon payment of docket fees, the clerk of court
of the CA shall docket the case and notify the parties
Within 45 days from the receipt of the notice of the
clerk of court, the appellant shall file a brief with
proof of service to the appellant
Withi
da s f o the e eipt of the appella t s
brief, the appellee shall file his own brief with proof
of service to the appellant
Within 20 days from the receipt, the appellant may
file a reply brief
Note: In petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus cases,
briefs are not filed. Instead the parties shall file their
memoranda within a non- extendible period of 30 days
from the receipt of notice that all the evidences are
already attached to the record (Sec 10, Rule 44).
Q: What is the title of the case when appealed to
the CA under Rule 41?
A: In all cases appealed to the CA under Rule 41, the
title of the case shall remain as it was in the court of
origin but the party appealing the case shall be
referred to as the appellant and the adverse party
appellee (Sec 1. Rule 44).
Q: Distinguish a brief from a memorandum.
A:
Brief
Ordinary
appeals
Memorandum
Certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases
Filed within
45 days
Filed within 30 days
Contents
specified by
rules
Shorter, briefer, only one issue
involved – No subject index or
assignment of errors, just facts and law
applicable
Copies of the notice, and record on appeal when
required, shall be served on the adverse party.
88
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: What a e the o te ts of appella t’s brief?
A: The appella t s ief shall o tai , i the o de
herein indicated, the following:
1.
2.
3.
4.
5.
6.
7.
8.
A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the
pages where they are cited;
An assignment of errors intended to be
urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
Under the heading "Statement of the
Case," a clear and concise statement of
the nature of the action, a summary of
the proceedings, the appealed rulings and
orders of the court, the nature of the
judgment and any other matters
necessary to an understanding of the
nature of the controversy, with page
references to the record;
Under the heading "Statement of Facts,"
a clear and concise statement in a
narrative form of the facts admitted by
both parties and of those in controversy,
together with the substance of the proof
relating thereto in sufficient detail to
make it clearly intelligible, with page
references to the record;
A clear and concise statement of the
issues of fact or law to be submitted to
the court for its judgment;
Under the heading "Argument," the
appella t s
a gu e ts
o
each
assignment of error with page references
to the record. The authorities relied upon
shall be cited by the page of the report at
which the case begins and the page of the
report on which the citation is found;
Under
the
heading
"Relief,"
a
specification of the order or judgment
which the appellant seeks; and
In cases not brought up by record on
appeal, the appella t s ief shall o tai ,
as an appendix, a copy of the judgment or
final order appealed from (Sec. 13, Rule
44).
Q: What are the contents of the appellee’s
ief?
A: The appellee s ief shall o tai , i the o de
herein indicated, the following:
1.
A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases
2.
3.
alphabetically arranged, textbooks and
statutes cited with references to the
pages where they are cited;
Under the heading "Statement of Facts,"
the appellee shall state that he accepts
the state e t of fa ts i the appella t s
brief, or under the heading "CounterStatement of Facts," he shall point out
such insufficiencies or inaccuracies as he
elie es e ist i the appella t s state e t
of facts with references to the pages of
the record in support thereof, but without
epetitio of atte s i the appella t s
statement of facts; and
Under the heading "Argument," the
appellee shall set forth his arguments in
the case on each assignment of error with
page references to the record. The
authorities relied on shall be cited by the
page of the report at which the case
begins and the page of the report on
which the citation is found (Sec. 14).
Q: What is the pu pose of a
appellee’s ief?
appella t’s /
A: To present to the court in a concise form the
points and question in controversy, and by fair
argument on the facts and law of the case, to assist
the court in arriving at a just and proper conclusion/
decision (De Liano v. CA (2006)).
Q: What is meant by Residual Jurisdiction of the
court?
A: The term refers to the authority of the trial court
to issue orders for the protection and preservation
of the rights of the parties.
The concept of residual jurisdiction is available at a
stage in which the court is normally deemed to
have lost jurisdiction over the case or the subject
matter involved in the appeal. There is no residual
jurisdiction to speak of where no appeal or petition
has even been filed (Fernandez v. CA, 458 SCRA
454).
Q: What are the Residual Jurisdiction/Powers
exercised by the trial court?
A:
1.
2.
Issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter litigated
by the appeal.
Approve compromise agreements by
parties after judgment has been
rendered, (there is no rule that forbids
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
89
UST GOLDEN NOTES 2011
3.
4.
5.
litigants to settle amicably even if there is
a judgment already)
Permit appeals of indigent litigants.
Order execution pending appeal in
accordance with sec. 2, rule 39.
Allow withdrawal of appeal.
4.
Note: Provided these are done prior to the
transmittal of the original record or the
record on appeal even if the appeals have
already been perfected or despite the
approval of the record on appeal (Section 9,
Rule 41).
5.
RULE 42: PETITION FOR REVIEW FROM THE RTC TO
THE CA
Q: When does Rule 42 apply?
A: Rule 42 applies to an appeal from the judgment
or final order of the RTC to the CA in cases decided
by the former in the exercise of its appellate
jurisdiction.
Q: The RTC affirmed the appealed decision of the
MTC. You are the counsel of the defeated party
and he tells you to appeal the RTC's decision.
1. What mode of appeal will you adopt?
2. Within what time and in what court
should you file your appeal?
Must be accompanied by clearly
legible duplicate originals or true
copies of the judgments or final
orders of both lower courts, certified
correct by the clerk of court of the
Regional Trial Court, the requisite
number of plain copies thereof and of
the pleadings and other material
portions of the record as would
support the allegations of the
petition.
There must be a certification against
forum shopping (Sec. 2, Rule 42).
Q: What is the effect of failure to comply with the
requirements?
A:The failure of the petitioner to comply with
any of the foregoing requirements regarding
the payment of the docket and other lawful
fees, the deposit for costs, proof of service of
the petition, and the contents of and the
documents which should accompany the
petition shall be sufficient ground for the
dismissal thereof (Sec. 3, Rule 45).
Q: Is a petition for review a matter of right?
The mode of appeal is by petition for
review under Rule 42 of the Rules of
Court.
The period of appeal is within 15 days
from notice of the decision subject of the
appeal or of the denial of a motion for
new trial or reconsideration filed in due
time to the CA. (1998 Bar Question)
A: It is not a matter of right but discretionary on the
CA. It may only be given due course if it shows on
its face that the lower court has committed an error
of fact and/or law that will warrant a reversal or
modification of the decision or judgment sought to
be reviewed or dismiss the petition if it finds that it
is patently without merit, or prosecuted manifestly
for delay, or the questions raised therein are too
unsubstantial to require consideration. (Sec. 42)
Q: What are the contents of the petition for
review?
Q: What are the contents of comment to the
petition?
A:
A:
A:
1.
2.
1.
2.
3.
90
State the full names of the parties to
the case, without impleading the
lower courts or judges thereof either
as petitioners or respondents;
Indicate the specific material dates
showing that it was filed on time;
Set forth concisely a statement of the
matters involved, the issues raised,
the specification of 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;
1.
2.
3.
State whether or not he accepts the
statement of matters involved in the
petition;
Point out the insufficiencies or
inaccuracies i petitio e s state e t of
facts and issues; and
State the reasons why the petition should
be denied or dismissed. (Sec. 5, Rule 42)
Q: Is the doctrine of residual jurisdiction applicable
to Appeals under Rule 42?
A: Yes, provided that such residual jurisdiction/
power is exercised before the CA gives due course
to the petition (Section 8, Rule 42).
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: What is the effect of an appeal to the judgment
or final order?
2.
A: The appeal, as a rule, shall stay the judgment or
final order; unless the CA, the law or the rules shall
provide otherwise.
3.
4.
Note: Civil cases decided under the Rules on Summary
Procedure shall not be stayed (Section 8b, Rule 42).
Q: Give some instances where the CA may act as a
trial court.
A:
1.
2.
3.
4.
5.
6.
7.
8.
In annulment of judgment under Secs. 5
and 6, Rule 47. Should the CA find prima
facie merit in the petition, the same shall
be given due course and summons shall
be served on the respondent, after which
trial will follow, where the procedure in
ordinary civil cases shall be observed.
When a motion for new trial is granted by
the CA, the procedure in the new trial
shall be the same as that granted by a RTC
(Sec. 4, Rule 53).
A petition for habeas corpus shall be set
for hearing (Sec. 12, Rule 102).
In petition for writs of amparo and habeas
data, a hearing can be conducted.
Under Sec. 12, Rule 124 of the Rules of
Criminal Procedure, the CA has the power
to try cases and conduct hearings, receive
evidence and perform any and all acts
necessary to resolve factual issues which
fall within its original and appellate
jurisdiction.
The CA can grant a new trial based on the
ground of newly-discovered evidence
(Sec. 14, Rule 124).
The CA under Sec. 6, Rule 46, whenever
necessary to resolve factual issues, may
conduct hearing thereon or delegate the
reception of the evidence of such issues
to any of its members or to an
appropriate agency or office.
Human Security Act. (2008 Bar Question)
Q: What are the grounds for the Court of Appeals
to dismiss an appeal?
A: Under Sec.1 Rule 50, the CA, upon its own
motion or upon the motion of the appellee an
appeal may be dismissed on the following grounds:
1.
Failure of the record on appeal to show
on its face that the appeal was taken
within the period fixed by the Rules;
5.
6.
7.
8.
9.
Failure to file the notice of appeal or the
record on appeal within the period
prescribed by the Rules;
Failure of the appellant to pay the docket
and other lawful fees as provided in
Section 5 Rule 40 and Sec. 4 of Rule 41;
Unauthorized alterations, omissions or
additions in the approved record on
appeal as provided in Sec.4 of Rule 44
Failure of the appellant to serve and file
the required number of copies of his brief
or memorandum within the time
provided by the Rules;
Absence of specific assignment of errors
i the appella t s
ief, o of page
references to the record as required in
Sec.13, paragraphs (a), (c), (d) and (f) of
Rule 44;
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;
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
The fact that the order or judgment
appealed from is not appealable (En Banc
Resolution, February 17, 1998)
Note: The grounds are discretionary upon the
appellate court. The very wording of the rule uses the
od
a i stead of shall . This i di ates that it is
only directory and not mandatory. Sound discretion
must be exercised in consonance with the tenets of
justice and fair play, keeping in mind the
circumstances obtaining in each case (Mercury Drug
Corporation vs. De Leon, G.R. No. 165622, October 17,
2008.)
RULE 45: APPEAL BY CERTIORARI TO THE SC
Q: Is the appeal under Rule 45 a matter of right?
A: An appeal or review under Rule 45 is not a
matter of right, but of sound judicial discretion with
the exception of cases where the penalty of death,
or reclusion perpetua where the an appeal is a
matter of right leaving the reviewing court without
any discretion (People v. Flores, GR No. 170565,
January 31, 2006).
Q: When does Appeal by Certiorari under Rule 45
apply?
A: Appeal by certiorari to the Supreme Court or
petition for review on certiorari applies in the
following cases:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
91
UST GOLDEN NOTES 2011
1.
2.
3.
4.
5.
6.
Appeal from a judgment or final order of
the RTC in cases where only questions of
law are raised or are involved and the
case is one decided by the said court in
the exercise of its original jurisdiction
(Section 2c, Rule 41);
Appeal from the judgment, final order or
resolutions of the Court of Appeals where
the petition shall raise only questions of
law (Section 1, Rule 45);
Appeal from the judgment, final order or
resolutions of the Sandiganbayan where
the petition shall raise only questions of
law (Section 1, Rule 45);
Appeals from the decision or ruling of the
Court of Tax Appeals en banc (Section 11,
RA 9282; Section 1, Rule 45 as amended
by AM No, 07-7-12-SC);
Appeals from a judgment or final order in
a petition for writ of amparo to the
Supreme Court which may raise questions
of fact, questions of law or of both fact
and law (AM No. 08-1-16-SC, Rule on the
Writ of Amparo (Section19) October 24,
2007);
Appeal from judgment or final order in a
petition for the writ of Habeas Data. The
appeal may raise questions of fact or law
or both (AM No. 08-1-16-SC, Rule on the
Writ of Habeas Data (Section 19) February
2, 2008).
Q: When is there a question of law? How does it
differ from a question of fact?
A: There is a question of law when the doubt or
difference arises as to what the law is on a certain
set of facts.
A question of fact on the other hand is when the
doubt or difference arises as to the truth or
falsehood of the facts alleged.
but only from judgments and final orders of the
court enumerated in Sec. 1 thereof. Appeals from
judgments and final orders of quasi-judicial
agencies are now required to be brought to the CA
on a verified petition for review, under the
requirements and conditions in Rule 43 which was
precisely formulated and adopted to provide for a
uniform rule of appellate procedure for quasijudicial agencies. (Fabian v. Desierto, G.R. No.
129742, Sept. 16, 1998)
Q: Is the mode of appeal prescribed under Rule 45
applicable to criminal cases?
A: Yes. Except in criminal cases where the penalty
imposed is death, reclusion perpetua or life
imprisonment (Section 9, Rule 45).
Q: Can a case decided by the RTC in the exercise of
its appellate jurisdiction be appealed by way of a
petition for review on certiorari under Rule 45?
A: No, where a case is decided by the RTC in the
exercise of its appellate jurisdiction, regardless of
whether the appellant raises questions of fact, of
law or mixed questions of fact and law, the appeal
shall be brought to the CA by filing a petition for
review under Rule 42 (Quezon City v. ABS-CBN
Broadcasting Corporation, GR No. 166408 October
6, 2008).
Q: Discuss the procedure for filing an appeal by
certiorari.
A:
RTC, Sandiganbayan or RTC renders decision.
Aggrieved party files a petition for review on
certiorari within 15 days from notice of final
judgment or order of lower court or notice of denial
of motion for reconsideration or new trial.
Q: May a petition for review on certiorari include
prayer for the grant of provisional remedies?
A: The petition for review on certiorari may include
an application for a writ of preliminary injunction or
other provisional remedies. The petitioner may also
seek the same provisional remedies by verified
motion filed in the same action or proceeding at
any time during its pendency (Sec. 1, Rule 45 as
amended by A.M. No. 07-7-12-SC).
Q: Does Rule 45 include appeals from quasijudicial bodies?
A: No. Under the present Rule 45, appeals may be
brought through a petition for review on certiorari
92
Petitioner serves copies on adverse parties and the
lower court and pays the corresponding docket fees.
SC may either dismiss the petition, or require the
appellee to comment.
If given due course, parties may submit memoranda.
SC may affirm, reverse, or modify judgment of the
lower court.
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
With the SC (Section 5 (1)
Article
VIII,
1987
Constitution).
Within 20 days from the receipt, the appellant may
file a reply brief
Note: the petition shall raise only questions of law,
which must be distinctly set forth. Appeals to the SC
are made only by verified petitions for review on
certiorari,
Q: When may the SC, on its own initiative, deny
the petition for review?
A:
1.
2.
3.
XPN: appeals from judgements of the RTC in criminal
cases where the penalty imposed is life imprisonment
or reclusion perpetua (elevated by ordinary appeal), or
death penalty (subject to automatic review).
The appeal is without merit;
Prosecuted manifestly for delay; or
That the questions raised therein are too
unsubstantial to require consideration
(sec.5, Rule 45)
Q: Distinguish Certiorari under Rule 45 and
Certiorari under Rule 65.
j. APPEAL FROM JUDGMENT OR FINAL ORDERS OF
THE CA
A:
Q: May a reversal of judgment benefit a party who
did not join or was not made a party to the
appeal?
CERTIORARI (RULE 45)
Mode of appeal which
seeks to review final
judgments and orders
(Section 2, Rule 41)
Raises questions of law
It shall be filed within
15 days from notice of
judgment or final order
appealed from
Does not require prior
motion
for
reconsideration
Stays the judgment
sought to be appealed
The parties are the
original parties with the
appealing party as the
petitioner
and
the
adverse
party
as
respondent
without
impleading the lower
court or its judge
(Section 4a, Rule 45).
Filed with the SC
(Section 1, Rule 45).
CERTIORARI (RULE 65)
Special civil action; an
original action (Rule 65). It
may be directed against an
interlocutory order or
matters where no appeal
may be taken from (Section
1, Rule 41)
Raises
questions
of
jurisdiction
It shall be filed not later
than 60 days from notice of
judgment,
order
or
resolution sought to be
assailed and in case a MR
or motion for new trial is
timely filed, whether such
motion is required or not,
the 60 day period shall be
counted from the notice of
denial of said motion
Requires as a general rule,
a prior MR
Does
not
stay
the
judgment or order subject
of the petition unless
enjoined or restrained.
The tribunal, board, officer
exercising judicial or quasijudicial
functions
is
impleaded as respondent
(Section 5 Rule 65).
Filed with the RTC (Section
21, BP 129);
With the CA (Section 9, BP
129);
A:
GR: The reversal of a judgment on appeal is
generally binding only on the parties in the
appealed case and does not affect or inure to
the benefit of those who did not join or were
not made parties to the appeal.
XPN: Where the rights of such parties are so
interwoven and dependent on each other as to
be inseparable due to community of interests.
Q: When may the SC review the findings of fact of
the CA?
A:
GR: CA s fi di gs of fa t a e fi al a d o lusi e
and cannot be reviewed on appeal to the SC.
The SC shall not entertain questions of fact
because its jurisdiction is limited to reviewing
errors of law (Natividad v. MTRCB, GR No.
161422, December 13, 2007).
XPNs:
1. The conclusion of the CA is grounded
entirely on speculations, surmises
and conjectures;
2. The inference made is manifestly
mistaken, absurd or impossible;
3. There is grave abuse of discretion;
4. The judgment is based on
misapprehension of facts;
5. The findings of facts are conflicting;
6. The CA in making its findings went
beyond the issues of the case and
the same is contrary to the
admissions of both appellant and
appellee;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
93
UST GOLDEN NOTES 2011
7.
The findings are contrary to those of
the trial court;
8. The findings of facts are conclusions
without citation of specific evidence
on which they are based;
9. The facts set forth in the petition as
ell as i the petitio e s ai a d
reply briefs are not disputed by the
respondents;
10. The findings of fact of the CA are
premised on the supposed absence
of evidence and contradicted by the
evidence on record; or
11. Those filed under Writs of amparo,
habeas data, or kalikasan.
k. APPEAL FROM JUDGMENTS OR FINAL ORDERS
OF THE CTA
Q: Where should the appeal from the decision of
the CTA en banc be taken?
A: A party adversely affected by a decision or ruling
of the CTA en banc may file with the SC a verified
petition for review on certiorari pursuant to Rule 45
(Sec. 12, R.A. 9282; A.M. No. 07-7-12-SC).
Q: Melissa filed with the BIR a complaint for
refund of taxes paid, but it was not acted upon.
So, she filed a similar complaint with the CTA
raffled to one of its divisions. Melissa's complaint
was dismissed. Thus, she filed with the CA a
petition for certiorari under Rule 65. Does the CA
have jurisdiction over Melissa's petition?
A: No. A decision of a division of the CTA is
appealable within 15 days to the CTA en banc. On
the other hand, a party adversely affected by a
decision or ruling of the CTA en banc may file with
the SC a verified petition for review on certiorari
pursuant to Rule 45 of the Rules of Court.
R.A. 9282 expanded the jurisdiction of the CTA and
elevated the same to the level of a collegiate court
equivalent to the rank of the CA. Hence, the CA no
longer has jurisdiction to review the decisions of
the CTA en banc. (2006 Bar Question)
l. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE COA
m. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE COMELEC
n. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE CSC
Q: What is the remedy of a party aggrieved by the
decision of the COMELEC, COA and CSC?
A: A judgment, resolution or final order of the
COMELEC and the COA may be brought by the
aggrieved party to the SC on certiorari under Rule
65 by filing the petition within 30 days from notice
(Sec. 2, Rule 64).
On the other hand, judgments, final orders or
resolutions of the CSC may be taken to the CA
under Rule 43 of the Rules of Court (Sec. 1, 3 Rule
43).
o. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE OMBUDSMAN
Q: Does the CA have jurisdiction to review the
decisions in criminal and administrative cases of
the Ombudsman?
A: It depends
1.
In administrative disciplinary cases, the
rulings of the Office of the Ombudsman
are appealable to the CA under Rule 43.
Note: The provision of Section 27 of RA 6770 (The
Ombudsman Act of 1987) insofar as it allowed a
direct appeal to the Supreme Court was declared
unconstitutional as it increased the appellate
jurisdiction of the SC without the advice and
concurrence of the Court (Fabian v. Deseirto, 356
SCRA 787).
2.
In criminal cases, the ruling of the
Ombudsman shall be elevated to the SC
by way of Rule 65. Where the findings of
the ombudsman on the existence of
probable cause in criminal cases is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction, the
aggrieved party may file a petition for
certiorari with the SC under Rule 65
(Enemecio vs. Office of the Ombudsman,
419 SCRA 82)
Q: What is the remedy of a party aggrieved by the
decision of the Sandiganbayan?
A: Decisions and final orders of the Sandiganbayan
shall be appealable to the SC by way of certiorari
under Rule 45 raising pure questions of law (Section
1, Rule 45).
p. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE NLRC
Q: What is the remedy of a party aggrieved by the
decision of the NLRC?
A: The remedy is to promptly move for the
reconsideration of the decision and if denied, to
94
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
timely file a special civil action of certiorari under
Rule 65 within 60 days from notice of the decision.
In observance of the doctrine of hierarchy of courts,
the petition for certiorari should be filed in the CA
(St. Martin Funeral Homes vs. NLRC, G.R. No.
130866, September 16, 1998). If filed with SC it shall
be dismissed instead of referring the action to the
CA (A.M. No. 99-2-01-SC).
Note: Those judgments and final orders or resolutions
of the Employees Compensation Commission should
be brought to the CA through a petition for review
under Rule 43.
q. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF QUASI- JUDICIAL AGENCIES
Q: What is a quasi-judicial agency?
A: 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.
Q: What are the agencies included under Rule 43?
A:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
Civil Service Commission;
Central Board of Assessment Appeals;
Securities and Exchange Commission;
Office of the President;
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;
Department of Agrarian Reform under
R.A. 6657;
GSIS;
Employee Compensation Commission;
Agricultural Inventions Board;
Insurance Commission;
Philippine Atomic Energy Commission;
Board of Investments;
Construction
Industry
Arbitration
Commission; and
Voluntary Arbitrators authorized by law
(Sec. 1 Rule 43).
Note: The office of the Prosecutor is NOT a quasijudicial body and its action approving the filing of
information is not appealable to the CA under Rule 43.
Q: Where should the judgments and final orders of
quasi- judicial bodies be appealed?
A: Appeals from judgment and final orders of quasijudicial bodies/ agencies enumerated in Rule 43 are
now required to be brought to the CA under the
requirements and conditions set forth in Rule 43
(Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128).
Q: What issues may be raised on appeal?
A: The appeal under Rule 43 may raise issues
involving questions of fact, of law or mixed
questions of fact and law (Section 3, Rule 43).
Q: What are the contents of comment to the
petition and when must it be filed?
A: The comment shall be filed within 10 days from
notice in 7 legible copies and accompanied by
clearly legible certified true copies of such material
portions of the record referred to therein together
with other supporting papers.
The comment shall:
1. Point out the insufficiencies or
i a u a ies i petitio e s state e t of
facts and issues; and
2. State the reasons why the petition should
be denied or dismissed. (Sec. 9 Rule 43)
Note: The appellate court may also require the filing of
a reply, but further submissions are governed by the
resolution in AM No. 99-2-04.
Q; What is the effect of the appeal on the award,
judgment, final order or resolution?
A: The appeal shall not stay the award, judgment,
final order or resolution sought to be reviewed
unless the CA shall direct otherwise upon such
terms as it may deem such (Section 12, Rule 43).
Q: What is the remedy of a party aggrieved by the
decision of a Quasi-judicial Agency?
A: Within 15 days from:
1. Notice of the award, judgment, final order
or resolution; or
2. Date of publication, if publication is
required by law for its effectivity; or
3. De ial of petitio e s MNT o M‘, the
aggrieved party must file a verified
petition for review under rule 43 in 7
legible copies with the CA. Furnish a copy
to the lower court and adverse party. The
appeal may involve questions of fact, of
law, or mixed questions of fact and law.
Q: Is extension of time to file petition for review
allowed?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
95
UST GOLDEN NOTES 2011
A: Yes. Upon proper motion and the payment of the
full amount of the docket fee before the expiration
of the reglementary period, the CA may grant
additional period of 15 days only within which to
file a petition for review. No further extension shall
be granted except for the most compelling reason
and in no case to exceed 15 days. (Sec. 4, Rule 43)
Q: Distinguish appeal from RTC as appellate court
under Rule 42 and appeal from quasi-judicial
agencies under Rule 43.
A:
RTC as
Appellate
Court (Rule
42)
Appeal from Quasi-judicial agencies
(Rule 43)
Decision is
stayed by an
appeal.
GR:
Decision
is
immediately
executory. It is not stayed by an
appeal
XPN: CA shall direct otherwise upon
such terms as it may deem just
Factual
findings not
conclusive to
CA.
Factual findings are conclusive upon
CA if supported by substantial
evidence.
Q: Is Rule 43 applicable where the resolution was
issued by a quasi-judicial agency with grave abuse
of discretion?
A: No, Rule 43 is not applicable where the petition
contains an allegation that the challenged
resolution is patently illegal and was issued with
g a e a use of dis etio a d e o d espo de t s
jurisdiction. The appropriate remedy is Rule 65 on
certiorari.
Q: When is the withdrawal of an appeal a matter
of right?
A: As a matter of right, appellant may withdraw his
appeal at any time before the filing of the
appellee s ief. The eafte , it is i the dis etio of
the court.
AFTER FINALITY OF JUDGMENT
3. RELIEF FROM JUDGMENTS, ORDERS AND OTHER
PROCEEDINGS
Q: What is the nature of petition for relief from
judgment? What is its purpose?
A: It is a legal remedy whereby a party seeks to set
aside a judgment rendered against him by a court
whenever he was unjustly deprived of a hearing or
was prevented from taking an appeal because of
fraud, accident, mistake or excusable neglect
96
(Quelnan v. VHF Philippines, G.R. No. 138500, Sept.
16, 2005).
Q: Purcon was hired as a seaman, he was
repatriated due to his ailment. After undergoing
some medications, he went back to work but was
not re-hired due to lack of vacany. Purcon then
filed a case for reimbursment of medical expenses
with the NLRC. The LA dismissed the complaint for
lack of merit. A memorandum of appeal with the
NLRC was filed but was dismissed. Petitioner filed
petition for review on certiorari under Rule 65
with the CA which was also denied, the MR was
likewise denied. This prompted the petitioner to
file with the SC a petition for review on certiorari
under Rule 45 which was denied. As a last
recourse, petitioner filed a petition for relief from
judgment. Whether or not the petitioner can avail
of a petition for relief from judgment after the
denial of the SC of his petition for review?
A: No. A petition for relief from judgment is not an
available remedy in the Court of Appeals and
Supreme Court. It should be filed with the same
court which rendered the decision. While Rule 38
uses the phrase "any court," it refers only to
Municipal/Metropolitan and Regional Trial Courts.
If a petition for relief from judgment is not among
the remedies available in the CA, with more reason
that this remedy cannot be availed of in the
Supreme Court.
This Court entertains only
questions of law. A petition for relief raises
questions of facts on fraud, accident, mistake, or
excusable negligence, which are beyond the
concerns of this Court (Purcon v. MRM Philippines
Inc., GR No. 182718, September 26, 2008).
Q:
Distinguish
motion
for
new
trial/reconsideration from petition for relief from
judgment.
A:
Motion for New Trial /
Reconsideration
Available before judgment
becomes final and
executory.
Petition for Relief from
Judgment
Available after judgment has
become final and executory.
Applies to judgments or
final orders only.
Applies to judgments, final
orders and other
proceedings:
e.g. land registration; special
proceedings; order of
execution.
Grounds for motion for
new trial:
1. Fraud,
accident,
mistake or excusable
negligence;
2. Newly
discovered
Grounds:
Fraud, accident, mistake or
excusable negligence.
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Note: The bond is conditioned that if the petition is
dismissed or the petitioner fails on the trial of the case
upon its merits, he will pay the adverse party all
damages and costs that may be awarded to him by
reason of issuance of such injunction or the other
proceedings following the petition.
evidence
Grounds for motion for
reconsideration: the
damages awarded are
excessive; that the
evidence is insufficient to
justify the decision or final
order, or that the decision
or final order is contrary to
law (Sec. 1).
Filed within the time to
appeal.
The order of denial is not
appealable. The remedy is
to appeal from judgment
or final order.
Legal remedy.
Motion need not be
verified.
a. GROUNDS FOR AVAILING OF THE REMEDY
Q: What are the grounds for petition for relief?
Filed within 60 days from
knowledge of the judgment
and within 6 months from
entry of judgment(1990 Bar
Question)
The order of denial is not
appealable; the remedy is
appropriate special civil
action under Rule 65
Equitable remedy.
A:
1.
A judgment or final order is entered,
or any other proceeding is thereafter
taken against a party in any court
through fraud, accident, mistake, or
excusable negligence (Sec. 1, Rule
38); or
2.
The petitioner has been prevented from
taking an appeal by fraud, accident,
mistake, or excusable negligence (Sec. 2,
Rule 38).
Petition must be verified.
Note: A party who has filed a timely motion for new
trial cannot file a petition for relief after the former is
denied. The two remedies are exclusive of one
another. The remedy is to appeal from the judgment
(Section 9,Rule 38; Francisco v. Puno, 108 SCRA 427).
Q: Where should the petition be filed?
A:
1.
Q: Who may file the petition for relief from
judgment?
A: A petition for relief from judgment together with
a motion for new trial and a motion for
reconsideration are remedies available only to
parties in the proceedings where the assailed
judgment is rendered. 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. CA, 470 SCRA 697)
Q: What are the duties of the court after an
answer to the petition has been filed
A: After the hearing and the court finds the
allegations therein not true, it shall dismiss the
petition.
If the allegations are true, the court shall set aside
the judgment, final order or proceeding complained
of. (Sec. 6, Rule 38)
Q: Is the remedy of preliminary injunction
available pending the resolution of the petition for
relief?
A: Yes. The court may grant such preliminary
injunction as may be necessary for the preservation
of the rights of the parties upon the filing of a bond
(Sec. 5, Rule 38).
2.
If the petition is filed because of the first
ground, the petition shall be filed in such
court and in the same case (not in
another or higher court). The petition
shall pray that the judgment, order or
proceeding be set aside (Sec. 1, Rule 38).
If the petition is filed under the second
ground, the petition shall likewise be filed
in such court and in the same case (not in
another or higher court) but the prayer
this time is that the appeal be given due
course (Sec. 2, Rule 38)
b. TIME TO FILE PETITION
Q: When should the petition for relief be filed?
A:
1.
2.
Within sixty (60) days after the petitioner
learns of the judgment, final order, or
other proceeding to be set aside; and
Not more than six (6) months from entry
of such judgment, order or other
proceeding (Sec. 3).
Note: These two periods must concur and are also not
extendible and never interrupted (Riano, Civil
Procedure: A Restatement for the Bar, p. 479, 2009
ed.).
Q: May a defendant who has been declared in
default right away avail of a petition for relief from
the judgment subsequently rendered in the case?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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UST GOLDEN NOTES 2011
A: No. The remedy of petition for relief from
judgment is available only when the judgment or
order in question is already final and executory, i.e.,
no longer appealable. As an extraordinary remedy,
it may be availed only in exceptional cases where
no other remedy is available. (2007 Bar Question)
c. CONTENTS OF THE PETITION
Q: What is the form and contents of the petition
for relief?
remedies are no longer available through no fault of
the petitioner (Sec. 1, Rule 47).
Q: Who may avail this remedy?
A: A person need not be a 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 he
would be adversely affected thereby (Islamic
Da’ ah Cou il . CA, G.R. No. 80892, Sept. 29,
1989).
A:
1.
2.
3.
The petition for relief must be verified;
It must be supported by affidavit showing
the FAME relied upon; and
The affidavit of merit accompanying the
petition must also show facts constituting
the petitio e s good o su sta tial ause
of action or defense.
Note: An affidavit of merit serves as the jurisdictional
basis for the court to entertain a petition for relief.
However, it is not a fatal defect to warrant a denial of
the petition, so long as the facts required to be set out
also appear in the verified petition.
Q: When shall the court issue an order to answer?
A:When 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
from the receipt thereof (Sec. 4, Rule 38).
The extraordinary action to annul a final judgment
is restricted to the grounds provided by law to
prevent it from being used by a losing party to
make a mockery of a duly promulgated decision
that has long become final and executory.
Q: Where should the petition be filed?
A:
Judgments of RTC
Filed with the CA
Basis – It has exclusive
original jurisdiction over
said action under Sec. 9
(2), BP 129
CA may dismiss the case
outright; it has the
discretion on whether or
not to entertain the
petition.
Judgments of MTC
Filed with the RTC
Basis – RTC as a court of
general jurisdiction
under Sec. 19 (6), BP 129
RTC has no such
discretion. It is required
to consider it as an
ordinary civil action.
a. GROUNDS FOR ANNULMENT
4. ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
Q: What are the grounds for the annulment of
judgment of the RTC?
Q: What is annulment of judgment?
A:
A: It is a remedy in law independent of the case
where the judgment sought to be annulled was
rendered. The purpose of such action is to have the
final and executor judgment set aside so that there
will be renewal of litigation.
1.
2.
Note: A co-equal court cannot annul the final
judgment of a similar court. CA has exclusive
jurisdiction over actions for annulment of judgments of
RTC. An action to annul a judgment or final order of
MTC shall be filed in the RTC having jurisdiction in the
former and it shall be treated as an ordinary civil
action. (Secs. 1 &10, Rule 47).
Q: When may it be availed of?
A: The remedy of annulment of judgment may be
availed of when the ordinary remedies of new trial,
appeal, petition for relief or other appropriate
98
3.
Extrinsic fraud or collateral fraud – not a
valid ground if it was availed of, or could
have been availed of in a motion for new
trial or petition for relief.
Lack of jurisdiction over the subject
matter and over the person – May be
barred by estoppels by laches, which is
that failure to do something which should
be done or to claim or enforce a right at a
proper time or a neglect to do something
which one should do or to seek or enforce
a right at a proper time. (1998 Bar
Question)
Denial of due process (Alaban v. CA, G.R.
No. 156021, Sept. 23, 2005).
Q: What is extrinsic fraud?
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
A: Fraud is regarded as extrinsic where it prevents a
party from having a trial or from preventing a party
from having a trial or from presenting his entire
case to the court, or where it operates upon
matters pertaining not to the judgment itself but to
the manner in which it is procured (Alaban v. CA,
GR no. 156021, September 23, 2005).
amount of the dishonored check. The trial court
ruled in favor of Jenny. Allied remitted to the
she iff a a age ’s he k a ou ting to P800,000
da
o Rhea’s a ou t hi h as dul e ei ed
by Jenny. Rhea filed a petition in the CA seeking to
a ul a d set aside the t ial ou t’s de isio o the
ground of extrinsic fraud. The appellate court
g a ted Rhea’s petitio . Is the CA o rect?
Q: What is meant by lack of jurisdiction?
A: Lack of jurisdiction as a ground for annulment of
judgment refers to either lack of jurisdiction over
the person of the defending party or over the
subject matter of the claim.
b. PERIOD TO FILE ACTION
Q: What is the period to file an action?
A:
1.
2.
If based on extrinsic fraud, the action
must be filed within four (4) years from its
discovery.
If based on lack of jurisdiction, the action
must be brought before the action is
barred by laches or estoppel (Sec. 2, Rule
47).
c. EFFECTS OF JUDGMENTS OF ANNULMENT
Q: What is the effect of a judgment of annulment?
A: If based on lack of jurisdiction- It shall have the
effect of setting aside the questioned judgment or
final order and rendering the same null and void
but the judgment of annulment is without prejudice
to the refilling of the original action in the proper
court (Sec.7, Rule 47)
Note: The prescriptive period for the refilling of the
action shall be deemed suspended from the filing of
such original action until the finality of the judgment of
annulment. But shall not however, be suspended
where the extrinsic fraud is attributable to the plaintiff
in the original action (Sec. 8, Rule 47).
If based on extrinsic fraud- The court, upon motion,
may order the trial court to try the case as if a
motion for new trial was granted (Sec. 9, Rule 47).
Q: Rhea took out a loan of P1 Million from Jenny.
To secure the loan, Rhea issued Jenny an Allied
check in the amount of P750,000 which, however,
was dishonored due to a material alteration. Rhea
then remitted P600,000 to Jenny as partial
payment of the loan with the balance payable at a
later date. Prior to the due date for the payment
of the balance, Jenny filed an action for a sum of
money and damages against Allied for the full
A: Yes. Annulment of judgment is a remedy in law
independent of the case where the judgment
sought to be annulled is promulgated. It can be
filed by one who was not a party to the case in
which the assailed judgment was rendered. Here,
Rhea may avail of the remedy of annulment of
judgment under Rule 47. The ordinary remedies of
new trial, appeal and petition for relief were not
available to her for the simple reason that she was
not made a party to the suit against Allied
(Villanueva v. Nite, G.R. No. 148211, July 25, 2006).
5. COLLATERAL ATTACK OF JUDGMENTS
Q: What is a collateral attack on judgment?
A: It is made 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 such
judgment has no jurisdiction (Co vs. Court of
Appeals, 196 SCRA 705).
Q. EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS
Q: What is execution?
A: It is a remedy provided by law for the
enforcement or satisfaction of a final judgment.
1. DIFFERENCE BETWEEN FINALITY OF JUDGMENT
FOR PURPOSES OF APPEAL; FOR PURPOSES OF
EXECUTION
Q: What is meant by final judgment?
A:
1.
The te
fi al he used to des i e a
judgment may be used in two senses. In
the first, it refers to a judgment that
disposes of a case in a manner that leaves
nothing more to be done by the court in
respect thereto. In this sense, a final
judgment is distinguished from an
interlocutory order which does not finally
terminate or dispose of the case (Rudecon
Management Corp. vs. Singson, 454 SCRA
612).
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
99
UST GOLDEN NOTES 2011
2.
I a othe se se, the o d fi al
a
refer to a judgment that is no longer
appealable and is already capable of
being executed because the period for
appeal has elapsed without a party having
perfected an appeal or if there has been
appeal, it has already been resolved by a
highest possible tribunal (PCGG vs.
Sandiganbayan, 455 SCRA 526). In this
sense, the judgment is commonly
referred to as one that is final and
executory.
1.
Note: Once a judgment becomes final and
executory, the prevailing party can have it
executed as a matter of right, and the
issuance of a writ of execution becomes the
ministerial duty of the court. Once a
decision becomes final and executory, it is
the ministerial duty of the presiding judge to
issue a writ of execution except in certain
cases, as when subsequent events would
render execution of judgment unjust
(Mangahas vs. Paredes, GR 157866, Feb. 14,
2007).
Q: Distinguish final judgments for purposes of
appeal from final judgments for purposes of
execution.
2.
A:
Final Judgments for
purposes of appeal
Final Judgments for
purposes of execution
Dispose of, adjudicate, or
determine the right of the
parties.
Becomes final and
executory by operation
of law.
After lapse of period to
appeal and no appeal
was perfected, no
further action can be
had.
Execution of judgment a
matter of right.
Still subject to appeal
Execution of judgment not
a matter of right.
The judgment has become final and
executory(Section 1, Rule 39);
3.
4.
Judgment debtor has renounced or
waived his right to appeal;
The period for appeal has lapsed without
an appeal having been filed;
Having been filed, the appeal has been
resolved and the records of the case have
been returned to the court of origin
(Florendo v. Paramount Insurance Corp,
now MAA General Insurance Inc., GR No.
167976, January 20, 2010).
Q: May the court which rendered the judgment
refuse to issue writ of execution?
A:
2. WHEN EXECUTION SHALL ISSUE
a. AS A MATTER OF RIGHT
Q: When shall execution be issued?
A: Execution is a matter of right upon the expiration
of the period to appeal and no appeal was
perfected from a judgment or order that disposes
of the action or proceeding (Sec. 1, Rule 39)
GR: Execution of judgment is a matter of right
on the part of the winning party. The court
cannot refuse execution.
XPN:
1. When the judgment has already been
executed by the voluntary compliance
thereof by the parties (Cunanan v. CA,
G.R. No. L-25511, Sept. 28, 1968);
Note: This is a situation where there is a
satisfaction of the judgment without need
for its execution by the court.
Q: How is an execution issued?
A: Execution shall issue upon motion. Therefore,
there is a need to file a motion for the issuance of a
writ of execution. Even in judgments which are
immediately executory, there must be a motion to
that effect and a hearing called for that purpose.
Also, under SC circular no. 24-94, a motion for the
issuance of a writ of execution must contain a
notice to the adverse party (Lou vs. Siapno, 335
SCRA 181 and Pallada vs. RTC of Kalibo, Aklan, Br.1,
304 SCRA 440)
2.
Note: The parties, despite the existence of a
judgment, are at liberty to novate a
judgment by entering into a compromise. A
compromise is a contract recognized by
substantive law (Art. 2028, NCC).
3.
Q: When is an execution a matter of right?
4.
A: Execution will issue as a matter of right when:
100
When the judgment has been novated by
the parties (Dormitorio v. Fernandez, G.R.
No. L-25897, Aug. 21, 1976);
When a petition for relief is filed and a
preliminary injunction is granted in
accordance with Sec. 5, Rule 38;
When the judgment sought to be
executed is conditional (Co Unjieng v.
HijosMabalacat Sugar Co., G.R. No. L-
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
5.
6.
7.
32644, Oct. 4, 1930) or is incomplete (Del
Rosario v. Villegas, G.R. No. L-25726, Nov.
22, 1926);
When facts and circumstances transpire
which would render execution inequitable
or unjust (Bacharach Corp. v. CA, G.R. No.
128349, Sept. 25, 1998);
When execution is sought more than 5
years from its entry without the judgment
having been revived;
When execution is sought against
property exempt from execution under
Sec. 13, Rule 39; or When the refusal to
execute the judgment.
1.
2.
3.
4.
Q: Where should you file an application for
discretionary execution?
A:
1.
b. AS A MATTER OF DISCRETION
Q: When is execution discretionary?
A:
1.
2.
3.
4.
5.
Execution pending appeal; and
While trial court has jurisdiction over the
case and is in possession of either the
original record or record on appeal;
When trial court has lost jurisdiction but
has not transmitted records of the case to
the appellate court; and
When trial court has lost jurisdiction and
has transmitted records (motion for
execution pending appeal with appellate
court).
Execution of several, separate or partial
judgment(Florendo
v.
Paramount
Insurance Corp, now MAA General
Insurance Inc., GR No. 167976, January
20, 2010)..
Note: As su h e eptio , the ou t s dis etio i
allowing it must be strictly construed and firmly
grounded on the existence of good reasons.
Good easo s, has ee held, to o sist of
compelling circumstances that justify immediate
execution lest the judgment becomes illusory.
Circumstances must be superior, outweighing the
injury or damages that might result should the
losing party secure a reversal of the judgment.
Lesser reasons would make of execution pending
appeal, instead of an instrument of solicitude and
justice, a tool of oppression and inequity
(Florendov.
ParamountInsurance
Corp.
(nowrenamed MAA General Insurance Inc.), G.R.
No. 167976, Jan. 20, 2010).
Q: What are the requisites for discretionary
execution?
A:
There must be a motion filed by the
prevailing party with notice to the
adverse party;
There must be a hearing of the motion for
discretionary execution;
There must be good reasons to justify the
discretionary execution; and
The good reasons must be stated in a
special order (Sec. 2, Rule 39)
a.
b.
2.
The motion for discretionary execution
shall be filed with the trial court:
While it has jurisdiction over the case and
While it is in possession of either the
original record or the record on appeal; or
After the trial court has lost jurisdiction,
the motion for execution pending appeal
may be filed in the appellate court
(Bangkok Republic Company Limited vs.
Lee, G.R. No. 159806, January 20, 2006).
Q: What is the remedy where the judgment
subject to discretionary execution is reversed or
annulled?
A: 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).
Q: In a complaint filed by Granger for rescission
and damages, the RTC ruled against JP Latex,
defendant. On Aug. 5, 2006, Granger moved for
the execution pending appeal of the decision.
Upon receipt of the decision, JP Latex filed a
motion for reconsideration (MR). The RTC granted
the e e utio pe di g appeal ithout a ti g o
the motion for reconsideration. Is the order of the
trial court correct?
A: No. Discretionary execution is allowed only when
the period to appeal has commenced but before
the trial court loses jurisdiction over the case. The
period to appeal where a motion for
reconsideration has been filed commences only
upon the receipt of the order disposing of the MR.
The pendency of a MR, therefore, prevents the
running of the period to appeal.
The MR filed by JP Latex had not been acted upon
by the RTC before it ruled on the motion for
e e utio pe di g appeal. The pe de
of the
MR has prevented the period to appeal from even
commencing. The period within which a party may
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
101
UST GOLDEN NOTES 2011
move for an execution pe di g appeal of the ‘TC s
decision has not yet started. Thus, where there is
pending MR, an order of execution pending appeal
is improper and premature. (JP Latex Technology,
Inc. v. Ballons Granger Balloons, Inc., et. al., G.R.
No. 177121, Mar. 16, 2009)
A: It may be stayed upon approval by the proper
court of a sufficient supersedeas bond filed by the
party against whom execution 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 (Sec. 3 Rule 39).
Q: How may a discretionary execution be stayed?
3. HOW JUDGMENT IS EXECUTED
Q: How can a judgment be executed?
A:
Judgment is executed by motion within 5 years
from date of its entry
Execution is a matter of
right after expiration of
period to appeal and no
appeal is perfected.
Discretionary execution
upon good reasons
stated in a special order
after due hearing.
If the winning party does not
move for execution within 5
years but before 10 years from
the date of entry of judgment,
the same can only be revived by
means of new action / petition.
Sheriff executes writ of execution
Losing party is made to indemnify thru:
1. Payment with interest;
2. Levy and sale of personal property;
3. Levy and sale of real property;
4. Delivery of personal and/or real property.
Note: 5 and 10 year periods not applicable to judgment for support and special proceedings.
a. EXECUTION BY MOTION OR BY INDEPENDENT
ACTION
Q: What are the modes of execution of judgment?
A:
a.
b.
Execution by motion-if the enforcement
of the judgment is sought within 5 years
from the date of its entry; and
Execution by independent action -if the
five year period has elapsed and before it
is barred by statute of limitations (Sec. 6,
Rule 39)
Q: When is there a need to file an independent
action for execution?
A: There is a need for the prevailing party to file an
independent action for the revival of the judgment
before the action is barred by statute of limitations
when a writ of execution is issued by motion of the
102
prevailing party after 5 years from the date of entry
of judgment, such motion is considered null and
void (Tag Fibers, Inc. vs. NLRC, 344 SCRA 29; Terry
vs. People, 314 SCRA 669)
Q: Can execution be effected by motion after five
years?
A:
GR:No, execution of a judgment can no longer be
effected after 5 years. The remedy would be to file
an independent action for the revival of the
judgment.
XPNs: The court in certain instances allowed
execution of the judgment by mere motion despite
the lapse of the 5 year period. In instances where
the delay in the execution of the judgment were
through causes attributable to the judgment debtor
or when the delay is incurred for his benefit.
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: What is revival of judgment?
A: This means that from the date of the finality of
judgment, no motion was filed for the execution of
said judgment, thus the need for its enforcement by
action.
Q: When should the action for revival of judgment
be filed?
A: The action to revive a judgment must be filed
within 10 years from the date of judgment became
final because an action to enforce a judgment
prescribes in 10 years from the finality of the
judgment.
Q: What are the defenses available in an action for
enforcement?
A:
1. Prescription;
2. Satisfaction of claim; and
3. Counterclaims.
Q: Will execution issue upon death of a party?
A:
a.
b.
Q: What is the nature of a revived judgment?
A: A revived judgment is deemed a new judgment
separate and distinct from the original judgment.
Q: How do you enforce a revived judgment?
A: A revived judgment may be enforced by motion
within 5 years from the date of its entry and
thereafter by action also before it is barred by the
statute of limitations (Sec. 6, Rule 39).
Q: May the period to execute the judgment be
stayed?
A: Yes: by agreement of the parties; by injunction;
or by taking an appeal or writ of error.
Q: What is the effect of an appeal to the execution
of the judgment?
A:
GR: An appeal perfected in due time stays the
execution of a judgment.
XPNs: There are judgments which by express
provision of law not stayed by appeal:
1.
Those judgments which by express
provision of the rules are immediately
executor and are not stayed by appeal
(Sec. 4, Rule 39);
Note: These are: judgment for injunction,
receivership, accounting and support unless
the court rule otherwise.
2.
Those judgments that have become the
object of discretionary execution (Sec. 2,
Rule 39).
Death of an obligee – execution will issue
in any case, upon application of his
executor, administrator, or successor-ininterest
Death of an obligor
- Death before levy:
Action for recovery of real or
personal property or any lien –
execution will issue.
Action for a sum of money –
execution will NOT issue. The judgment
obligee should file a claim against the
estate of the judgment obligor under
Rule 86
- Death after levy:
Execution will issue against his
executor, administrator, or successorin-interest because the property is
already separated from the estate of
the deceased and is deemed in
custodia legis.
b. ISSUANCE AND CONTENT OF A WRIT OF
EXECUTION
Q: What is a writ of execution?
A: It is a judicial writ issued to an officer authorizing
him to execute the judgment of the court.
Q: What is the lifetime of a writ of execution?
A: The writ is enforceable within 5 years from the
entry of judgment as provided for in Sec. 6 of Rule
39.
Q: What are the contents of a writ of execution?
A:
1.
2.
3.
4.
The name of the court which granted the
motion;
The case number;
The dispositive portion of the judgment
or order subject of the execution; and
Shall require the sheriff or other proper
officer to whom it is directed to enforce
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
103
UST GOLDEN NOTES 2011
the writ according to its terms (Sec.8, Rule
39)
Note: 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.
a.
b.
Q: Is a writ of execution subject to a motion to
quash?
A: A writ of execution may be quashed on certain
grounds:
1. When the writ of execution varies the
judgment;
2. When there has been a change in the
situation of the parties making the
execution inequitable or unjust;
3. When execution is sought to be enforced
against a property exempt from
execution;
4. When it appears that the controversy has
never been submitted to the judgment of
the court;
5. When the terms of the judgment are not
clear enough and there remains room for
interpretation thereof;
6. When it appears that the writ of
execution has been improvidently issued;
7. 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 is issued
without authority (Reburiano v. CA, 301
SCRA 342).
c. EXECUTION OF JUDGMENTS FOR MONEY
Q: What are the 3 ways to enforce a judgment for
money?
c.
Demand from the obligor the immediate
payment of the full amount stated in the
judgment including the lawful fees in
cash, certified check payable to the
judgment obligee or any other form of
payment acceptable to him.
If the judgment obligor cannot pay all or
part of the obligation in cash, certified
check or other mode of payment, the
officer shall levy upon the properties of
the judgment obligor. The judgment
obligor shall have the option to choose
which property or part thereof may be
levied upon. If the judgment obligor does
not exercise the option, the officer shall
first levy on the personal properties, if
any, and then on the real properties if the
personal properties are insufficient to
answer for the personal judgment but the
sheriff shall sell only so much of the
property that is sufficient to satisfy the
judgment and lawful fees.
The officer may levy on the debts due the
judgment debtor including bank deposits,
financial interests, royalties, commissions
and other personal property not capable
of manual delivery in the possession or
con troll of third parties. This is called
garnishment. (Sec. 9, rule 39)
Q: What is levy?
A: It is the act by which an officer sets apart or
appropriates a part of the whole of the property of
the judgment debtor for purposes of the execution
sale.
Q: What is garnishment?
A: It is the act of appropriation by the court when
the property of the debtor is in the hands of third
persons.
A:
1.
2.
3.
Immediate payment on demand
Satisfaction by levy
The judgment obligor exercises
discretion to choose which property
to levy; if not exercised, the officer
shall levy first on personal property,
then on real property. The sheriff
shall only sell property sufficient to
satisfy the judgment and other
lawful fees.
Garnishment of debts and credits.
Q: What are the steps in executing a judgment for
money?
A:
104
Note: The garnishee or the third person who is in the
possession of the property of the judgment debtor is
deemed a forced intervenor.
Q: Distinguish attachment from garnishment.
A: Attachment refers to corporeal property in the
possession of the judgment debtor.
Garnishment refers to money, stocks, credits and
other incorporeal property which belong to the
judgment debtor but is in the possession or under
the control of a third person. (1999 Bar Question)
Q: The writ of execution was returned unsatisfied.
The judgment obligee subsequently received
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
1.
Q: How is money judgment implemented if the
obligee is absent at the time of payment?
In case of conveyance, if a party fails to
comply with the time specified, the court
may direct the act to be done at the cost
of the disobedient party.
In case of delivery or restitution of real
properties, the officer shall demand the
losing party to peaceably vacate the
property within 3 working days, and
restore possession to the judgment
oblige; otherwise the officer shall oust
such disobedient party.
In case of removal of improvements on
property subject of execution, the officer
shall not destroy, demolish or remove
improvements except upon special order
of the court.
In judgments for the 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.
A: Sec. 9, Rule 39 lays down the procedure to be
followed by the sheriff in implementing money
judgments.
Q: How can judgment be executed for the
following specific acts if the judgment debtor
refuses/fails to comply therewith?
When the judgment obligee is not present at the
time the judgment obligor makes the payment, the
sheriff is authorized to receive it. However, the
money received must be remitted to the clerk of
court within the same day or, if not practicable,
deposited in a fiduciary account with the nearest
government depository bank. Sheriffs are not
permitted to retain the money in their possession
beyond the day when the payment was made or to
deliver the money collected directly to the
judgment oblige (Peña, Jr. v. Regalado II, A.M. No.
P-10-2772 (formerly A.M. OCA I.P.I No. 07-2615-P),
Feb. 16, 2010).
A:
information that a bank holds a substantial
deposit belonging to the judgment obligor. If the
bank denies holding the deposit in the name of the
judgment obligor but your client's informant is
certain that the deposit belongs to the judgment
obligor under an assumed name, what is your
remedy to reach the deposit?
2.
A: A motion may be filed for a court order requiring
the proper bank officer to appear in court for
examination under oath as to such bank deposit,
and subsequently move for a court order
authorizing the filing of an action against such bank
for the recovery of the judg e t o ligo s
deposit/interest therein and to forbid a transfer or
other disposition of such deposit/interest within
120 days from notice of the order (Secs. 37 and
43).(2008 Bar Question)
3.
4.
Judgments for
Specific Act (Sec.
10)
Conveyance,
delivery of deeds,
or other specific
acts, vesting title.
Sale of real and
personal property
d. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS
Q: What are considered specific acts?
A:
1.
2.
3.
4.
5.
Conveyance, delivery of deeds, or other
specific acts vesting title;
Sale of real or personal property;
Delivery or restitution of real property;
Removal of improvements on property
subject of execution; and
Judgments for the delivery of personal
property.
Q: What are the steps in executing a judgment for
specific acts?
A:
Delivery or
restitution of real
property
Removal of
improvements on
property subject of
execution
Delivery of
personal property
Manner of Execution
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 required party performed it.
Sell such property and apply the
proceeds in conformity with the
judgment.
If the party refuses to deliver, a
writ of execution directing the
sheriff to cause the defendant to
vacate is in the nature of a
haberefaciaspossesionemand
authorizes the sheriff to break
open the premises where there is
no occupant therein.
If party refuses to vacate
property, remedy is not contempt.
The sheriff must oust the party.
But if demolition is involved, there
must be a special order.
The officer may destroy, demolish
or remove the improvements
upon special order of the court,
issued upon motion of the
judgment obligee.
The officer shall take possession
and deliver to the party entitled
thereto.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
105
UST GOLDEN NOTES 2011
Q: May a judgment debtor be cited in contempt in
case of refusal to comply with judgment of the
court?
whom the same is rendered, or upon any other
person required thereby, or by law, to obey the
same, and such party or person may be punished
for contempt if he disobeys such judgment (Sec 11,
Rule 39).
A:
GR: The judgment debtor cannot be cited in
contempt of court. Generally, contempt is not a
remedy to enforce a judgment.
XPN:
1. Refusal to perform a particular act or
special judgments under Sec. 11 where he
may be cited in contempt.
2. In case of the provisional remedy of
support pendente lite under Rule 61, the
judgment debtor may still be cited for
contempt even if the decision is not a
special judgment and requires the latter
to pay money.
Note: If a party refuses to:
a. Vacate the property – the sheriff must oust
the party. A demolition order from the court
is required to effect removal of an
improvement constructed by the defeated
party.
b. Deliver – the sheriff will take possession and
deliver it to the wining party
c. Comply – the court can appoint some other
person at the expense of the disobedient
party and the act shall have the same effect
as if the required party performed it.
e. EXECUTION OF SPECIAL JUDGMENTS
Q: What is a special judgment?
A: It is a judgment that can be complied with only
by the obligor himself. It requires the performance
of any other act other than payment of money, or
the sale or delivery of real or personal property.
Q: What is the effect of failure to comply with
special judgments?
A: Failure to comply with special judgment under
Section 11 is punishable by contempt by
imprisonment.
Q: How is execution of special judgments
executed?
A:When a judgment requires the performance of
any act other than those mentioned in the two
preceding sections, a certified copy of the judgment
shall be attached to the writ of execution and shall
be served by the officer upon the party against
106
f. EFFECT OF LEVY ON THIRD PERSON
Q: What is the effect of levy on execution as to
third persons?
A: It 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).
Q: Aiza obtained a judgment for money against
Bert. The sheriff enforcing the corresponding writ
went to Celywho, is the pledgee of a ring Bert had
given as security for a loan and insisted on taking
possession of the ring for the purpose of
eventually selling it at the execution sale to satisfy
the judgment debt of Bert to Aiza. Does Cely have
the obligation to surrender the ring to the sheriff?
Explain.
A: No, because Cely has the right to retain the ring
in his possession until the loan is paid (Art. 2098,
NCC). If the sheriff should take possession of the
ring, Cely may file a third-party claim. (1987 Bar
Question)
Q: What are the remedies available to a thirdparty claimant in levy of real property?
A:
1.
2.
3.
4.
Summary hearing before the court which
authorized the execution;
Terceriaor third party claim filed with the
sheriff;
Action for damages on the bond posted
by judgment creditors; or
Independent reinvindicatory action. (Sec.
16, Rule 39)
The remedies are cumulative and may be resorted
to by the third party claimant independently of or
separately from the others.
Note: The officer shall not be liable for damages for
the taking or keeping of the property, to any thirdparty claimant if there is a bond filed by the winning
party. If there is no bond, the sale cannot proceed.
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 (Sec. 16, Rule 39).
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: What are other properties ESPECIALLY exempt
from execution?
4. PROPERTIES EXEMPT FROM EXECUTION
A:
Q: What are the properties exempt from
execution?
A:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
The judg e t o ligo s fa il ho e 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;
3 horses, cows, or 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
P100,000;
Provisions for individual or family use
sufficient for 4 months;
The professional libraries and equipment
of
judges,
lawyers,
physicians,
pharmacists,
dentists,
engineers,
surveyors, clergymen, teachers, and other
professionals, not exceeding P300,000 in
value;
1 fishing boat and accessories not
exceeding the total value of P100,000
owned by a fisherman and by the lawful
use of which he earns his livelihood;
So much of the salaries, wages, or
earnings of the judgment obligor for his
personal services within the 4 months
preceding the levy as are necessary for
the support of his family;
Lettered gravestones;
Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance;
The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity from
the government; and
Properties specially exempted by law.
But no article or species of property mentioned
above shall be exempt from execution issued upon
a judgment recovered for its price or upon a
judgment of foreclosure of a mortgage hereon (Sec.
13).
1.
Property mortgaged to DBP (Sec 26, CA
458)
2. Property taken over by Alien Property
Administration (Section 9[f], US Trading
with the Enemy Act)
3. Savings of national prisoners deposited
with the Postal Savings Bank (Act 2489)
4. Backpay of pre-war civilian employees (RA
304)
5. Philippine Government backpay to
guerillas (RA 897)
6. Produce, work animals, and farm
implements of agricultural lessees,
subject to limitations (Sec 21, RA 6389)
7. Benefits from private retirement systems
of companies and establishments, with
limitations (RA 4917)
8. Labor wages, except for debts incurred
for food, shelter, clothing, and medical
attendance (Art 1708, NCC)
9. Benefit payments from the SSS (Sec 16 RA
1161 as amended by PDs 24, 65, and 177)
10. Copyrights and other rights in intellectual
property under the former copyright law
(PD 49 cf Sec 239.3, RA 8293); and
11. Bonds issued under RA1000 (NASSCO v.
CIR L-17874 31 August 1963) (Regalado, F.
th
Remedial Law Compendium Vol. 1, 9 ed.,
pp. 481-482)
5. PROCEEDINGS WHEN PROPERTY IS CLAIMED BY
THIRD PERSONS
Q: When can you file a third party claim?
A: At any time, so long as the sheriff has the
possession of the property levied upon, or before
the property is sold under execution.
Q: What are the requisites for a claim by a third
person?
A: Requisites for a claim by a third person:
1.
2.
3.
4.
The property is levied;
The claimant is a person other than the
judgment obligor or his agent;
Makes an affidavit of his title thereto or
right to the possession thereof stating the
grounds of such right or title; and
Serves the same upon the officer making
the levy and the judgment obligee.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
107
UST GOLDEN NOTES 2011
Q: What is the procedure for a 3rd party claim?
A: 3rd party should make an affidavit of his title
thereto, or right of possession thereof, and should
serve such affidavit upon the sheriff and a copy
thereof to the judgment obligee.
Q: What is the duty of the officer if the property
sought to be levied on is claimed by another
person and proper proof of ownership or
possession is served upon the officer making levy?
A: If the property levied on is claimed by any person
other than the judgment obligor or his agent, and
such person makes an affidavit of his title thereto
or right to the possession thereof, stating the
grounds of such right or title, and serves the same
upon the officer making the levy and a copy thereof
upon the judgment obligee, the officer shall not be
bound to keep the property, unless such judgment
obligee, on demand of the officer, files a 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
such value, the same shall be determined by the
court issuing the writ of execution. 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 one hundred twenty (120)
days from the date of the filing of the bond.
The officer shall not be liable for damages for the
taking or keeping of the property, to any third-party
claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any third
person from vindicating his claim to the property in
a separate action, or prevent the judgment obligee
from claiming damages in the same or a separate
action against a third-party claimant who filed a
frivolous or plainly spurious claim.
Q: Allen obtained a money judgment against Bob.
After the finality of the decision, the court issued a
writ of execution for the enforcement thereof.
Conformably with the said writ, the sheriff levied
upon certain properties under Bob's name. Cathy
filed a third-party claim over said properties
claiming that Bob had already transferred the
same to him. Allen moved to deny the third-party
claim and to hold Bob and Cathy jointly and
severally liable to him. After due hearing, the
court denied the third-party claim and rendered
an amended decision declaring Bob and Cathy
jointly and severally liable to Allen for the money
judgment. Is the ruling of the court correct'?
Explain.
108
A: No, Cathy has not been impleaded as a party
defendant. He cannot be held liable for the
judgment against Bob without a trial. In fact, since
no bond was filed by Allen, the sheriff is liable to
Cathy for damages. Cathy can file a separate action
to enforce his third-party claim. It is in that suit that
Allen can raise the ground of fraud against Cathy.
However, the execution may proceed where there
is a finding that the claim is fraudulent (Tanongan v.
Samson, G.R. No. 140889, May 9, 2002). (2005 Bar
Question)
Q: If the writ of execution is issued in the name of
the Republic of the Philippines and the property
object of the levy is being claimed by a third
person, is there a necessity for filing a bond?
A: When the writ of execution 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 or levying officer is
sued for damages as a result of the levy, 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
such funds as may be appropriated for the purpose.
a. IN RELATION TO THIRD PARTY CLAIM IN
ATTACHMENT AND REPLEVIN
Certain remedies available to a third person not
party to the action but whose property is the
subject of execution:
1.
2.
Terceria – By making an affidavit of his title
thereto or his right to possession thereof,
stating the grounds of such right or title. The
affidavit must be served upon the sheriff and
the attaching party (Sec. 14, Rule 57). Upon
service of the affidavit upon him, the sheriff
shall not be bound to keep the property under
attachment except if the attaching party files a
bond approved by the court. the sheriff shall
not be liable for damages for the taking or
keeping of the property, if such bond shall be
filed.
Exclusion or release of property – Upon
application of the third person through a
motion to set aside the levy on attachment,
the court shall order a summary hearing 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. The court may order
the sheriff to release the property from the
erroneous levy and to return the same to the
third person. In resolving the application, the
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
3.
4.
court cannot pass upon the question of title to
the property with any character of finality but
only insofar as may be necessary to decide if
the sheriff has acted correctly or not (Ching vs.
CA, 423 SCRA 356).
Intervention – This is possible because no
judgment has yet been rendered and under
the rules, a motion for intervention may be
filed any time before the rendition of the
judgment by the trial court (Sec. 2, Rule 19).
Accion Reinvindicatoria – The third party
claimant is not precluded by Sec. 14, Rule 57
from vindicating his claim to the property in
the same or in a separate action. He may file a
separate action to nullify the levy with
damages resulting from the unlawful levy and
seizure. This action may be a totally distinct
action from the former case.
6. RULES ON REDEMPTION
Q: Is the right of redemption available to any type
of property?
A: No. There is no right of redemption as to
personal properties for the sale is absolute. Such
right is available only to real properties.
Q: Distinguish a judgment obligor from a
redemptioner? What are their rights as regards
redemption of real property?
A:
JUDGMENT
OBLIGOR
Judgment obligor,
or his successor in
interest (e.g.
transferee,
assignee, heirs, joint
debtors)
Within 1 year from
the date of
registration of the
certificate of sale.
REDEMPTIONER
One who has a lien by by virtue
of an attachment judgment,
judgment, or mortgage on the
property sold, SUBSEQUENT to
the lien under which the
property was sold (Sec. 27)
Note: If edito s lie is prior
to the judgment, he is not a
redemptioner because his
interests in his lien are fully
protected.
1. Within 1 year from the
date of registration of the
certificate of sale if he is
the first redemptioner, or
2. Within 60 days from the
last redemption, if he be a
subsequent
redemptioner, provided
that the judgment debtor
has not exercised his right
of redemption.
Once he redeems,
no further
redemption is
allowed. The person
to whom
redemption was
made must execute
and deliver to the
judgment obligor a
certificated of
redemption.
Further redemption is allowed,
even after lapse of 1 year, as
long as each redemption is
made within 60 days after the
last.
Note: The period of redemption is not suspended by
an action to annul the foreclosure sale. The periods for
redemption are not extendible; but the parties may
agree on a longer period, in such case, it would be a
conventional redemption.
Note: A surety is not a successor in interest. The right
of redemption cannot be levied on by judgment
creditor.
Q: Can redemption be made in other forms than
cash?
A: Yes. The rule is liberal in allowing redemption
a d it has ee allo ed i the ase of a ashie s
check and certified bank checks.
Q: Who may redeem the real property sold?
A: Real property sold, or any part thereof sold
separately, may be redeemed by the following
persons:
1. Judgment obligor, or his successor in interest
in the whole or any part of the property;
2. Redemptioner – 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.
Note: A mortgagee can be a redemptioner even if his
mortgage has not yet matured, but his mortgage
contract must have been executed after the entry of
judgment. Generally in judicial foreclosure sale, there
is no right of redemption, but only equity of
redemption. In sale of estate property to pay off debts
of the estate, there is no redemption at all. Only in
extrajudicial foreclosure sale and sale on execution is
there the right of redemption.
Q: What are the requirements to enable the
redemptioner or judgment obligor to redeem the
real property?
A: The judgment obligor, or redemptioner, may
redeem the property from the purchaser at any
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
109
UST GOLDEN NOTES 2011
time within 1 year from the date of the registration
of the certificate of sale by paying the purchaser:
1. the amount of his purchase;
2. amount of any assessments or taxes which the
purchaser may have paid after purchase;
3. 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; and
4. With 1 percent per month interest up to the
time of redemption.
2.
3.
4.
Reversal or setting aside of
judgment;
The fact that the property was
exempt from execution; or
If a third person has vindicated his
claim to the property (Sec. 34).
Q: What is the remedy of purchaser of real
property sold on execution in the above
situations?
A:
1.
Q: Is the bona fide tender or delivery of the
redemption price required in offer to redeem?
2.
A:
3.
GR: The offer to redeem must be accompanied
with a bona fide tender or delivery of the
redemption price.
XPN: The right to redeem is exercised through
the filing of a complaint to redeem in the
courts.
Q: What are the rights of a judgment debtor?
7. EXAMINATION OF JUDGMENT OBLIGOR WHEN
JUDGMENT IS UNSATISFIED
Q: What is the effect when the judgment was
returned unsatisfied?
A:
1.
A:
1.
2.
3.
4.
5.
To remain in possession of the property
until the expiration of period of
redemption;
To collect rents and profits until the
expiration of period of redemption (Sec.
32);
To use the property in the same manner it
was previously used;
To make necessary repairs; and
Use it in the ordinary course of husbandry
(Sec. 31).
2.
3.
Q: When is the purchaser entitled to possession
and conveyance of the property sold on
execution?
4.
A: The purchaser is entitled to possession and
conveyance of the property if no redemption is
made within one (1) year from the date of the
registration of the certificate of sale (Sec. 33).
5.
Q: What are the instances when the purchaser
may recover the purchase price from the judgment
obligor?
6.
A:
1.
2.
110
If the purchaser or his successor-ininterest fails to recover possession of the
property sold on execution sale; or
Is evicted due to:
1. Irregularities in the proceedings
concerning the sale;
Bring an action against the judgment
creditor;
File a motion for revival of judgment in his
name against the judgment debtor; or
Bring an action to recover possession of
property.
The judgment creditor may cause
examination of the judgment debtor as to
his property and income (Sec. 36) (2008
Bar Question);
The judgment creditor may cause
examination of the debtors of the
judgment debtor as to any debt owed by
him or to any property of the judgment
debtor in his possession (Sec. 37);
If the court finds, after examination, that
there is property of the judgment debtor
either in his own hands or that of any
person, the court may order the property
applied to the satisfaction of the
judgment (Sec. 37);
If the court finds the earnings of the
judgment debtor are more than sufficient
fo his fa il s eeds, it
a order
payment in fixed monthly installments
(Sec. 40);
The court may appoint a receiver for the
property of the judgment debtor not
exempt from execution or forbid a
transfer or disposition or interference
with such property (Sec. 41);
If the court finds that the judgment
debtor has an ascertainable interest in
real property either as mortgagor,
mortgagee, or otherwise, and his interest
can be ascertained without controversy,
the court may order the sale of such
interest (Sec. 42); and
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
7.
If the person alleged to have the property
of the judgment debtor or be indebted to
him, claims an adverse interest in the
property, or denies the debt, the court
may authorize the judgment creditor to
institute an action to recover the
property, forbid its transfer and may
punish disobedience for contempt (Sec.
43).
Q: Anna, a Manila resident, sued Betsie resident of
Malolos, Bulacan, in the RTC Manila for a sum of
money. The trial court rendered judgment holding
Anna liable for the entire amount prayed for in the
complaint. After the judgment had become final, a
writ of execution was issued by the court. As the
writ was returned unsatisfied, Anna filed a motion
for an order requiring Betsie to appear before it
and be examined regarding his property and
income. How should the court resolve the motion?
A: The RTC Manila should deny the motion. Betsie
resides in Malolos, Bulacan. When a writ of
execution is returned unsatisfied, the judgment
obligee, at any time after such return is made, shall
be entitled to an order from the court which
rendered the said judgment, requiring such
judgment obligor to appear and be examined
concerning his property and income before such
court or before a commissioner appointed by it.
However, no judgment obligor shall be so required
to appear before a court or commissioner outside
the province or city in which such obligor resides or
is found (Sec. 36). (2002 Bar Question)
8. EXAMINATION OF OBLIGOR OF JUDGMENT
OBLIGOR
Q: How is examination of obligor of judgment
obligor done?
A: Court may order to be examined any person or
corporation who has property of the debtor in
order to bind the credits due to debtor.
Note: The garnishee becomes a forced intervenor,
requiring him to pay his debt not to the judgment
debtor but to the creditor (a form of involuntary
novation).
Note: A party or other person may be compelled, by
an order of subpoena, to appear before the court or
commissioner to testify as provided in Sec 36 & 37.
Failure to obey may be punished by contempt. If
examination is before a commissioner, he must take it
in writing and certify it to the court. All examinations
and answers must be under oath.
9. EFFECT OF JUDGMENT OR FINAL ORDERS
A:
1.
2.
3.
4.
5.
If judgment or final order is on a specific
thing, the same is conclusive upon the
title to thing (Sec. 47, Rule 39).
With respect to a probate of a will, or the
administration of the estate of a deceased
person, the same is conclusive upon the
will or administration but the probate of
the will or the granting of letters of
administration shall only be prima facie
evidence of the death of the testator or
intestate and not a conclusive
presumption of death (Sec.47, Rule 39).
With respect to the personal, political or
legal condition or status of a particular
person or his relationship to another, the
judgment or final order is conclusive upon
the condition, status or relationship
(Sec.47, Rule 39).
In other cases, if the judgment be with
respect to the matter directly adjudged or
as to any other matter that could have
been raised in relation thereto, the
judgment or final order is 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 the same
capacity, relationship (Sec.47, Rule 39).
In any other litigation between the same
parties or their successors in interest, that
only is deemed to be adjudged in a
former judgment or final order which
appear upon its face to have been
adjudged, or which was actually and
necessarily included therein or necessary
thereto (Sec.47, Rule 39).
Q: When the judgment is final and executory, is it
always ministerial upon the court to order
execution?
A:
GR: Trial Court has ministerial duty to order
execution of final and executor judgments. It
cannot refuse execution and is compellable by
mandamus.
XPN: (Same as grounds to Quash writ of execution)
1. Change in the situation of the parties
which makes the execution inequitable or
unjust;
2. Writ of execution varies judgment;
3. Controversy was never submitted to the
judgment of the court;
4. Execution is sought against property
exempt from execution;
Q: What is the effect of final judgments?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
111
UST GOLDEN NOTES 2011
5.
Terms of the judgment are not clear and
leaves room for interpretation;
6. Writ of execution is improvidently issued;
7. Writ of execution is defective in
substance;
8. Writ of execution is issued against the
wrong party;
9. Judgment debtor has been paid or
otherwise satisfied; and
10. Writ of execution was issued without
authority.
Note: In the above exceptions, remedy is certiorari
(Rule 65)
Q: When may execution of final and executory
judgment be enjoined?
A:
1.
2.
3.
4.
Upon fling of a petition for relief from
judgment;
Attack against a judgment which is void
for lack of jurisdiction, or obtained
through fraud;
On equitable grounds; and
In cases falling under the 10 exceptions
above.
Q; Discuss the effect of judgment under paragraph
A and B of Section 47
A:
In Rem (Par. a)
The decision is
conclusive upon the title
of the thing, the will or
administration or the
condition, status or
relationship of the
person.
i.e. land registration
cases
In Personam (Par. b)
The judgment or final order
is conclusive between
parties and their
successors-in-interest,
litigating for the same thing
and under the same title
and in the same capacity.
i.e. actionreinvindicatoria
Note: In both instances, the judgment may be repelled
by evidence of want of jurisdiction, notice, collusion,
fraud or clear mistake of law or fact. (par. 4, Sec. 48)
Q: What are the requisites of res judicata?
A:
1.
2.
3.
Note: Judgment novated by a subsequent agreement
cannot be executed (e.g. agreement entered into by
the parties other than terms of payment).
4.
Note: judgment for support is not final in a sense that
it cannot be modified. Support depends not only on
the varying conditions affecting the ability of the
oblgor to pay, but also upon the ever-changing needs
of the beneficiary himself.
Former judgment or order must be final
and executory;
Court has jurisdiction over subject matter
and parties;
Former judgment or order was on merits;
and
Identity of parties, subject matter, and
cause of action between first and second
action. (TEST: determine identity if cause
of action)
10. ENFORCEMENT AND EFFECT OF FOREIGN
JUDGMENTS OR FINAL ORDERS
Q: What is the effect of a foreign order?
Q: Can final and executory judgments be
modified?
A:
1.
A:
GR: Final and executor judgments cannot be
amended or modified. Any amendment which
substantially affects a final and executor judgment
is null and void for lack of jurisdiction.
XPN: Judgment may be modified as to:
1. Clerical errors or mistakes - errors not as a
result of exercise of judicial functions
2. To clarify ambiguity; or
3. To enter nunc pro tunc orders – to make a
present record of an order which the
court rendered at a previous terms but,
by inadvertence has not been entered.
2.
Against a specific thing – conclusive upon
title to the thing.
Against a person – presumptive evidence
of a right as between the parties and their
successors in interest by a subsequent
title.
Note: In both instances, the judgment may be repelled
by evidence of want of jurisdiction, notice, collusion,
fraud, or clear mistake of law or fact.
Q: How is a foreign judgment enforced?
A: By filing an action based on said judgment;
foreign judgment is presumed to be valid and
binding.
Note: to recognize a foreign judgment, raise the
foreign judgment as res judicata in the defense (not in
a separate motion)
112
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
R. PROVISIONAL REMEDIES
Q: Distinguish the different kinds of provisional remedies.
A:
Preliminary
Attachment (Rule
57)
Preliminary Injunction
(Rule 58)
Receivership (Rule
59)
Replevin (Rule
60)
Support Pendente
Lite (Rule 61)
Subject Matter
Personal and real
property
SC, CA, RTC, Family
Court,
Metropolitan,
Municipal and
Municipal Circuit
Trial Courts
Personal property
capable of
manual delivery
Jurisdiction (Court which can grant it)
Particular act(s)
SC, CA, RTC, Family
Court, Metropolitan,
Municipal and Municipal
Circuit Trial Courts
Personal and real
property
Money or other forms
of support
SC, CA, RTC, Family
Court, Metropolitan,
Municipal and
Municipal Circuit Trial
Courts
GR: Family Court
XPN: In criminal
actions, as long as the
civil aspect is tried
together with it , the
RTC or MTC having
jurisdiction may also
issue this remedy.(e.g
Art. 345 (3) RPC, in
crimes against
hastit , I e e
case to support the
offsp i g..
RTC, Family Court,
Metropolitan,
Municipal, and
Municipal Circuit
Trial Courts
Who may grant it
Court where action is
pending, the CA or
Only the Court where
the SC, or a member
Courts where
the action is pending;
thereof, even if action
action is pending,
Lower court, CA or SC
is pending in the
Only the court
the CA or the SC
provided action is
lower court.
where action is
(Sec. 2)
pending in the same
Appellate court may
pending.
court which issues the
allow application for
injunction (Sec. 2)
receivership to be
decided by the court
of origin (Sec. 1)
When available
At any stage of the
At the
At any stage of the
At any stage of the
proceeding and even
commencement
action but before
action but before
after finality of
of the action but
entry of final
judgment or final order
judgment; anytime
before answer is
judgment (Sec. 1)
(Sec. 1)
prior to satisfaction of
filed (Sec. 1)
judgment
How applied for
File verified application
File verified
a d appli a t s o d; if
application and
application is included in
appli a t s o d;
the initiatory pleading,
application may also
File affidavits and
File affidavits and
the adverse party should
be included in
appli a t s o d
appli a t s o d
be served with summons
initiatory pleading in
(Sec. 3)
(Sec. 2)
together with a copy of
actions for
the initiatory pleading and
foreclosure of
the appli a t s affida it
mortgage (Secs. 1 and
and bond (Sec.4)
2)
Purpose(s)
1. To
seize
the To require a party or a
To place the
To recover
property of the
court, agency or a
property subject of
possession of
adverse party in person to refrain from
an action or
personal
Court of origin and
appellate court.
(Ramos v. CA, GR No.
L-31897, June 30,
1972)
At the
commencement of
the action or at any
time prior to the
judgment or final
order (Sec. 1)
File verified
application; bond not
required (Sec. 1)
To compel adverse
party to provide
support while the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
113
UST GOLDEN NOTES 2011
2.
advance for the
satisfaction
of
judgment that may
be recovered in
cases falling under
Sec.1, Rule 57.
To enable the court
to
acquire
jurisdiction over the
action by the actual
or
constructive
seizure
of
the
property in those
instances
where
personal service of
summons on the
creditor cannot be
effected. (Quasha v.
Juan,G.R.No.L54158,
Nov. 19, 1982)
1. GR: In an action for
the recovery of a
specified amount or
damages.
XPN:
a. moral
and
exemplary
b. against a party
who is about to
depart from the
Philippines with
intent to defraud
his creditors;
2. In an action for money
or property embezzled
or
fraudulently
misapplied
or
converted to his own
use by a public officer,
or by any other person
in a fiduciary capacity,
or for a willful
violation of duty;
3. In an action to recover
the possession of
property unjustly or
fraudulently
taken,
detained
or
converted, when the
property has been
concealed, removed
or disposed of to
prevent its being
found or taken by the
applicant
or
an
authorized person;
4. In an action against a
party who has been
guilty of fraud in
contracting the debt
or
incurring
the
114
doing a particular act
or to require the
performance of a
particular act
To prevent future
injury and maintain
the status quo.
(Kencht v. CA, G.R. No.
97962, Nov. 17, 1993)
1. That the applicant is
entitled to the relief
demanded
which
consists
in
restraining
the
commission
or
continuance of the
act complained of,
or in requiring the
performance of an
act for a limited
period
or
perpetually
2. Commission,
continuance or nonperformance of the
act
during
the
litigation
would
probably
work
injustice to the
applicant; or
3. Party, court, agency
or a person is doing,
threatening, or is
attempting to do, or
is procuring or
suffering to be
done, some act
probably
in
violation of the
rights
of
the
applicant respecting
the subject of the
action and tending
to
render
the
judgment
ineffectual (Sec. 3)
proceeding under
the control of a
third party for its
preservation and
administration litis
pendentia and to
protect the rights of
all the parties under
the direction of the
court.
Ground(s)
1. When
the
applicant has an
interest in the
property or fund
subject of the
proceeding and
such property is in
danger of being
lost, removed or
materially injured
unless a receiver
is appointed;
2. In foreclosure of
mortgage, when
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 it has been
agreed upon by
the parties;
3. 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
execution
has
been
returned
unsatisfied of the
judgment obligor
refuses to apply
property. (1999
Bar Question)
Applicant is:
1. The owner
of
the
property
claimed; or
2.
Entitled to
the
possession
thereof but
the
property is
wrongfully
detained by
the adverse
party (Sec.
2)
action is pending in
court.
When equity and
justice require,
having due regard to
the probable
outcome of the case
and such other
circumstances as
may suggest the
reasonability of
granting support
pendente lite
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
obligation or in its
performance
5. 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;
6. In an action against
a party who does
not reside and is not
found
in
the
Philippines, or on
whom
summons
may be served by
publication
his property in
satisfaction of the
judgment,
or
otherwise to carry
the judgment into
effect; or
4. When
appointment of
receiver is the
most convenient
and
feasible
means
of
preserving,
administering or
disposing of the
property
in
litigation (Sec. 1).
Whether principal or ancillary action
Ancillary remedy
Principal action/
ancillary remedy
Principal action/
ancillary remedy
Principal action/
ancillary remedy
Ancillary to:
1. Action for
support; or
2. In a criminal
action where civil
liability includes
support for the
offspring provided
the civil aspect
thereof has not
been waived,
reserved or
instituted prior to
its filing.
During the
pendency of the
case unless the
defendant files a
redelivery bond.
During the pendency
of the case.
Not required ;
may be issued ex
parte
Required – Within 3
days after comment
is filed or after
expiration of period
of filing
Effectivity
During the pendency of
the case unless earlier
discharged or quashed by
the court
During the pendency
of the case unless
earlier discharged or
quashed by the court
Until discharged by
the court
Requirement of Hearing
GR: Required
Great
or
XPN:
Not required; may be
irreparable injury would
Required
issued ex parte (2001
result / extreme urgency
Bar Question)
and applicant will suffer
grave
injustice
and
irreparable injury (Sec. 5)
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 that 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 (Sec. 4, Rule 57; Sec. 4, Rule 58, Sec. 2, Rule 59
)
2 bond requirement for receivership:
1. Filed by the applicant; and
2. Filed by the receiver.
Bond executed to the
adverse party in double the
value of the property, for
the return of the property
to the adverse party if such
return be adjudged and for
the payment to the adverse
party of such sum as he may
recover from the applicant
in the action (Sec. 2)
Immediately Executory
Yes
No
Discharge of Remedy
By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge
No
Yes
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
No bond
required.
Yes
Not applicable.
115
UST GOLDEN NOTES 2011
of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the
court or to the value of the property if with respect to a particular property to secure the payment of
any judgment that the adverse party may recover in the action.
Counter Bond
Filing of counter-bond
made only upon showing
that the issuance or
continuance thereof
would cause irreparable
Amount of
Amount of counterdamage to the party or
Cash deposit may be
counter-bond to
bond should be
Not applicable.
made in lieu of the
person enjoined while the
be fixed by the
double the value of
applicant can be fully
counter-bond (Sec. 12)
court (Sec. 3)
the property (Sec. 5)
compensated for such
damages as he may suffer;
counter-bond alone will
not suffice to discharge
the injunction (Sec. 6)
Other Grounds For Discharge
1. Improper or irregular
issuance
or
enforcement
or
1. Plai tiff s o d is
1. Appointment
insufficiency of bond.
found
to
be
1. Insufficiency of the
was obtained
(Sec. 13)
insufficient
or
application (Sec. 9)
without
2. Judgment
rendered
defective and is
sufficient cause.
against
attaching
not replaced with
2. Other grounds (e.g.
creditor (Sec. 19)
proper bond; or
appli a t s
o d
is 2. Bond posted by
3. Property attached is
the applicant /
insufficient/ defective),
exempt from execution
2. Property is not
receiver
is
upon affidavits of the
(Sec. 2 & 5)
delivered to the
insufficient (Sec.
party
or
person
4. Attachment
is
plaintiff for any
3).
enjoined
excessive, but the
reason (Sec. 6).
discharge
shall
be
limited to the excess
(Sec. 13).
Damages in Case Applicant is Not Entitled Thereto or For Irregularity of the Procurement Of the Provisional Remedy
When the judgment or
final order finds that the
person who has been
providing support
Requisites:
pendente lite is not
1. Owner of the property attached must file before trial or before perfection of appeal or
liable therefor, the court
before judgment becomes executory an application for damages;
2. Party who availed of provisional remedy and his surety must be notified, showing right shall order the recipient
to return the amounts
to damages and amount thereof; and
already received with
3. Such damages may be awarded only after proper hearing and shall be included in the
interest from the date of
judgment of the main case.
actual payment, without
If the judgment of the appellate court is favorable to the party against whom provisional prejudice to the right of
the recipient to obtain
remedy was effected:
reimbursement in a
Application must be filed with the appellate court before the judgment of the
separate action from
appellate court becomes executory. Appellate court may allow application to be heard
the person legally
and decided by the trial court.
obliged to give support.
If bond or deposit given by the party availing of the provisional remedy be insufficient or fail
If the recipient fails to
to satisfy the award:
reimburse the amount,
Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec.
the person who
9, Rule 59; Sec. 10, Rule 60)
provided the same may
.
Note: Any award of damages for the wrongful issuance of a provisional remedy should be seek reimbursement in a
separate action from
recovered in the same case. The recovery of damages cannot be had in a separate action.
the person legally
obliged to give such
support (Sec. 7)
116
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
d. Production Order
(Riano, Civil Procedure: A Restatement for
the Bar, p. 534-536, 2009 ed.)
1. NATURE OF PROVISIONAL REMEDIES
Q: What are provisional remedies?
A: Provisional remedies are writs and processes
available during the pendency of the action which
may be resorted to by a litigant to preserve and
protect certain rights and interests therein pending
rendition, and for the purpose of the ultimate
effects, of a final judgment in the case.
Q: What is the nature of provisional remedies?
A:
1.
2.
Temporary measures availed of during
the pendency of the action
Mere incidents and are dependent upon
the result of the main action
Q: What are the purposes of provisional remedies?
A: Provisional remedies are resorted to:
1. To preserve or protect their rights or
interests while the main action is
pending;
2. To secure the judgment;
3. To preserve the status quo;
4. To preserve the subject matter of the
action.
2. JURISDICTION OVER PROVISIONAL
PROVISIONAL REMEDIES
Q: Which court has jurisdiction over applications
for provisional remedies?
A:
GR: Applications must be filed with the court having
jurisdiction over the pending principal action. Even
an inferior court may grant such remedy, however,
where the main action is for support, the
provisional remedy of support pendente lite may
not be granted by a Municipal Trial Court because
the main action is within the jurisdiction of the
Family Court. (Riano, Civil Procedure: A
Restatement for the Bar, p. 532, 2009 ed.)
XPN: in criminal actions, as long as the civil aspect
is tried together with it, the RTC or MTC having
jurisdiction may also issue the remedy of Support
pendent Lite. (e.g. Art 345 (3) RPC, in crimes against
hastit , i e e ase to suppo t the offsp i g…
Q: When are these provisional remedies available?
A:
1.
Q: What are the Provisional Remedies under the
Rules of Court?
2.
A:
1.
2.
3.
4.
5.
Preliminary Attachment (Rule 57)
Preliminary Injunction (Rule 58)
Receivership (Rule 59)
Replevin (Rule 60)
Support Pendente Lite (Rule 61)
Q: What are the Other Provisional Remedies
available?
A:
1.
2.
3.
4.
5.
Temporary custody over a minor
Deposit in Actions for Annulment of Sale
(Reyes v. Lim)
Restraining order against the accused in
cases of violence among immediate
family members living in the same
domicile and household
Hold departure orders issued by Regional
Trial Courts in criminal cases
Interim reliefs under Writ of Amparo
a. Temporary Protection Order
b. Witness Protection Order
c. Inspection Order
3.
Attachment, injunction and support
pendent lite – may be applied for before
final judgment
Replivin – may be applied before the
answer
Receivership – may be applied for at any
stage of the action and even after final
judgment.
3. PRELIMINARY ATTACHMENT
Q: What is Preliminary Attachment?
A: It is a provisional remedy issued upon order of
the court where an action is pending to be levied
upon the property of the defendant for the same to
be held by the Sheriff as security for the satisfaction
of whatever judgment may be rendered in the case
( Davao Light and Power, Inc.v. CA, 204 SCRA 343).
Note: This is only an ancillary remedy. There is no
separate action called preliminary attachment. It is not
a distinct proceeding and is availed of within a
principal action because it is a mere provisional
remedy. The grant of remedy is addressed to the
discretion of the court. (Riano, Civil Procedure: A
Restatement for the Bar, p. 537, 2009 ed.)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
117
UST GOLDEN NOTES 2011
Q: What is
attachment?
the
purpose
of
preliminary
Q: What are the kinds of attachment?
A:
A: Preliminary attachment is designed to:
1. seize the property of the debtor before final
judgment and put the same in custodialegis even
while the action is pending for the satisfaction of a
later judgment (Insular Bank of Asia and America v.
CA, 190 SCRA 629); or
1.
2.
2. 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, 533 SCRA 738).
Q: Who may apply for a preliminary attachment?
A: It is not only the plaintiff who may apply for a
writ of preliminary attachment. A defendant who
asserts a counterclaim, a cross-claim or a thirdparty claim may also avail of the remedy. Sec. 1 of
‘ule
p o ides that the plai tiff o a p ope
party may have the property of the adverse party
atta hed. Borja v. Platon, 73 Phil. 659) (Riano,
Civil Procedure: A Restatement for the Bar, p. 538,
2009 ed.)
3.
Preliminary attachment- one issued at the
commencement of the action or at
anytime before entry of the judgment as
security for the satisfaction of any
judgment that may be recovered in the
cases provided for by the rules.
Garnishment- the plaintiff seeks to
subject either the property of the
defendant in the hands of the third
person called the garnishee, to his claim
or the money in which said third person
owes the defendant (RCBC v. Castro, No.
L- 34548, November 29, 1988).
Garnishment simply impounds the
property in the possession of the
garnishee and maintains the status quo
until the main action is finally decided.
Levy on execution- writ issued by the
court after judgment by which the
property of the judgment obligor is taken
into the custody of the court before the
sale of the property on execution for the
satisfaction of a final judgment.
Q: Distinguish Preliminary attachment from Final
attachment.
Q: What is the nature of the proceeding?
A:
A: Attachment is in the nature of proceeding quasi
in rem (Banco- Espanol Filipino v. Palanca, 37 Phil
921) although sometimes referred to as an actionin
rem (Valdemieso v. Damalerio, 451 SCRA 638,
February 17, 2005).
Note: Whether in rem or quasi in rem, the legal effects
are identical because in both cases jurisdiction over
the person of the defendant is not required as long as
the court acquires jurisdication over the res (Biaco v.
Countryside Rural Bank, 515 SCRA 106).
Q: Once prayed for, is it mandatory that the court
grant the writ of preliminary attachment?
A: The grant of preliminary attachment is addressed
to the sound discretion of the court.
Q: What is the effect if a preliminary action is
availed of and is granted in an action purely in
rem?
A: When availed of and granted in an action purely
in personal, it converts the action to one that is
quasi in rem. This transformation of the nature of
the action dispenses with the need of acquiring
jurisdiction over the person of the defendant.
118
PRELIMINARY
ATTACHMENT (Rule 57)
It is an auxiliary remedy
to give security for a
judgment still to be
rendered.
There is no sale because
the decision has not yet
been rendered.
Resorted to at the
commencement of the
action or at any time
before the entry of
judgment,
for
the
temporary seizure of the
property of the adverse
party
The proceeds of the sale,
in cases allowed, are in
custodial egis (Sec. 11)
FINAL ATTACHMENT
(Rule 39)
It is a means for the
execution of a final
judgment.
It should always be
accompanied by a sale at
public auction.
Available
after
the
judgment in the main
action
had
become
executor, and for the
satisfaction
of
said
judgment.
The proceeds of the sale
are turned over to the
attaching creditor
a. GROUNDS FOR THE ISSUANCE
Q: What are the groundsfor the issuance of a writ
of preliminary attachment? (When is a Preliminary
Attachment Proper?)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
b.
A:
1.
2.
3.
4.
5.
6.
Actions for the recovery of a specified
amount of money or damages
XPN:
o moral and exemplary damages
o against a party who is about to depart
from the Philippines which intent to
defraud his creditors
Actions 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
other person in a fiduciary capacity, or for
a willful violation of duty
Actions 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
Actions against a party who has been
guilty of a fraud in contracting the debt or
incurring or performance the obligation
upon which the action is brought
Actions against a party who has removed
or disposed of his property, or is about to
do so, with intent to defraud his creditors
Actions against non-residents not found
in the Philippines, or person upon whom
summons may be served by publication
Note: Insolvency of defendant is not a ground for
attachment especially when defendant has not been
shown to have committed any act intended to defraud
its creditors (Spouses Yu v. Ngo Yet Te, G.R. No.
155868, February 6, 2007).
b. REQUISITES
Q: What are the requisites in the application for a
writ of preliminary attachment?
A:
1.
2.
3.
Filed at the commencement of action or
any time before entry of judgment (Sec.
1, Rule 57)
Application by any party and affidavit
showing: (Sec. 3, Rule 57)
a. Sufficient cause of action
b. Based on grounds mentioned in
Section 1
c. No other sufficient security
d. Amount due to applicant or value of
property he is entitled to recover
Filing of a bond (Sec. 4, Rule 57):
a. Executed in favor of an adverse party
in an amount fixed by court
To answer for all costs and damages
Note: No notice to the adverse party or hearing is
required as the time which the hearing will entail could
be enough to enable the defendant to abscond or
dispose of his property before the writ issues
(Regalado, Remedial Law Compendium, Vol I, p. 624,
2007 ed.).
Q: When may an order for preliminary attachment
be applied?
A: The writ may be applied:
1. At the commencement of the action, or
2. At any time before entry of judgment
(Sec. 1, Rule 57).
c. ISSUANCE AND CONTENTS; AFFIDAVIT AND
BOND
Q: When may an order of attachment be issued
and what should be contained therein?
A: (Sec. 2, Rule 57):
1. May be issued ex-parte or
2. upon motion after notice and hearing
Requiring sheriff to attach as much property which
is not exempt from execution, as may be sufficient
to satisfy the judgment
Q: What should the affidavit contain?
A: The Affidavit of the applicant, or some other
person who personally knows the facts, must show
that:
1. sufficient cause of action exists;
2. the case is one of those mentioned in
Section 1; and
3. there is no other sufficient security for
the claim sought to be enforced by the
action, and that the amount due the
applicant, or the value of the property the
possession of which he is entitled to
recover, is as much as the sum for which
the order is granted above all legal
counterclaims.
Q: What is the asis of the o d’s a ou t?
A: The bond shall answer for:
1. All the costs which may be adjudged to
the adverse party; and
2. All damages which he may sustain by
reason of the attachment.
Q: How may the writ be issued?
A: The writ of preliminary attachment may be
granted by:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
119
UST GOLDEN NOTES 2011
1.
2.
By motion and notice of hearing by the
court in which the action is pending and
may even be issued by the CA or the SC
(Sec. 2, Rule 57);
It may also be issued ex parte and even
before summons is served upon the
defendant. However, the writ may not be
enforced
and
may
not
validly
implemented unless preceded by a
service of summons, a copy of the
complaint,
the
application
for
attachment, the order of attachment and
the attachment bond (Davao Light &
Power Co., Inc. v. CA, 204 SCRA 343).
Q: What is the rationale for allowing the ex parte
issuance of a writ of preliminary attatchment?
A: An ex parte issuance of the writ is intended to
preempt any possible disposition of property by the
adverse property to the detriment of the attaching
creditor and thus defeat the very purpose of
attachment (Mindanao Savings & Loan Association,
Inc. v. CA, 172 SCRA 480).
Q: Alfred filed an action against Banjo for
collection of sum of money with an ex-parte
application for a writ of preliminary attachment
which was granted by the trial court. A notice of
garnishment was served by the sheriff upon the
bank and summons was subsequently served upon
Banjo. Banjo then filed a motion to dissolve the
writ of preliminary attachment on the ground that
the court did not acquire jurisdiction over his
person as the writ was served ahead of the
summons. Resolve the motion.
A: The motion should be denied. The fact that the
writ of preliminary attachment was served ahead of
the summons did not affect the jurisdiction of the
court over his person. It makes the writ
unenforceable, however, all that is required is to reserve the writ. (2005 Bar Question)
Note: Where the writ of preliminary attachment had
already been implemented, the subsequent service of
summons does not confer a retroactive acquisition of
jurisdiction over her person because the law does not
allow for retroactivity of a belated service. (Torres v.
Satsatin, G.R. No. 166759, November 25, 2009)
d. RULE ON PRIOR OR CONTEMPORANEOUS
SERVICE
Q: What is the Rule on Prior or Contemporaneous
Service of Summons?
A: Enforcement of the writ of preliminary
attachment must be preceded by or simultaneously
120
accompanied by service of summons, copy of
complaint, application and affidavits for the
attachment and the bond upon the adverse party.
Jurisdiction must first be acquired through valid
service of summons first before a preliminary
attachment may be enforced.
This Rule is not necessary for the validity of the
ISSUANCE of a writ of attachment (Davao Light v.
CA, 204SCRA 343 (1991)), it is however necessary
for the validity of the ENFORCEMENT of the writ.
(Onate v. Abrogar, 241 SCRA 659 (1995))
Q: What are the cases in which contemporaneous
service is not required?
A: The requirement of prior or contemporaneous
service of summons shall not apply where:
a. the summons could not be served despite
diligent efforts;
b. the defendant is a resident of the
Philippines temporarily absent therefrom;
c. the defendant is a non-resident of the
Philippines; or
d. The action is in rem or quasi in rem (Sec.
5, Rule 57).
e. MANNER OF ATTACHING REAL AND PERSONAL
PROPERTY
Q: How can a property be attached?
A: (Sec. 7, Rule 57)
1. Real property, growing crops or interest
therein
a. File a copy of the Order of
Attachment with the proper Registry
of Deeds and Occupant or his agent
within the province
b. Description of the property
c. Notice of attachment
2. Personal property capable of manual
delivery – sheriff taking into custody and
safely keeping it, he wll issue a receipt;
3. Stocks, shares or interest – Leaving copy
of the writ and notice of attachment with
President or Managing Agent
4. Debts and credits, bank deposits, financial
interests, royalties, commission and other
personal property not capable of manual
delivery - Leaving copy of the writ and
notice of attachment with person owing
or having custody over the property
5. Interest in the estate of a decedent –
Leaving copy of writ and notice of
attachment with:
a. Executor or administrator of estate
b. Clerk of Court where estate is being
settled
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
6.
c. Heir, devisee, or legatee;
Property in custodialegis – writ to the
court or agency and notice to custodian.
A:
1.
Q: What remedies are available if property is being
claimed by a third person?
A:
1.
2.
3.
File a Third Party Complaint or terceria
(Sec. 14, Rule 57)
File a Motion for Intervention
File an independent action to recover
property
f. DISCHARGE OF ATTACHMENT OF ATTACHMENT
AND COUNTERBOND
Q: How is attachment discharged?
A:
1.
If the attachment has already been
enforced, the party whose property has
been attached may file a motion to
discharge the attachment.
Note: This motion shall be with notice and
hearing. After due notice and hearing, the
court shall discharge the attachment if the
movant makes a cash deposit or files a
counter- bond executed to the attaching
party with the clerk of court where the
application is made in an amount equal to
that fixed by the court in the order of
attachment exclusive of costs (Sec. 12, Rule
57).
2.
Attachment may likewise be discharged
without the need for filing of a counterbond. This is possible when the party
whose property has been attached files a
motion to set aside or discharge the
attachment and during the hearing of the
motion he proves that:
a. The attachment was improperly
or irregularly issued or enforced
(Sec. 13, Rule 57);
b. That the bond of the attaching
creditor is insufficient or that
the attachment is excessive and
must be discharged as to the
excess (Sec. 13, Rule 57);
c. That the property is exempt
from execution, and as such is
also exempt from preliminary
attachment (Sec. 2, Rule 57).
Q: What are the grounds for the discharge of a
preliminary attachment?
2.
3.
It must be based on the following
grounds:
a. Writ was improperly or irregularly
issued or enforced (Sec. 13, Rule 57)
b. Insufficiency of bond (Sec. 13, Rule
57)
c. Excessive attachment (Sec. 13, Rule
57)
o Effect: Partial discharge (Regalado,
Remedial Law Compendium, Vol. I,
p. 683, 2005 ed.)
d. No ground for attachment (Sec. 1,
Rule 57)
e. Property is exempt from execution
(Secs 2 and 5, Rule 57)
f. Judgment is rendered against the
attaching creditor (Sec. 19, Rule 57)
g. Dissolution of attachment 1 month
next preceding the commencement
of
insolvency
proceedings
(Insolvency Law) (Feria, Civil
Procedure Annotated, Vol. II, p. 305,
2001 ed.)
Filing of a cash deposit or counterbond
(Sec. 12, Rule 57)
Notice and Hearing (Sec. 12, Rule 57)
Q: May an ex parte discharge of attachment be
allowed?
A: No. A discharge of attachment must be made
only after hearing.
Q: What is a counterbond?
A: Counterbonds are replacements of the property
formerly attached, and just as the latter, may be
levied upon after final judgment (Security Pacific
Assurance Corporation v. Tria- Infante, 468 SSCRA
526).
Q: Afte Defe da t AAA’s p ope ties
ee
attached, AAA filed a sufficient counterbond and
the trial court discharged the attachment. For
having suffered substantial prejudice due to the
unwarranted attachment, the trial court rendered
a judgment ordering plaintiff to pay damages since
the latter was not entitled to the attachment. AAA
o ed to ha ge plai tiff’s atta h e t o d a d
such was objected to by the plaintiff and his
sureties on the ground that the counter-bond
lifted plai tiff’s atta h e t o d f om all liability.
Rule o AAA’s otio .
A: AAA s otio should e g a ted si e the fili g
of a counterbond does not constitute a waiver of
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
121
UST GOLDEN NOTES 2011
his right to proceed against the attachment bond.
Furthermore, it is a condition in an attachment
bond that applicant will pay all the costs and
damages which may be adjudged to the adverse
party. (DM Wenceslao and Associates, Inc. v
Readycon Trading and Construction Corp., G.R. No.
154106, June 29, 2004)
g. SATISFACTION OF JUDGMENT OUT OF
PROPERTY ATTACHED
Q: How can the judgment be satisfied out of the
attached property?
A: (Sec. 15, Rule 57)
1. Payment to judgment creditor of all sales
of perishable or other property
2. If any balance remains, selling property as
may be necessary to satisfy the judgment
3. Collecting from all persons having
possession of credits belonging to the
judgment debtor and paying the proceeds
to judgment creditor
Note: If it remains unsatisfied, recovery may be had on
the counterbond upon demand and notice and hearing
to surety (Sec. 17, Rule 57).
Q: What is the order of satisfaction of judgment of
attached property?
A: Order of satisfaction of judgment of attached
property:
1. Perishable or other property sold in
pursuance of the order of the court;
2. Property, real or personal, as may be
necessary to satisfy the balance;
3. collecting from debtors of the judgment
obligor;
4.
Ordinary execution.
4. PRELIMINARY INJUNCTION
a. DEFINITION AND DIFFERENCES: PRELIMINARY
INJUNCTION AND TEMPORARY RESTRAINING
ORDER
Q: What is an injunction?
A: It is an ancillary or preventive remedy where a
court requires a person, a party or even a court or
tribunal either to refrain (prohibitory) from or to
perform (mandatory) particular acts during the
pendency of an action. (Riano, Civil Procedure: A
Restatement for the Bar, p. 564, 2009 ed.)
Q: Distinguish a main action for injunction from a
preliminary injunction (2006 Bar Question).
A:
INJUNCTION AS AN
ANCILLARY REMEDY
Exist as an incident to a
principal action
Seeks to preserve the
status quo or to prevent
future wrongs in order to
preserve and protect
certain interests or rights
during the pendency of
the
action
(CortezEstrada v. Heirs of
Domingo Samut, 451
SCRA 275, February 14,
2005).
INJUNCTION AS A MAIN
ACTION
Independent action
Seeks
a
judgment
embodying
a
final
injunction, to enjoin the
defendant
from
the
commission
or
continuance of a specific
act, or to compel a
particular act in violation
of the rights of the
applicant (Almeida v. CA,
448 SSCRA 681, January
17, 2005).
Q: What are the distinctions among a preliminary injunction, prohibition and status quo order?
A:
Injunction
Directed against a party in an
action
Prohibition
Directed against a court,
tribunal or person exercising
judicial powers
Does not involve the jurisdiction
of the court
Issued on the ground that the
court against whom the writ is
sought acted without or in
excess of jurisdiction
May be the main action (final
injunction) or provisional remedy
Special Civil Action / Main
action
122
Status Quo Order
Directed against the adverse party and is issued
by the court motu propio(Regalado, Remedial
Law Compendium, Vol. I, p. 721, 2005 ed.)
Cease and Desist Order intended to maintain
the last, actual, peaceable and uncontested
state of things preceding the controversy
without requiring the doing or undoing of an
act (Regalado, Remedial Law Compendium, Vol.
I, p. 722, 2005 ed.)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: Distinguish a preliminary injunction from a
temporary restraining order.
Q: What are the requisites for the grant of a writ
of preliminary injunction?
A:
Preliminary Injunction
b. REQUISITES
Temporary Restraining
Order
Specie
of
preliminary
injunction to maintain
status quo before the
resolution of the writ of
preliminary injunction on
the ground of irreparable
injury
A:
1.
2.
3.
Note: Injury is irreparable if
it is not susceptible to
mathematical computation
(DFA and BSP v. Falcon and
BCA I t’l Corp., G.R. No.
176657, September 1, 2010)
Effective during the
pendency of the action
unless earlier dissolved
Note: The trial court,
the Court of Appeals,
the Sandiganbyan or the
Court of Tax Appeals
that issued a writ of
preliminary injunction
against a lower court,
board, officer, or quasijudicial agency shall
decide the main case or
petition within six (6)
months
from
the
issuance of the writ.
(Sec. 5, Rule 58 as
amended by A.M. No.
07-7-12-SC)
Duration (non-extendible):
(Sec. 5, Rule 58)
1. If issued by
RTC/MTC
–
20days
from
notice to person
restrained
2. If issued by CA –
60 days from
notice
3. If issued by SC –
until lifted
Note: Prohibition against the
renewal applies only if the
same is sought under and by
reason of the same ground
for which it was originally
issued (Regalado, Remedial
Law Compendium, Vol. I, p.
725, 2005 ed.)
Note: TRO is deemed
automatically lifted after the
expiration of the effectivity
period
Notice and hearing
always required (Sec. 5,
Rule 58)
Can be issued to compel
the performance of an
act
GR: Notice and hearing
required
XPN: To prevent urgent /
irreparable injury, TRO
may be issued by
an
Executive
Judge
or
Presiding
Judge
for
72hours and a summary
hearing be subsequently
conducted within such
period
Cannot be issued to
compel the performance of
an act
4.
5.
Verified application stating the grounds
for its issuance
Applicant must establish that he has a
right to relief, a right in esse or a right to
be protected and the act against which
the injunction is directed is violative of
such right
Bond executed in favor of the person
enjoined to answer for all damages
Service of summons
XPNs:
a. Summons could not be served
personally or by substituted service
b. Adverse party is a resident but is
temporarily absent from the
Philippines
c. Adverse party is a non-resident
Notice and hearing (Sec. 5, Rule 58)
c. KINDS OF INJUNCTION
Q: What are the classes of injunction?
A:
Preliminary Injunction
(Ancillary Remedy)
Order granted at any
stage of the action or
proceeding prior to the
judgment or final order,
requiring a party or a
court, agency, or a person
to refrain from or to
perform particular act or
acts (Sec. 1, Rule 58)
GR: Bond is required
XPN: Exempted by court
(Sec. 4, Rule 58)
Final Injunction
(Injunction as main
action)
Issued after final
judgment of the case
permanently
restraining
the
defendant or making
the
preliminary
injunction permanent
(Sec. 9, Rule 58)
No bond is required
Q: What are the kinds of preliminary injunction?
A:
Preventive / Prohibitory
Injunction
Requires a person to
refrain from doing an act
To preserve status quo
Mandatory
Injunction
Requires
the
performance of a
particular act
To restore status quo
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
123
UST GOLDEN NOTES 2011
d. WHEN MAY WRIT BE ISSUED
Q: When may a writ for preliminary injunction be
issued?
Q: In what actions will a preliminary injunction not
lie?
A:
1.
A:
1.
In petitions for relief from judgment
entered through FAME;
2. In petitions for certiorari, prohibition, and
mandamus;
3. In actions for annulment of judgments
obtained through fraud;
4. In actions for annulment of judgment
which are not patent nullities ( want of
jurisdiction, lack of due process of law)
(BancoEspanol v. Palanca, 37 Phil. 921);
5. To restrain continued breach of valid
negative obligation;
6. To enjoin repeated trespass on land;
7. To restrain city from proceeding with
abatement of nuisance per accidens
before it has been judicially declared as
such;
8. To restrain voting of disputed shares of
stocks;
9. To restrain sheriff from selling property
on execution not belonging to judgment
debtor;
10. To restrain criminal prosecutions as an
exception, in the following cases:
a. To afford adequate protection
to constitutional rights of
accused;
b. When there is a prejudicial
question which is sub judice;
c. Prosecution under an invalid
law;
d. Double jeopardy is clearly
apparent;
e. Court wthout jurisdiction over
the offense;
f. Case of persecution rather than
prosection;
g. Charges manifestly false and
motivated
by
lust
for
vengeance;
h. There is clearly no prima facie
case against accused and
motion to quash on said ground
is denied; and
i.
Preliminary injunction issued by
SC to prevent threatened
unlawful arrest of petitioners.
124
Against Department of Public Works and
Highways
to
stop
government
infrastructure projects (Secs. 3 & 4,
RA8975)
XPNs:
a. Extreme urgency
b. Matter involves a constitutional
issue
c. Grave injustice and irreparable
injury will arise
d. Supreme Court may issue the
writ of preliminary injunction
Note: Injunctive writs cannot be issued
against any person or entity involved in
the execution, implementation and
operation
of
government
infrastructure projects (P.D. 1818).
2.
3.
4.
5.
6.
7.
8.
9.
Act/s perpetrated outside the inferior
ou ts te ito ial ju isdi tio
Against judgments of coordinate courts
and quasi judicial bodies of equal rank
Issuance will effectively dispose of the
main case without trial and/or due
process (Bo odi
. Nat’l Po er
Corporation Employees Consolidated
Union, G.R. No. 162716, September 27,
2006)
Labor disputes
In issuance of licenses, concessions as to
disposition,
exploitation,
utilization,
exploration and/or development of
natural resources (Sec. 1, PD605)
Implementation
of
Comprehensive
Agrarian Reform Program, collection of
taxes, criminal prosecutions
Mandatory foreclosure of a mortgage by
a government financial institution (Sec. 2,
P.D. 385)
XPN: After hearing, it is established
that 20% of outstanding arrearages is
paid after the filing of the
foreclosure proceedings
Act/s sought to be enjoined already
consummated
XPN:
Preliminary
mandatory
injunction may be availed of such
that the dispossessor in forcible
entry can be compelled to restore
possession to the original possessor
and an electric company can be
compelled to provisionally reconnect
the service it had disconnected.
(Regalado,
Remedial
Law
Compendium, Vol. I, p. 718, 2005 ed.)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
10. To transfer the property in litigation from
the possession of one party to another
where the legal title is in dispute and the
party
having
possession
asserts
ownership thereto (Almeida v. CA and Sy,
G.R. No. 159124, January 17, 2005)
XPN:
a. Forcible entry and unlawful
detainer cases – preliminary
mandatory injunction may be
issued (Sec. 15, Rule 70)
11. Generally, injunction will not be granted
to take property out of the possession of
one party and place it in another whose
title not clearly established;
12. When action for damages would
adequately compensate injuries caused
(Golding v. Balatbat, 36 Phil.941);
13. To prevent directors from discharging
their offices and restoring former
directors;
14. To restrain criminal prosecution where
the Ombudsman had authorized the
Special prosecutor to conduct a
preliminary investigation or to file an
injunction.
Note: Only the SC may issue injunction against the
government, officials or any person or entity whether
public or private acting under the government
direction, to restrain, prohibit, or compel acts pursuant
to the implementation and completion of
infrastructure projects. (Sec 3, RA 8975)
e. GROUNDS FOR ISSUANCE
Q: What are the grounds for the issuance of a
preliminary injunction?
A: (Sec. 3, Rule 58)
1. Clear legal right of the applicant
2. The commission, continuance or nonperformance of the act or acts
complained of will cause injustice to the
applicant
3. Person against whom injunction is sought
is doing, threatening, attempting,
procuring or suffering to do some act or
a ts i
iolatio of appli a t s ights
tending to render the judgment
ineffectual.
f. GROUNDS FOR OBJECTION, DISOLUTION OF
INJUNCTION OR RESTRAINING ORDER
1.
2.
3.
4.
Insufficiency of application for injunction
or restraining order
Issuance or continuance of injunction or
restraining order causes irreparable injury
while applicant may be fully compensated
for damages by bond
Extent of injunction or restraining order is
too great
Effect: modification
Insufficiency or defective bond (Sec. 7,
Rule 58).
Note: Filing of verified motion and bond as well as
hearing is required
g. DURATION OF TRO
Q: What is the duration of a TRO?
A:
1.
2.
20 days from notice : if great or
irreparable injury would result to the
applicant before the matter can be heard
on notice.
72 hours from issuance (issued ex parte) :
if the matter is of extreme urgency and
the applicant will suffer grave injustice
and irreparable injury.
Note: after conducting a summary hearing within the
72 hours period until the application for Preliminary
injunction can be heard, an extension of the 72-hour
TRo may be asked. The total period of effectivity of the
TRO shall not exceed 20 days including the 72 hours.
While the efficacy of the TRO is ordinarily nonextendible, and the trial courts have no discretion to
extend it considering the mandatory tenor of Rule 58,
there is no reason to prevent a court from extending
the 20-day period when it is the parties themselves
who ask for such extension or for the maintenance of
the status quo. (Federation of Land Reform Farmers of
the Philippines v. CA, 246 SCRA 175 (1995)).
Note: a TRO issued by the trial court or CA expires
automatically upon the lapse of the 20 day period and
60 day period respectively. There is no need for any
judicial declaration of dissolution (Paras v. Roura, 163
SCRA 1 (1988))
Q: What happens to the TRO if before the
expiration of the 20-day period, the application for
preliminary injunction is denied?
A: It will be automatically vacated. (Bacolod City
Water District v. Labayan, G.R. No. 157494,
December 10, 2004)
Q: What are the grounds for objections or
dissolution of injunction or restraining order?
A: (Sec. 6, Rule 58)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
125
UST GOLDEN NOTES 2011
Q: Is a second application for preliminary
injunction allowed?
A: A second application for injunction, which rests
in the sound discretion of the court, will ordinarily
be denied unless it is based on facts unknown at
the time of the first application. (Reyes v. Court of
Appeals and Sun Life Insurance Office, Ltd., G.R. No.
87647, May 21, 1990).
h. IN RELATION TO RA 8975, BAN ON ISSUANCE OF
TRO OR WRIT OF INJUNCTION IN CASES
INVOLVING GOVERNMENT INFRASTRUCTURE
Q: During the Marcos regime, a reclamation
contract was signed between the City of Mandaue
and MALAYAN. However, that transaction
appeared to be unauthorized. After sometime a
confirmatory agreement was entered by the
parties whereby MALAYAN bound itself to
undertake the project at its own expense. After
the People power, the plan was resubmitted to
the President for approval, the City of Mandaue
however started negotiated and contracted with
FF Cruz & Co. for the reclamation project.
MALAYAN filed a protest with the OP. The
Executive Secretaery disapproved the project with
MALAYAN, this prompted MALAYAN to file with
the RTC a petition for prohibitory and mandatory
preliminary injunction. RTC issued a TRO. Upon
posting a bond, injunction was issued. Whether or
not a writ of preliminary injunction may be issued
against the government?
A: Under PD 1818 and RA 8735, injunction is not
available to stop infrastructure projects of the
government (Malayan Integrated Industries vs. CA,
GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre
and Stevedoring Services, 475 SCRA 426). This
includes arrestre and stevedoring services.
Note: Section 1 of PD 1818 provides that:No court in
the Philippines shall have jurisdiction to issue any
restraining order, preliminary injunction, or preliminary
mandatory injunction in any case, dispute, or
controversy involving an infrastructure project, or a
mining, fishery, forest or other natural resource
development project of the government, or any public
utility operated by the government, including among
others public utilities for the transport of the goods or
commodities stevedoring and arrastre contracts, to
prohibit any person or persons, entity or government
official from proceeding with, or continuing the
execution or implementation of any such project, or
the operation of such public utility, or pursuing any
lawful activity necessary for such execution,
implementation or operation.
126
i. RULE ON PRIOR OR CONTEMPORANEOUS
SERVICE OF SUMMONS IN RELATION TO
ATTACHMENT
Q: What is the rule on prior or contemporaneous
service of summons in relation to attachment?
A: No levy on attachment pursuant to the writ of
preliminary attachment shall be enforced unless it
is preceded, or contemporaneously accompanied,
by theservice of summons, together with a copy of
the complaint, the application forattachment, the
appli a t s affidavit and bond, and the order and
writ ofattachment, on the defendant within the
Philippines.
The requirement of prior or contemporaneous
service of summons shall not apply in the following
instances:
1. Where the summons could not be served
personally or by substituted servicedespite
diligent efforts;
2.
The defendant is a resident of the
Philippines who is temporarily out of the
country;
3. The defendant is a non-resident; or
4.
The action is one in rem or quasi in
rem (Sec. 5).
5. RECEIVERSHIP
Q: What is Receivership?
A: Receivership is a provisional remedy wherein the
court appoints a representative to preserve,
administer, dispose of and prevent the loss or
dissipation of the real or personal property during
the pendency of an action.
It may be the principal action itself or a mere
provisional remedy; it can be availed of even after
the judgment has become final and executory as it
may be applied for to aid execution or carry
judgment into effect.
Q: Who is a receiver?
A: Person appointed by the court in behalf of all the
parties to an action for the purpose of preserving
the property involved in the suit and to protect the
rights of all the parties under the discretion of the
court.
Q: Can a party to the action be appointed as a
receiver?
A:
GR: Cannot be appointed
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
XPN: Consented to by all parties
Note: A clerk of court cannot be appointed as a
receiver (Abrigo v. Kayanan, G.R. No. L-28601, March
28, 1983)
b. REQUISITES
Q: What are the requisites in the application for
receivership?
A:
Q: Which court may appoint a receiver?
1.
A: (Sec. 1, Rule 59)
1. Court where action is pending
2. Court of Appeals or Supreme Court or a
member thereof
2.
Note: During pendency of appeal, appellate court
may allow receiver to be appointed by court of
origin
Q: What is the effect of a contract executed by a
receiver without court approval?
A: Such contract will constitute his personal
undertakings and obligations (Pacific Merchandising
Corp. v. Consolacion Insurance & Surety Co., G.R.
No. L-30204, October 29, 1976)
Note: Receivership cannot be effected on a property in
custodialegis (LizarragaHnos. V. Abada, 40phil124).
But a receiver can be appointed where a property in
custody of an administrator or executor is in danger of
imminent loss or injury. (Dolor v. Sindian, G.R. No. L27631, April 30, 1971)
a. CASES WHEN A RECEIVER MAY BE APPOINTED
3.
4.
5.
c. REQUIREMENTS BEFORE ISSUANCE OF AN
ORDER
Q: What is the requirement before an order of
appointment may be issued?
A: The applicant must file a bond executed in favor
of the party against whom the application is
presented, in an amount fixed by court, to pay
damages in case receivership is procured without
sufficient cause. (Sec. 2, Rule 59)
Note: The court may require an additional bond for
further security. (Sec. 2, Rule 59)
Q: In what cases may a receiver be appointed?
A: (Sec. 1, Rule 59)
1. Applicant has an interest in the property
or fund subject of the action is in danger
of being lost, removed, or materially
injured
2. Mortgaged property is in danger of being
dissipated or materially injured and that
its value is probably insufficient to
discharge the mortgage debt or
3. Stipulation in the contract of mortgage
4. To preserve the property after judgment
during the pendency of the appeal or to
dispose it according to judgment
5. To aid execution when execution has
been returned unsatisfied
6. Judgment debtor refuses to apply his
property in satisfaction of the judgment
or to carry on the judgment
7. Appointment of receiver is most
convenient and feasible means of
preserving, administering or disposing of
the property in litigation
Party applying for receivership has an
existing interest in the property in
litigation
Verified application filed at any stage of
the proceedings even after final
judgment, prior to the satisfaction of
judgment (Sec. 1, Rule 59)
Posting of bond (Sec. 2, Rule 59)
Grounds stated in Sec. 1, Rule 59
Receiver must be sworn to perform his
duties faithfully
d. POWERS OF A RECEIVER
Q: What are the powers of a receiver?
A: (Sec. 6, Rule 59)
1. Power to bring and defend actions in his
own name
Note: No action may be filed by or against a
receiver without leave of court which
appointed him
2.
3.
4.
5.
6.
7.
8.
9.
Take and keep possession of the property
in controversy
Receive rents
Collect debts due to himself as receiver or
to the fund, property, estate, person or
corporation of which he is a receiver
Compound for and compromise debts
collected
Make Transfers
Pay outstanding debts
Divide money and other property that
shall remain among the persons legally
entitled to receive the same
Invest funds in his hands only by order of
the court upon written consent of all the
parties to action;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
127
UST GOLDEN NOTES 2011
10. Other acts which the court may authorize
Note: Funds in the hands of a receiver may be invested
only by court order and written consent of all parties
to an action.
e. TWO KINDS OF BONDS
Q: What is the 2-bond requirement in
receivership?
A:
1.
2.
Bond posted by the applicant (Sec. 2, Rule
59)
Bond posted by receiver appointed (Sec.
4, Rule 59)
f. TERMIINATION OF RECEIVERSHIP
Q: What are the grounds for the discharge of
receiver?
A:
1.
Posting of counterbond by adverse
party (Sec. 3, Rule 59)
Note: Where counterbond is
insufficient or defective, receiver may
be re-appointed (Sec. 5, Rule 59)
2.
3.
4.
5.
Appointment of receiver was made
without sufficient cause (Sec. 3, Rule
59)
I suffi ie t o defe ti e appli a t s
bond (Sec. 5, Rule 59)
I suffi ie t o defe ti e e ei e s
bond (Sec. 5, Rule 59)
Receiver no longer necessary (Sec. 8,
Rule 59)
Q: How is receivership terminated?
A: (Sec. 8, Rule 59)
1. By court motupropio or on motion by
either party
2. Based on the following grounds:
a. Necessity for receiver no longer
exists
b. Receiver asserts ownership over the
property (Martinez v. Graño, G.R.
No. L-25437, August 14, 1926)
3. After due notice and hearing to all
interested party
6. REPLEVIN
Q: What is replevin?
A: Replevin is a proceeding by which the owner or
one who has a general or special property in the
thing taken or detained seeks to recover possession
128
in specie, the recovery of damages being only
incidental (Am. Jur. 6). Replevin may be a main
action or a provisional remedy. As a principal action
its ultimate goal is to recover personal property
capable of manual delivery wrongfully detained by
a person. The main action for replevin is primarily
possessory in nature and generally determines
nothing more than the right of possession.
Note: A writ of replevin may be served anywhere in
the Philippines (Regalado, Remedial Law Compendium,
Vol. I, p. 749, 2005 ed.)
Q: Distinguish
attachment.
replevin
from
preliminary
A:
Replevin
Recovery of possession of
personal property is the
principal relief and
damages are incidental
This is available before
defendant files an answer
Available only where
defendant is in actual or
constructive possession of
personal property involved
Extends only to personal
property capable of
manual delivery
Used to recover personal
property even if not being
concealed, removed or
disposed
Cannot be availed of when
property is in
custodialegis(under
attachment) or seized
under search warrant
Property of GOCCs cannot
be reached
Sheriff takes possession of
the property subject of the
replevin and hold the
same for a period of 5
days after which said
property will be delivered
to the party who obtained
the writ.
Bond to be posted is
double the value of the
property sought to be
recovered
Preliminary Attachment
Available even if
recovery of personal
property is only an
incidental relief
Available from
commencement but
before entry of
judgment
May be resorted to even
if personal property is in
the custody of a third
person
Extends to all kinds of
property whether real,
personal or incorporeal
Recover property being
concealed, removed or
disposed
Can be resorted to even
if property is in
custodialegis
Properties of GOCCs
may be reached if
utilized in its proprietary
function.
Sheriff does not take
possession of the
property attached
except contructively
placing it under custodia
legis.
Bond amount is fixed by
court and does not
exceed the claim or
value of the property to
be attached
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Note: These remedies cannot be availed of in the same
case.
1.
Q: To be able to secure financial accommodations
from Makati Leasing, Wearever discounted and
assigned several receivables under a Receivable
Purchase Agreement. To secure the collection of
the receivables assigned, private respondent
executed a chattel mortgage over certain
machineries which were bolted to the ground.
Upon default Makati Leasing move for
extrajudicial foreclosure of the mortgage
properties and filed an action for replevin which
was granted by the court. Can the machineries
bolted to the ground be a subject of replevin?
2.
3.
4.
Applicant is the owner of the property
claimed, particular description of such,
entitlement to possession
Property is wrongfully detained, alleging
cause of detention according to
appli a t s knowledge, information and
belief
Property has not been taken for tax
assessment or fine, or seized by writ of
execution, preliminary attachment, in
custodialegis, if so seized, that it is
exempt or should be released from
custody
Actual market value of the property
c. AFFIDAVIT AND BOND; REDELIVERY BOND
A: Machineries bolted to the ground are real
properties that may not be the subject to replevin
(Makati Leasing and Finance Corporation v.
Wearever Textile Mills Inc. GR No L- 58469, May 16,
1983).
a. WHEN MAY WRIT BE ISSUED
Q: When may a writ of replevin be issued?
A: This may only be obtained when the defendant
in the action has not yet filed his answer to the
complaint where it is necessary to:
1. P ote t plai tiff s ight of possessio to
property
2. Prevent defendant from destroying,
damaging or disposing of the property
Q: Can a writ of replevin be issued anywhere in the
Philippines?
A: Under the Resolution of the Supreme Court
enbanc dated January 11, 1983, providing for the
interim rules and guidelines relative to the
implementation of BP 129, a writ of replevin like
the one issued in the present case may be served
anywhere in the Philippines (Fernandez v.
International Corporate Bank now Union Bank of
the Philippines, GR No 131283, October 7, 1999).
Q: What are the contents of the affidavit?
A: Affidavit, alleging:
1. That the applicant is the owner of property
claimed, describing it or entitled to its possession;
2. That the property is wrongfully detained by the
adverse party, alleging cause of its detention;
3. That the property has not been distrained or
taken for tax assessment or fine or under writ of
execution/attachment
or
placed
under
custodialegis or if seized, that it is exempt or should
be released; and
4. The actual market value of the property.
Q: What is redelivery bond?
A: Bond, which must be double the value of
property, to answer for the return of property if
adjudged and pay for such sum as he may recover
from the applicant (Sec. 2).
Q: When is it required?
A: It is required that the redelivery bond be filed
within the period of 5 days after the taking of the
property. The rule is mandatory (Yang vs. Valdez,
177 SCRA 141).
b. REQUISITES
Q: What are the requisites in applying for
replevin?
d. “HERIFF’“ DUTY IN THE IMPLEMENTATION OF
THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD
PARTY
A:
Q: What are the duties of the sheriff?
1.
2.
Filing of Affidavit by any party before an
answer is filed
Posting of bond double the value of the
property
Q: What are the contents of the affidavit?
A:
1.
2.
Serve a copy of the court order,
application, affidavit and bond upon the
adverse party
Take the property and retain it in his
custody
A: (Sec. 2, Rule 60)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
129
UST GOLDEN NOTES 2011
3.
4.
5.
If property is concealed, make a public
demand for the delivery of the property
If property is not delivered, sheriff must
cause the building or enclosure to be
broken and take property and keep such
in his custody
Deliver the property to the party entitled
to such upon receiving his fees.
Q: When may a property subject of replevin be
returned?
rules that are applicable only to specific special civil
actions (sec. 3) The fact that an action is subject to
special rules other than those applicable to ordinary
civil actions is what makes a civil action special.
2. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL
ACTIONS
Q: Distinguish ordinary civil action from special
civil action.
A:
A:
1.
2.
3.
Filing of a redelivery bond double the
value of the property
Plai tiff s o d is i suffi ie t o defe ti e
and is not replaced with a proper bond
Property is not delivered to the plaintiff
for any reason
Ordinary Civil Action
Must be based on a
cause of action – act
or
omission
in
violation of the rights
of another
Q: What are the remedies of a third person whose
property is taken by virtue of a replevin?
A:
1.
2.
3.
Third party shall file and serve affidavit
upon sheriff and applicant stating his
entitlement to possession
Sheriff shall return the property to third
person unless applicant files a bond (same
amount as the value of the property)
approved by court to indemnify the third
person
Claim for damages upon said bond must
be filed within 120days from date of filing
of the bond
Q: Is the Rule on Prior or Contemporaneous
Service of Summons observed in Replevin?
A: Yes. Although the writ of replevin may be issued
ex-parte, it cannot be implemented or enforced if
not preceded or accompanied by a service of
summons.
S. SPECIAL CIVIL ACTIONS
1. NATURE OF SPECIAL CIVIL ACTIONS
Q: What are Special Civil Actions?
A: Since a civil action in general 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], Rule 1, Rules of Court), a special
civil action is generally brought or filed for the same
purpose.
Note: although both types of actions are governed by
the rules for ordinary civil actions, there are certain
130
Venue is determined
either
by
the
residences of the
parties where the
action is personal or
by the location of the
property where the
action is real
May be filed in
Municipal Trial Court
or the Regional Trial
Court
depending
upon
the
jurisdictional amount
or nature of the
action
May be commenced
only by the filing of
complaint
Special Civil Action
Cause
of
action
not
necessarily needed
Examples:
1. Declaratory relief –
action is brought before
there is any breach
2. Interpleader – plaintiff
files a complaint even if
he has not sustained
actual transgression of
his rights
Not necessarily true as in quo
warranto, the venue is where
the Supreme Court or Court
of Appeals if the petition is
commenced in any of these
courts without taking into
consideration the residences
of the parties
Some actions may be filed
only in the Municipal Trial
Court, some cannot be
commenced therein
May be commenced by the
filing of a complaint or
petition
Q: What are the special civil actions under the
Rules of Court?
A:
1.
2.
3.
4.
5.
6.
7.
Interpleader (Rule 62)
Declaratory relief and similar remedies
(Rule 63)
Review of judgments and final orders of
the COMELEC and the Commission on
Audit (Rule 64)
Certiorari, prohibition and mandamus
(Rule 65)
Quo warranto(Rule 66)
Expropriation (Rule 67)
Foreclosure of real estate mortgage(Rule
68)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
8.
9.
Partition (Rule 69)
Forcible entry and unlawful detainer
(Rule 70)
10. Contempt (Rule 71)
Q: What are the three special civil actions which
are within the jurisdiction of inferior courts?
A:
1.
2.
3.
Interpleader, provided that the amount is
within the jurisdiction of such inferior
court
Ejectment suits
Contempt
Q: What special civil actions are initiated by
complaints and initiated by petitions?
A:
1.
2.
by complaint
a. interpleader
b. expropriation
c. foreclosure of real estate mortgage
d. partition
e. forcible entry and unlawful detainer
by petition
a. declaratory relief
b. review of judgments and final
orders or resolutions of the
COMELEC / COA
c. Certiorari
d. Prohibition
e. Mandamus
f. Quo Warranto
g. Contempt
3. JURISDICTION AND VENUE
Q: Who has jurisdiction over special civil actions
and where should it be filed?
A:
Jurisdiction
Venue
Interpleader
MTC – where the value of
Where the plaintiff or
the claim or the personal
any of the principal
property does not exceed
plaintiff resides or where
P300,000 or P400,000 in
Metro Manila or where the the defendant or any of
value of the real property the principal defendants
resides
does not exceed P20,000
or P50,000 in Metro
Manila.
RTC – if the value exceeds
the above amounts or if
the subject matter is
exclusively within the
jurisdiction of the RTC
Note: The venue of special
civil actions is governed by
the general rules on
venue, except as
otherwise indicated in the
particular rule for said
special civil action.
Declaratory Relief
RTC
Note: It would be error to
file the petition with the SC
which has no original
jurisdiction to entertain a
petition for declaratory relief
(Tano v. Socrates, G.R. No.
110249, Aug. 14, 1997)
Where the petitioner or
the respondent resides
Expropriation
Land: where the
RTC (incapable of
property is located
pecuniary estimation)
(Barangay San Roque v.
Personal property: the
Heirs of Pastor, G.R. No.
place where the plaintiff
138896, June 20, 2000)
or defendant resides
Certiorari, Prohibition, Mandamus
RTC: if it is directed
against a municipal trial
court, a corporation, a
board, an officer or a
person.
CA or with the SB,
whether or not the
same is in aid of the
ou t s appellate
jurisdiction.
RTC, CA, SC,
Sandiganbayan COMELEC
in aid of its appellate
jurisdiction (A.M. No. 077-12-SC)
If the petition involves
an act or an omission of
a quasi-judicial agency,
unless otherwise
provided by law or the
Rules, the petition shall
be filed with and be
cognizable only by the
Court of Appeals.
In election cases
involving an act or
omission of MTC /RTC,
it shall be filed
exclusively with the
COMELEC, in aid of its
appellate jurisdiction
(Sec. 4, Rule 65)
Quo Warranto
With the SC, CA, or in
the RTC exercising
jurisdiction over the
territorial area where
the respondent or any
of the respondents
RTC, CA, SC, SB in aid of its
resides. When the
appellate jurisdiction
Solicitor General
commences the action,
it may be brought in a
RTC in the City of
Manila, in the CA, or in
the SC (Sec. 7, Rule 66)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
131
UST GOLDEN NOTES 2011
Note: Subject to the
principle of Hierarchy of
Courts
Contempt
Where the charge for
indirect contempt has
been committed against
RTC or a court of
equivalent or higher
rank, or against an
officer appointed by it,
the charge may be filed
with such court.
Where such contempt
has been committed
against a lower court,
the charge may be filed
with the RTC of the
place in which the lower
court is sitting; but the
proceedings may also
be instituted in such
lower court subject to
appeal to the RTC of
such place (Sec. 5, Rule
70)
Forcible Entry
Metropolitan Trial Courts;
Where the property is
covered by Rule on
located
Summary Procedure
Unlawful Detainer
Metropolitan Trial Courts;
Where the property is
covered by Rule on
located
Summary Procedure.
Partition
1. Real property –
where the property
RTC
is located
(incapable of pecuniary
2. Personal property
estimation)
– the place where
the plaintiff or
defendant resides
(Sec. 13, Rule 69)
Foreclure of REM
RTC (incapable of
pecuniary estimation)
Where the land or any
(Barangay San Roque v.
part thereof is located
Heirs of Pastor, G.R. No.
138896, June 20, 2000)
Q: Distinguish
intervention.
between
INTERPLEADER
Special civil action,
independent
and
original
Commenced by the
filing of a complaint.
Filed by a person who
has no interest in the
subject matter of the
action or if he has an
interest, the same is
not disputed by the
claimants.
The defendants are
brought
into
the
action only because
they are impleaded as
such in the complaint.
INTERVENTION
Not an original action but
mere
ancillary
and
depends
upon
the
existence of a precious
pending action.
Commenced by a motion
to intervention filed in a
pending case attaching
thereto the pleading- inintervention.
Filed by a person who has a
legal interest in any of the
following:
a. The subject matter of
the litigation;
b. The success of either
of the parties; or
c. The success of both of
the parties; or
d. He may be adversely
affected
by
the
disposition
or
distribution
of
property
in
the
judgment.
If
a
complaintinintervention is filed, the
defendants are already
parties to an existing suit
not because of the
intervention but because
of the original suit.
a. REQUISITES FOR INTERPLEADER
Q: What are the requisites in order that the
remedy of interpleader may be availed of?
A:
1.
2.
3.
4. INTERPLEADER
4.
Q: What is an interpleader?
5.
132
and
A:
MTC, RTC, CA, SC
A: It is a special civil action filed by a person against
whom two conflicting claims are made upon the
same subject matter and over which he claims no
interest, to compel the claimants to interplead and
to litigate their conflicting claims among
themselves. (Sec. 1, Rule 62).
interpleader
6.
Plaintiff claims no interest in the subject
matter or his claim is not disputed
Two or more claimants asserting
conflicting claims
The subject matter must be one and the
same
Person in possession or obliged files a
complaint.
The parties to be interpleaded must make
effective claims.
Payment of docket and other lawful fees.
Note: Upon filing of complaint, the court shall issue an
order requiring conflicting claimants to interplead.
(Sec. 2, Rule 62)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
2.
3.
4.
b. WHEN TO FILE
Q: When must an action for interpleader be filed?
A: Within a reasonable time after a dispute has
arisen without waiting to be sued by claimants and
before such is barred from laches. (Feria, Civil
Procedure Annotated, Vol. II, p. 425, 2001 ed.)
Q: Which court
interpleader?
has
jurisdiction
over
an
A: Inferior courts have jurisdiction so long as the
amount involved is within their jurisdiction
Cross-claim
Third-party complaints
Responsive pleadings
Q: May an interpleader be availed of the resolve
breach of undertaking?
A: No. Such issue should be resolved in an ordinary
civil action for specific performance or other relief
(Beltran v. PHHC, G.R. No. L-25138, August 28,
1969)
5. DECLARATORY RELIEF AND SIMILAR REMEDIES
Q: What is a declaratory relief?
Q: Should there be service of summons in
interpleader?
Note: Claimants shall have 15days to file an answer
and such answer must be served upon the plaintiff and
co-defendants. (Sec. 5, Rule 62).
A: A special civil action brought by a person
interested under a deed, will, contract or other
written instrument, or whose rights are affected by
a statute, executive order or regulation, ordinance
or any other governmental regulation, before
breach or violation thereof, asking the court to
determine any question of construction or validity
arising, and for a declaration of his rights or duties
thereunder.
Q: What is the effect of failure of a claimant to file
an Answer?
Q: What is the purpose of an action for declaratory
relief?
A: Upon motion, the court may declare such
claimant in default and render a judgment barring
him from any claim in respect to the subject matter.
(Sec. 5, Rule 62)
A:
A: Summons and copies of the complaint and order
shall be served upon conflicting claimants. (Sec. 3,
Rule 62)
1.
Q: May a motion to dismiss be filed?
2.
A: Yes. It may be filed by any of the claimant within
the time for filing an answer. (Sec. 4, Rule 62)
Q: What are the grounds for filing a motion to
dismiss?
To
determine
any
question
of
construction
or
validity
or
constitutionality of an instrument,
ordinance or regulation
Declaration of rights and duties
thereunder
Q: Distinguish declaratory judgment from ordinary
judgment.
A:
A: (Sec. 4, Rule 62)
1. Impropriety of the interpleader action
2. Grounds specified under Rule 16 of the
Rules of Court
Q: What is the effect of filing a motion to dismiss?
A: Period to file an answer is tolled and if the
motion is denied, the answer may be filed within
the remaining period which shall not be less than
5days from notice of denial. (Sec. 4, Rule 62)
Q: What are the other allowed pleadings in an
interpleader?
A: (Sec. 5, Rule 62)
1. Counterclaim
DECLARATORY
JUDGMENT
Declaratory
judgment
stands by itself and no
executory
process
follows
Intended to determine
any
question
of
construction or validity
prior to breach or
violation
ORDINARY JUDGMENT
Ordinary
judgment
involves executor or
coercive relief
Intended to remedy or
compensate
injuries
already suffered
a. WHO MAY FILE THE ACTION
Q: Who may file an action for declaratory relief?
A: Any person:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
133
UST GOLDEN NOTES 2011
1.
2.
Interested under a deed, will,
contract or other written instrument
Whose rights are affected by a
statute,
executive
order
or
regulation, ordinance or any other
governmental regulation
b. REQUISITES OF ACTION FOR DECLARATORY
RELIEF
Q: What are the requisites of an action for
declaratory relief?
A:
1.
2.
Filing of Petition before there is a breach
or violation
Subject matter is a deed, will, contract,
written instrument, statute, executive
order, regulation or ordinance
A: Court may motupropio or upon motion refuse
based on the following grounds:
1. A decision will not terminate the
uncertainty or controversy which gave
rise to the action
2. Declaration or construction is not
necessary and proper under the
circumstances
Note: Discretion to refuse does not extend to actions
for reformation of an instrument quiet title or remove
clouds or to consolidated ownership in a pacto de retro
sale. (Regalado, Remedial Law Compendium, Vol. I, p.
769, 2005 ed.)
Q: Can the court exercise discretion in application
for declaratory relief?
A:
1.
Note: The enumeration of the subject
matter is exclusive, hence, an action not
based on any of the enumerated subject
matters cannot be the proper subject of
declaratory relief. (Riano, Civil Procedure: A
Restatement for the Bar, p. 613, 2009 ed.)
3.
4.
5.
6.
There is justiciable controversy
Issue is ripe for judicial determination
(Republic v. Orbecido III, G.R. No. 154380,
October 5, 2005), i.e. litigation is
imminent and inevitable (Tolentino v.
Board of Accountancy, G.R. No. L-3062,
September 28, 1951)
Adequate relief is not available through
other means or other forms of action or
proceedings (Ollada v. Central Bank, G.R.
No. L-11357, May 31, 1962)
The controversy is between persons
whose interests are adverse;
Q: To whom shall notices be given?
A:
1.
2.
Solicitor general if subject matter
involves:
a. Validity of statute, executive order,
regulation
or
governmental
regulation
b. Constitutionality of local government
ordinance
Prosecutor or attorney of the local
government unit if subject matter
involves validity of local government unit
c. WHEN COURT MAY REFUSE TO MAKE JUDICIAL
DECLARATION
Q: When may a court refuse to make a judicial
declaration?
134
2.
In declaratory relief, the court is given
the discretion to act or not to act on the
petition. It may therefore choose not to
construe the instrument sought to be
construed or could refrain from
declaring the rights of the petitioner
under the deed or the law. A refusal of
the court to declare rights or construe
an instrument is actually the functional
equivalent of the dismissal of the
petition.
On the other hand, the court does not
have the discretion to refuse to act with
respect to actions described as similar
remedies. Thus, in an action for
reformation of an instrument, to quiet
or to consolidate ownership, the court
cannot refuse to render a judgment (Sec.
5, Rule 63).
d. CONVERSION TO ORDINARY ACTION
Q: When may an action for declaratory relief be
converted into an ordinary action?
A: After filing of petition for declaratory relief but
before the final termination of the case or rendition
of judgment, a breach or violation of an instrument,
statute, executive order, regulation or ordinance
takes place. (Sec. 6, Rule 63)
Q: Distinguish Ordinary Civil Action from Special
Civil Action for Declaratory Relief.
A:
1. Ordinary civil action – plaintiff alleges that his
right has been violated by the defendant; judgment
rendered is coercive in character; a writ of
execution may be executed against the defeated
party.
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
2. Special civil action of declaratory relief – an
impending violation is sufficient to file a declaratory
relief; no execution may be issued; the court merely
makes a declaration.
Q: Is a third-party complaint proper in an action
for declaratory relief?
A: No. Because in a third-party complaint, such
person seeks to obtain contribution, indemnity,
subrogation or other reliefs and a declaratory relief
is confined merely to the interpretation of the
terms of a contract. (Commission of Customs v.
Cloribel, G.R. No. 21036, June 30, 1977).
Q: What are the instances wherein a declaratory
relief is unavailable?
A:
1.
To obtain judicial declaration of
citizenship;
2. To establish illegitimate filiation and
determine hereditary rights;
3. The subject of the action is a court
decision;
4. Actions to resolve political questions;
5. Those determinative of the issues rather
than a construction of definite status,
rights and relations;
6. Terms of assailed ordinances are not
ambiguous or of doubtful meaning;
7. In a petition to seek relief from a moot
and academic question;
8. Where the contract or statute on which
action is based has been breached;
9. When the petition is based on the
happening of a contingent event;
10. When the petitioner is not the real party
in interest; and
11. Where the administrative remedies have
not yet been exhausted.
e. PROCEEDINGS CONSIDERED AS SIMILAR
REMEDIES
Q: What are the similar reliefs referred to under
Rule 63?
A:
1.
2.
3.
Reformation of an instrument
Quiet title to real property or to remove
clouds
Consolidation of ownership (Art. 1607,
Civil Code)
(1) REFORMATION OF AN INSTRUMENT
Q: What is meant by reformation of instrument?
A: It is not an action brought to reform a contract
but to reform the instrument evidencing the
contract. It presupposes that there is nothing wrong
with the contract itself because there is a meeting
of minds between the parties. The contract is to be
reformed because despite the meeting of minds of
the parties as to the object and cause of the
contract, the instrument which is supposed to
embody the agreement of the parties does not
reflect their true agreement by reason of mistake,
inequitable conduct or accident. The action is
brought so the true intention of the parties may be
expressed in the instrument (Art. 1359, CC).
Q: When may an instrument be reformed?
A: The instrument may be reformed if it does not
express the true intention of the parties because of
lack of skill of the person drafting the instrument
(Art. 1363, CC). If the parties agree upon the
mortgage or pledge of property, but the instrument
states that the property is sold absolutely or with a
right of repurchase, reformation of the instrument
is proper (Art. 1365, CC).
Q: What is the remedy if the consent of a party to
a contract has been procured by fraud, inequitable
conduct, or accident?
A: Where the consent of a party to a contract has
been procured by fraud, inequitable conduct or
accident, and an instrument was executed by the
parties in accordance with the contract, what is
defective is the contract itself because of vitiation
of consent. The remedy is not to bring an action for
reformation of the instrument but to file an action
for annulment of the contract (Art. 1359, CC).
Note: Reformation of the instrument cannot be
brought to reform any of the following:
1. Simple donation inter vivos wherein no condition
is imposed;
2. Wills; or
3. When the agreement is void (Art. 1666, CC).
(2) CONSOLIDATION OF OWNERSHIP
Q: What is the purpose of an action brought to
consolidate ownership?
A: 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. The
lapse of the redemption period without the seller a
retro exercising his right of redemption,
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
135
UST GOLDEN NOTES 2011
consolidates ownership or title upon the person of
the vendee by operation of law. Art. 1607 requires
the filing of the petition to consolidate ownership
because the law precludes the registration of the
consolidated title without judicial order (Cruz vs.
Leis, 327 SCRA 570).
Note: The concept of consolidation of ownership
under Art. 1607, Civil Code, has its origin in the
substantive provisions of the law on sales. Under the
law, a contract of sale may be extinguished either by
legal redemption (Art. 1619) or conventional
redemption (Art. 1601). Legal redemption (retracto
legal) is a statutory mandated redemption of a
property previously sold. For instance, a co-owner of a
property may exercise the right of redemption in case
the shares of all the other co-owners or any of them
are sold to a third person (Art. 1620). The owners of
adjoining lands shall have the right of redemption
when a piece of rural land with a size of one hectare or
less is alienated (Art. 1621). Conventional redemption
(pacto de retro) sale is one that is not mandated by the
statute but one which takes place because of the
stipulation of the parties to the sale. The period of
redemption may be fixed by the parties in which case
the period cannot exceed ten (10) years from the date
of the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the
date of the contract (Art. 1606). When the redemption
is not made within the period agreed upon, in case the
subject matter of the sale is a real property, Art. 1607
provides that the consolidation of ownership in the
vendee shall not be recorded in the Registry of
Property without a judicial order, after the vendor has
been duly heard.
(3) QUIETING OF TITLE TO REAL PROPERTY
Q: What is an action for quieting title to real
property?
A: This action is brought to remove a cloud on title
to real property or any interest therein. The action
contemplates a situation where the instrument or a
record is apparently valid or effective but is in truth
and in fact invalid, ineffective, voidable or
unenforceable, and may be prejudicial to said title
to real property. This action is then brought to
remove a cloud on title to real property or any
interest therein. It may also be brought as a
preventive remedy to prevent a cloud from being
cast upon title to real property or any interest
therein (Art. 476, Civil Code).
Q: Is it required that the plaintiff be in the
possession of the property before an action is
brought?
136
A: The plaintiff need not be in possession of the real
property before he may bring the action as long as
he can show that he has a legal or an equitable title
to the property which is the subject matter of the
action (Art. 477, Civil Code).
6. REVIEW OF JUDGMENT AND FINAL ORDERS OR
RESOLUTIONS OF THE COMELEC AND COA
Q: What is the constitutional basis for the
application of Rule 65 under Rule 64?
A: Sec. 7, Art. IX-A of the Co stitutio eads, u less
otherwise provided by the 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 op the eof. The p o isio
as i te p eted
by the Supreme Court to refer to certiorari under
Rule 65 and not appeal by certiorari under Rule 45
(Aratuc vs. COMELEC, 88 SCRA 251; Dario vs. Mison,
176 SCRA 84). To implement the above
constitutional provision, the SC promulgated Rule
64.
Q: What is the mode of review for judgments and
final orders of the COMELEC and COA?
A: The petition may be brought by the aggrieved
party to the Supreme Court on Certiorari under
Rule 65, except otherwise provided.
Note: Rule 65 applies to the mode of review under
Rule 64.Said mode of review is based on Article IX-A of
the 1987 Constitution providing that the proper mode
of review is certiorari under Rule 65 to be filed before
the Supreme Court.Under R.A. 7902 the Court of
Appeals has jurisdiction over all adjudications of the
Civil Service Commission.
Note: The order to comment under Sec. 6, Rule 64 in
case the Supreme Court finds the petition sufficient in
form and substance is equivalent to summons in
ordinary civil action.
Q: What is the period for filing certiorari as
referred to in Rule 64?
A: The petition for certiorari referred to in Rule 64
shall be filed within 30 days from notice of the
judgment, final order or resolution of the COMELEC
and the COA sought to be reviewed (Sec. 3, Rule
64).
Note: While Rule 64 makes reference to the certiorari
under Rule 65, the period for the filing of the petition
for certiorari assailing the judgment of the COMELEC
and COA is shorter than that provided under Rule 65
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: When may the court issue an order to
comment?
A: If the SC finds the petition sufficient,
respondents will be ordered to file a verified
comment within 10days from notice of such order.
(Sec. 6, Rule 64)
Q: What are basic requirements for the petition?
A: The following basic requirements must be
complied with:
1. The petition shall be verified and filed in 18
copies;
2. Accompanied by clearly legible duplicate original
or certified true copy of the judgment, final order or
resolution subject thereof, together with certified
true copies of documents relevant and pertinent to
the petition;
3. The aggrieved party is named as the petitioner
and shall join as respondent the commission
concerned and all the persons interested in
sustaining the judgment, final order or resolution.
4. The petition shall state the facts with certainty,
present clearly the issues involved, set forth the
grounds and brief arguments relied upon for
review;
5. Petition shall state the specific material dates
showing that it was filed within the period fixed by
the Rules.
6. The petition shall be accompanied by proof of
service of a copy thereof on the commission
involved and on the adverse party, and of the
timely payment of docket and other lawful fees
(Sec. 5, Rule 64)
7. Certification against non forum shopping
8. Petition shall pray for a judgment annulling or
modifying the questioned judgment, final order or
resolution.
Note: The failure of the petitioner to comply with any
of the foregoing requirements shall be sufficient
ground for the dismissal of the petition (Sec. 5, Rule
64).
a. APPLICATION OF RULE 65 UNDER RULE 64
aggrieved party may file
the petition within the
remaining period, but
which shall not be less
than 5 days.
b. DISTINCTION IN THE APPLICATION OF RULE 65
TO JUDGMENTS OF THE COMELEC AND COA AND
THE APPLICATION OF RULE 65 TO OTHER
TRIBUNALS, PERSONS AND OFFICERS
Q: Distinguish the mode of review of judgment,
final orders or resolutions of COMELEC and COA
from other tribunals, persons and officers.
A:
Rule 64 for COMELEC
and COA
Petition is based on
questions of law
It is a mode of appeal
but the petition used
is Rule 65
Involves review of
judgments, final
orders or resolutions
of COMELEC and COA
Filed within 30 days
from notice of
judgment, final order
or resolution sought
to be reviewed
Does not stay the
execution unless SC
shall direct otherwise
upon such terms as it
may deem just
The COMELEC and
COA shall be public
respondents who are
impleaded in the
action
Q: Distinguish Rule 64 from Rule 65.
A:
Rule 64
Directed only to the
judgments, final orders or
resolutions
of
the
COMELEC and COA;
Must be filed within 30
days from notice of
judgment or resolution
If MR is denied, the
Rule 65
Directed to any tribunal,
board
or
officers
exercising judicial or
quasi-judicial functions;
Must be filed within 60
days from notice of
judgment or resolution
If MR is denied, the
aggrieved party will have
another 60 days within
which to file the petition
counted from the notice
of denial.
The filing of MNT or
MR, if allowed under
the procedural rules of
the Commission, shall
interrupt period fixed
The court is in the
exercise of its
appellate jurisdiction
and power of review
Review of judgment,
final orders or
resolutions of other
tribunals, persons and
officer
Petition is based on
questions of law
It is a mode of appeal
Involves the review of
the judgment final
orders or resolutions of
the CA, Sandiganbayan,
CTA, RTC or other courts
Filed within 15 days
from notice of
judgment, final order or
resolution appealed
from
Stays the judgment or
order appealed from
The appellant and the
appellee are the original
parties to the action,
and the lower court or
quasi-judicial agency is
not impleaded
Motion for
reconsideration is not
required
The court is in the
exercise of its appellate
jurisdiction and power
of review
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
137
UST GOLDEN NOTES 2011
Petition for certiorari
is to be filed before
the SC
Petition for certiorari is
to be filed only with the
Court of Appeals
Q: What are the requisites for a review under Rule
64?
b.
4.
5.
6.
Certified true copy of material
records of the case
Statement of material dates
Sworn certification against forum
shopping
Proof of service
A:
1.
Filing of verified petition within 30days
from notice of the judgment, final orders
or resolutions (Sec. 3, Rule 64)
Q: What are the grounds for the outright dismissal
of the petition?
Note: Interlocutory orders must be assailed
under Rule 65, not Rule 64
Payment of docket and other lawful fees
(Sec. 4, Rule 64)
A: (Sec. 6, Rule 64)
1. Petition is not sufficient in form and
substance (Sec. 5, Rule 64)
2. Petition was filed for purpose of delay
3. Issue is unsubstantial
Note: The filing of the petition for certiorari does not
stay the execution of the assailed judgment, final order
or resolution of the Commission unless SC directs
otherwise by the issuance of a temporary restraining
order or preliminary injunction. (Sec. 8, Rule 64)
Q: Are findings of fact reviewable under Rule 64
using Rule 65?
2.
Q: What are the contents of the petition?
A: (Sec. 5, Rule 64)
1. Verified petition filed in 18copies joining
as
respondents
the
Commission
concerned and person/s interested in
sustaining the judgment, final order or
resolution a quo
2. Statement of facts, issues, grounds for
review, arguments and relief prayed for
3. Attachment of:
a. Duplicate original or certified true
copy of assailed judgment, final
order or resolution
A: The petition under Rule 64 using Rule 65, cannot
question the findings of fact of the commission
involved where such findings are supported by
substantial evidence. Such findings when so
supported by the requisite quantum of evidence
are final and non- reviewable (Sec 5, Rule 64).
Q: What is the effect of filing of a motion for new
trial or reconsideration if allowed under the
procedural rules of the commission concerned?
A: It will interrupt the period for filing the petition
and if motion is denied, the petition may be filed
within the remaining period which shall not be less
than 5days. (Sec. 3, Rule 64)
7. CERTIORARI, PROHIBITION AND MANDAMUS
GENERAL MATTERS
a. DEFINITIONS AND DICTINCTIONS
CERTIORARI
PROHIBITION
MANDAMUS
Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ
annulling
or
modifying
the commanding
a
tribunal, commanding a tribunal, corporation, board
proceedings of a tribunal, board or corporation, board or person, or person, to do an act required to be done:
officer exercising judicial or quasi- whether exercising judicial, quasi- (a)
When he unlawfully neglects the
judicial functions when such tribunal, judicial or ministerial functions, to performance of an act which the law
board or officer has acted without or desist from further proceedings specifically enjoins as a duty, and there is no
in excess of its or his jurisdiction, or when said proceedings are without other plain, speedy and adequate remedy in
with grave abuse of discretion or in excess of its jurisdiction, or the ordinary course of law; or
amounting to lack or excess of with abuse of its discretion, there (b) When one unlawfully excludes another
jurisdiction, there being no appeal or being no appeal or any other plain, from the use and enjoyment of a right or
any other plain, speedy and adequate speedy and adequate remedy in the office to which the other is entitled (Sec. 3,
remedy in the ordinary course of law ordinary course of law (Sec. 2, Rule Rule 65).
(Sec. 1, Rule 65).
65).
Directed against a person exercising to Directed against a person exercising Directed against a person exercising
judicial or quasi-judicial functions
judicial or quasi-judicial functions, ministerial duties
or ministerial functions
138
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
To correct an act performed by
respondent
Purpose is to annul or modify the
proceedings
Person or entity must have acted
without or in excess of jurisdiction, or
with grave abuse of discretion
To prevent the commission of an
To compel performance of an act
act
Purpose is to stop the proceedings Purpose is to compel performance of the act
required and to collect damages
Person or entity must have acted Person must have neglected a ministerial
without or in excess of jurisdiction, duty or excluded another from a right or
office
or with grave abuse of discretion
Extends to discretionary acts
Extends to discretionary and
ministerial acts
Only against a respondent exercising
judicial or quasi-judicial functions
Only for ministerial acts
Against respondents who exercise judicial and/or non-judicial functions
Q: When does the court acquire jurisdiction over
the person of the respondent in original actions
for certiorari, prohibition and mandamus?
2.
A:
1.
2.
If the action is filed with the RTC – Follow
the rules on ordinary civil actions.
Jurisdiction is acquired by the service of
summons to the respondent or by his
voluntary appearance in court.
If the action is filed with the CA or the SC –
The court acquires jurisdiction over the
respondents with the service on them of
its orders indicating its initial action on
the petition or by voluntary submission to
such jurisdiction.
3.
4.
CERTIORARI
Q: What is certiorari?
A: A writ issued by a superior court to an inferior
court, board or officer exercising judicial or quasijudicial functions whereby the record of a particular
case is ordered to be elevated for review and
correction in matters of law.
Note: An original action for certiorari, prohibition, and
mandamus is an independent action. As such, it does
not interrupt the course of the principal.
Note: A petition for certiorari must be based on
jurisdictional grounds because as long as the
respondent acted with jurisdiction, any error
committed by him or it in the exercise thereof will
amount to nothing more than an error of judgment
which may be reviewed or corrected by appeal
(Microsoft Corp. vs. Best Deal Computer Center Corp.,
GR 148029, Sept. 24, 2002; Estrera vs. CA, GR 154235,
Aug. 16, 2006).
Q: Define the following.
A:
1.
Judicial function – is where the tribunal or
person has the power to determine what
5.
the law is, what the rights of the parties
are, and undertakes to determine these
questions and adjudicate upon the rights
of the parties.
Without jurisdiction – is where the
respondent does not have the legal
power to determine the case.
Excess of jurisdiction – is where the
respondent, being clothed with the power
to determine the case, oversteps his
authority as determined by law.
Grave abuse of discretion – is where the
respondent acts in a capricious,
whimsical, arbitrary or despotic manner
in the exercise of his judgment as to be
said to be equivalent to lack of
jurisdiction. The abuse of discretion must
be so patent and gross as to amount to an
evasion of positive duty or to a virtual
refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as
where the power is exercised in an
arbitrary and despotic manner by reason
of passion or personal hostility.
Plain, speedy and adequate remedy – is
one which promptly relieves the
petitioner from the injurious effects of
the judgment and the acts of the lower
court or agency.
Q: Which court has jurisdiction over petitions for
certiorari?
A: The courts have concurrent jurisdiction,
however, petitions are subject to the rule on
hierarchy of courts.
Q: Does the filing of a petition for certiorari
interrupt the running of the reglamentary period?
A: No. The rule is the same for prohibition and
mandamus since the remedies under Rule 65 are
independent actions.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
139
UST GOLDEN NOTES 2011
Rule 45
GR: Findings of fact of CA
are conclusive
principal case. It is necessary therefore, to avail of
either a temporary restraining order or a writ of
preliminary injunction to be issued by a higher
court against the public respondent so the latter
may, during the pendency of the petition, be
enjoined from further proceeding with the case (sec
7, Rule 65).
Involves question of law
Q: Are the remedies of appeal and certiorari
exclusive?
Q: Distinguish certiorari under Rule 65 and
certiorari under Rule 45.
A:
Rule 65
Findings of fact of Court
of Appeals are not
conclusive or binding
upon SC
Involves question of
jurisdiction
Mode of appeal
Directed
against
an
interlocutory order of a
court or where there is
no appeal or any other
plain, speedy or adequate
remedy
Filed not later than 60
days from notice of
judgment,
order
or
resolution appealed from
Unless
a
writ
of
preliminary injunction or
temporary
restraining
order is issued, it does
not stay the challenged
proceeding
The judge, court, quasijudicial agency, tribunal,
corporation,
board,
officer or person shall be
public respondents who
are impleaded in the
action
Motion for
reconsideration or for
new trial is required.
If
a
motion
for
reconsideration or new
trial is filed, another 60
days shall be given to the
petitioner (A.M. No. 0203-SC)
Court exercises original
jurisdiction
Filed with the RTC, CA,
Sandiganbayan
or
COMELEC
Mode of review
Involves the review of the
judgment final orders or
resolutions of the CA,
Sandiganbayan, CTA, RTC
or other courts
Filed within 15 days from
notice of judgment, final
order
or
resolution
appealed from
Stays the judgment or
order appealed from
The appellant and the
appellee are the original
parties to the action, and
the lower court or quasijudicial agency is not
impleaded
Motion
reconsideration
required
is
for
not
GR: Where the proper remedy is appeal, the
action for certiorari will not be entertained.
Certiorari is not a remedy for errors of
judgment. Errors of judgment are correctible by
appeal; errors of jurisdiction are reviewable by
certiorari.
XPN: A petition for certiorari may be allowed
despite the availability of the remedy of appeal
when:
1. Appeal does not constitute a speedy and
adequate remedy;
2. Orders were issued either in excess of or
without jurisdiction;
3. For certain special considerations as for
public policy or public welfare;
4. Order is a patent nullity;
5. Decision in the certiorari case will avoid
future litigation; or
6. In criminal actions, the court rejects
rebuttal evidence for the prosecution as,
in case of acquittal, there could be no
remedy (Regalado, Remedial Law
Compendium, Vol. I, p. 783, 2007 ed.).
Note: When the remedy by appeal had already been
lost due to petitio e s o
eglect or error in the
choice of remedies, certiorari cannot lie. The two
remedies are mutually exclusive (Meralco v. CA, G.R.
No. 88396, July 4, 1990).
PROHIBITION
The court is in the
exercise of its appellate
jurisdiction and power of
review.
Filed with the SC
Q: Will the filing of a petition for certiorari
interrupt the course of the principal case? Or is an
injunctive relief necessary?
A: The filing of a petition for certiorari against the
lower court or tribunal or any other public
respondent does not interrupt the course of the
140
A:
Q: What is prohibition?
A: A remedy to prevent inferior courts,
corporations, boards or persons from usurping or
exercising a jurisdiction or power which they have
not been vested by law.
Note: It is commenced by a verified petition
accompanied by a certified true copy of the judgment,
order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum
shopping (Sec. 2, Rule 65).
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: Distinction between Prohibition and injunction
To perform a positive
legal duty and not to undo
what has been done
A:
INJUNCTION
Directed only to the
party litigants, without
in
any
manner
interfering with the
court.
PROHIBITION
Directed to court
commanding it to
from the exercise
jurisdiction to which
no legal claim.
itself,
cease
of a
it has
Q: What is the function of writ of prohibition?
A: It is a preventive remedy. Its function is to
restrain the doing of some act about to be done. It
is not intended to provide a remedy for acts already
accomplished. If the thing be already done, the writ
of prohibition cannot undo it (Agustin v. De la
Fuente, G.R. No. L-2345, Aug. 31, 1949).
MANDAMUS
Q: What is mandamus?
A: A writ issued in the name of the State, to an
inferior tribunal, corporation, board or person,
commanding the performance of an act which the
law enjoins as a duty resulting from an office, trust
or station.
Note: It is commenced by the filing of a verified
petition accompanied by certified true copy of the
judgment, order or resolution subject thereof, copies
of all pleadings and documents relevant and pertinent
thereto and a sworn certification of non-forum
shopping (Sec. 3, Rule 65).
Q: Distinguish mandamus from quo warranto.
A:
Mandamus
Available when one is
unlawfully excluded from
the use or enjoyment of
an office against a person
who is responsible for
excluding the petitioner
Quo Warranto
Available against the
holder of an office, who
is the person claiming the
office
as
against
petitioner,
not
necessarily the one who
excludes the petitioner
Q: Distinguish mandamus from injunction.
A:
Mandamus
Special civil action
Directed
against
a
tribunal,
corporation
board, or officer
Purpose is for tribunal,
corporation, board or
officer
to
perform
ministerial and legal duty
injunction
Ordinary civil action
Directed against a litigant
ministerial duty
To prevent an act to
maintain the status quo
between the parties
b. REQUISITES
CERTIORARI
That the petition
is directed
against a
tribunal, board
or officer
exercising
judicial or quasijudicial
functions;
PROHIBITION
MANDAMUS
The petition is
The plaintiff has a
directed against a clear legal right to
tribunal,
the act
corporation,
demanded;
board or person
exercising
judicial, quasijudicial, or
ministerial
functions;
The tribunal,
The tribunal,
It must be the
board or officer corporation,
duty of the
has acted
board or person defendant to
without, or in
must have acted perform the act,
excess of
without or in
which is
jurisdiction or
excess of
ministerial and
with abuse of
jurisdiction or
not discretionary,
discretion
with grave abuse because the same
amounting to
of discretion
is mandated by
lack or excess or amounting to lack law;
jurisdiction
of jurisdiction;
There is no
There is no
The defendant
appeal or any
appeal or any
unlawfully
plain, speedy and plain, speedy and neglects the
adequate
adequate remedy performance of
remedy in the
in the ordinary
the duty enjoined
ordinary course course of law.
by law;
of law.
Accompanied by Accompanied by There is no appeal
a certified true a certified true
or any plain,
copy of the
copy of the
speedy and
judgment or
judgment or
adequate remedy
order subject of order subject of in the ordinary
the petition,
the petition,
course of law.
copies of all
copies of all
pleadings and
pleadings and
documents
documents
relevant and
relevant and
pertinent
pertinent thereto,
thereto, and
and sworn
sworn
certification of
certification of non-forum
non-forum
shopping under
shopping under Rule 46.
Rule 46.
Q: What are the requisites of a valid certiorari?
A:
For the defendant either
to refrain from an act or
to
perform
not
necessarily a legal and
1.
2.
There must be a controversy;
Respondent is exercising judicial or quasijudicial functions;
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
141
UST GOLDEN NOTES 2011
3.
4.
Respondents acted without or in excess of
its jurisdiction or with grave abuse of
discretion amounting to lack of
jurisdiction; and
There must be no appeal or other plain,
speedy and adequate remedy. (Sec. 1,
Rule 65)
A:
1.
2.
3.
4.
Summary procedure
Writ of Amparo
Writ of Habeas Data
Small claims cases (Riano, Civil Procedure:
A Restatement for the Bar, p. 629, 2009
ed.)
Note: Certiorari is not the remedy for a loss appeal.
Q: When is prohibition issued?
Q: What are the requisites of a valid prohibition?
A:
A: Sec. 2, Rule 65
1. There must be a controversy
2. Respondent is exercising judicial, quasijudicial functions or ministerial functions
3. Respondents acted without or in excess of
its jurisdiction or with grave abuse of
discretion amounting to lack of
jurisdiction
4. There must be no appeal or other plain,
speedy and adequate remedy
Q: What are the requisites of a valid mandamus?
A: Sec. 3, Rule 65
1. There must be a clear legal right or duty
2. The act to be performed must be within
the powers of the respondent to perform;
3. The respondent must be exercising a
ministerial duty
4. The duty or act to be performed must be
existing (a correlative right will be denied
if not performed by the respondent)
5. There is no appeal or other plain, speedy
and adequate remedy in the ordinary
course of law
GR: Prohibition does not ordinarily lie to
restrain an act which is already fait accompli.
XPN: It will lie to 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, July 11, 1986)
Note: Prohibition and not mandamus, is the remedy
where a motion to dismiss is wrongfully denied
(Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30,
1949)
Q: What are the grounds for mandamus?
A:
1.
2.
c. WHEN PETITION FOR CERTIORARI, PROHIBITION
AND MANDAMUS IS PROPER
Q: What are the grounds for the filing of a petition
for certiorari?
When any tribunal, corporation, board,
officer or person unlawfully neglects the
performance of an act which the law
specifically enjoins as a duty resulting
from an office, trust or station; or
When any tribunal, corporation, board,
officer or person unlawfully excludes
another from the use and enjoyment of a
right or office to which the other is
entitled (Sec. 3)
Q: Will mandamus issue despite the availability of
administrative remedies?
A:
A: That a tribunal, board or officer exercising
judicial or quasi-judicial functions acted:
1. Without or in excess of jurisdiction
2. In grave abuse of discretion amounting to
lack or excess of jurisdiction
Note: It is commenced by the filing of a verified
petition accompanied by certified true copy of the
judgment, order or resolution subject thereof, copies
of all pleadings and documents relevant and pertinent
thereto and a sworn certification of non-forum
shopping. (Sec. 1, Rule 65).
Q: When is certiorari under Rule 65 unavailable?
142
GR: Mandamus will not issue when
administrative remedies are still available.
XPN:
1. If the party is in estoppel (Vda. de Tan v.
Veterans Backpay Commission, G.R. No. L12944, Mar. 30, 1959); or
2. Only questions of law are raised.
(Madrigal v. Lecaroz, G.R. No. L-46218,
Oct. 23, 1990)
Q: May mandamus be used to compel a
discretionary duty?
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
A: Mandamus is only applicable to a ministerial
duty. However, mandamus can be used to the
extent of requiring the performance of a
discretionary duty to act but not to require
performance of such duty in a particular manner.
Q: May the CA award damages in mandamus
proceedings?
A: Yes. The CA in resolving a petition for mandamus
is authorized to award civil damages in the same
petition (Vital-Gozon v. CA, G.R. No. 101428, Aug. 3
1992)
d. INJUNCTIVE RELIEF
Q: When is injunctive relief proper?
A: 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 order
or a writ of preliminary injunction has been issued
against the public respondent from further
proceeding in the case (Sec. 7, Rule 65).
The public respondent shall proceed with the
principal case within ten (10) days from the filing of
a petition for certiorari with a higher court or
tribunal, absent a Temporary Restraining Order
(TRO) or a Writ of 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 (AM 07-7-12-SC, Dec. 12,
2007).
e. CERTIORARI DISTINGUISHED FROM APPEAL BY
CERTIORARI; PROHIBITION AND MANDAMUS
DISTINGUISHED FROM INJUNCTION; WHEN AND
WHERE TO FILE PETITION
Q: Distinguish certiorari from appeal by certiorari.
Certiorari as a Mode of
Appeal (Rule 45)
Called petition for review
on certiorari, is a mode of
appeal, which is but a
continuation of the
appellate process over the
original case;
Seeks to review final
judgments or final orders;
Certiorari as a Special Civil
Action (Rule 65)
A special civil action that is
an original action and not a
mode of appeal, and not a
part of the appellate
process but an
independent action.
May be directed against an
interlocutory order of the
court or where not appeal
or plain or speedy remedy
available in the ordinary
course of law
Raises only questions of
law;
Raises questions of
jurisdiction because a
tribunal, board or officer
exercising judicial or quasijudicial 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 Filed not later than 60 days
notice of judgment or final from notice of judgment,
order appealed from, or of order or resolution sought
the denial of petitio e s to be assailed and in case a
motion for reconsideration motion for reconsideration
or new trial;
or new trial is timely filed,
whether such motion is
required or not, the 60 day
period is counted from
notice of denial of said
motion;
Extension of 30 days may Extension no longer
be granted for justifiable allowed;
reasons
Does not require a prior
Motion for
motion for
Reconsideration is a
reconsideration;
condition precedent,
subject to exceptions
Stays the judgment
Does not stay the
appealed from;
judgment or order subject
of the petition unless
enjoined or restrained;
Parties are the original
The tribunal, board, officer
parties with the appealing exercising judicial or quasiparty as the petitioner and judicial functions is
the adverse party as the
impleaded as respondent
respondent without
impleading the lower court
or its judge;
Filed with only the
May be filed with the
Supreme Court
Supreme Court, Court of
Appeals, Sandiganbayan,
or Regional Trial Court
SC may deny the decision
motupropio 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.
Note: The remedies of appeal and certiorari are
mutually exclusive and not alternative or successive.
The antithetic character of appeal and certiorari has
been generally recognized and observed save only on
those rare instances when appeal is satisfactorily
shown to be an inadequate remedy. Thus, a petitioner
must show valid reasons why the issues raised in his
petition for certiorari could not have been raised on
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
143
UST GOLDEN NOTES 2011
appeal (Banco Filipino Savings and Mortgage Bank vs.
CA, 334 SCRA 305).
Q: Distinguish prohibition and mandamus from injunction.
A:
Prohibition
Mandamus
Injunction
Prohibition is an extraordinary writ Mandamus is an extraordinary writ
Main action for injunction seeks to
commanding a tribunal, corporation, commanding a tribunal, corporation,
enjoin the defendant from the
board or person, whether exercising board or person, to do an act required to commission or continuance of a
judicial, quasi-judicial or ministerial be done:
specific act, or to compel a particular
functions, to desist from further (a)
When he unlawfully neglects the act in violation of the rights of the
proceedings when said proceedings are performance of an act which the law
applicant. Preliminary injunction is a
without or in excess of its jurisdiction, or specifically enjoins as a duty, and there is provisional remedy to preserve the
with abuse of its discretion, there being no other plain, speedy and adequate
status quo and prevent future wrongs
no appeal or any other plain, speedy and remedy in the ordinary course of law; or in order to preserve and protect
adequate remedy in the ordinary course (b)
When one unlawfully excludes certain interests or rights during the
of law (Sec. 2, Rule 65).
another from the use and enjoyment of pendency of an action.
a right or office to which the other is
entitled (Sec. 3, Rule 65).
Special civil action
Special civil action
Ordinary civil action
To prevent an encroachment, excess,
To compel the performance of a
For the defendant either to refrain
usurpation or assumption of jurisdiction; ministerial and legal duty;
from an act or to perform not
necessarily a legal and ministerial
duty;
May be directed against entities
May be directed against judicial and non- Directed against a party
exercising judicial or quasi-judicial, or
judicial entities
ministerial functions
Extends to discretionary functions
Extends only to ministerial functions
Does not necessarily extend to
ministerial, discretionary or legal
functions;
Always the main action
Always the main action
May be the main action or just a
provisional remedy
May be brought in the Supreme Court, May be brought in the Supreme Court, May be brought in the Regional Trial
Court of Appeals, Sandiganbayan, or in Court of Appeals, Sandiganbayan, or in Court which has jurisdiction over the
the Regional Trial Court which has
the Regional Trial Court which has
territorial area where respondent
jurisdiction over the territorial area
jurisdiction over the territorial area
resides.
where respondent resides.
where respondent resides.
f. EXCEPTIONS TO FILING OF MOTION FOR
RECONSIDERATION BEFORE FILING PETITION
Q: Is it an absolute rule that before recourse to
certiorari is taken a motion for reconsideration
must be filed?
3.
A:
GR: Petition for certiorari will not be
entertained unless the public respondent has
been given first the opportunity through a
motion for reconsideration to correct the error
being imputed to him.
XPNs: A prior motion for reconsideration is not
necessary to entertain a petition for certiorari
where:
1. Order is a patent nullity, as where the
court a quo has no jurisdiction;
2. Questions raised in the certiorari
proceedings have been duly raised and
144
4.
5.
6.
7.
8.
passed upon by the lower court, or are
the same as those raised and passed upon
in the lower court;
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;
Under the circumstances, a motion for
reconsideration would be useless;
Petitioner was deprived of due process
and there is extreme urgency for relief;
In a criminal case, relief from an order of
arrest is urgent and the granting of such
relief by the trial court is improbable;
Proceedings in the lower court are a
nullity for lack of due process;
Proceedings were ex parte or in which the
petitioner had no opportunity to object;
and
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
9.
Issue raised is one purely of law or where
public interest is involved.
without merit, prosecuted manifestly for delay, or
raises questions which are too unsubstantial to
require consideration?
g. RELIEFS PETITIONER IS ENTITLED TO
Q: What are the reliefs a petitioner is entitled to
with this action?
A:
The primary relief will be the annulment or
modification of the judgment, order, or resolution
or proceeding subject of the petition. It may also
include such other Incidental reliefs as law and
justice may require (sec 1, Rule 65) The court may
also award damages in its judgment and the
execution of the award for damages or costs shall
follow the procedure in sec 1 of rule 39 (sec 9, rule
65).
h. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION
CASES
Q: What is the rule on acts or omissions of the
MTC or RTC regarding election cases?
A: In election cases involving an act or an omission
of a municipal or a regional trial court, the petition
shall be filed exclusively with the Commission on
Elections, in aid of its appellate jurisdiction. (Sec.4,
Rule 65, As amended by AM No. 07-7-12-SC, Dec.
12, 2007)
i. WHERE TO FILE PETITION
Q: When and where to file petition?
A:
1. Supreme Court- Subject to the doctrine of
hierarchy of courts and only when compelling
reasons exist for not filing the same with the lower
courts.
2. Court of Appeals only- If the petition involves an
act or an omission of a quasi-judicial agency, unless
otherwise provided by law or rules.
3. Court of Appeals and Sandiganbayan- Whether
or not in aid of appellate jurisdiction.
4. Regional Trial Court- If the petition relates to an
act or an omission of an MTC, corporation, board,
officer or person.
5. COMELEC- In election cases involving an act or an
omission of an MTC or RTC
As amended by AM No. 07-7-12-SC, Dec. 12, 2007.
j. EFFECTS OF FILING OF AN UNMERITORIOUS
PETITION
Q: What is the effect of a petition for certiorari,
prohibition or mandamus which is patently
A: The court may dismiss the petition. 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.
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, as
amended by A.M. No. 07-7-12-SC).
8. QUO WARRANTO
Q: What is quo warranto?
A: A proceeding or writ issued by the court to
determine the right to use an office, position or
franchise and to oust the person holding or
exercising such office, position or franchise if his
right is unfounded or if a person performed acts
considered as grounds for forfeiture of said exercise
of position, office or franchise.
Note: It is commenced by a verified petition brought in
the name of the Republic of the Philippines or in the
name of the person claiming to be entitled to a public
office or position usurped or unlawfully held or
exercised by another. (Sec. 1)
Q: What are the classifications of quo warranto
proceedings?
A:
1.
Mandatory – brought by the Solicitor
General or Public prosecutor when:
a. directed by the President;
b. upon complaint or when he has
reason to believe that the cases for
quo warranto can be established by
proof (Sec. 2)
c. at the request and upon the relation
if another person (ex relatione), but
leave of court must first be obtained.
(Sec. 3)
2.
Discretionary – brought by the Solicitor
General or a public prosecutor at the
request and upon the relation of another
person, provided there must be:
a. leave of court
b. at the request and upon the relation
of another person
c. indemnity bond (Sec. 3)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
145
UST GOLDEN NOTES 2011
Q: Distinguish quo warranto in elective office from
an appointive office.
A:
Elective Office
Issue: eligibility of the
respondent
Occupant declared
ineligible/disloyal will be
unseated but petitioner
will not be declared the
rightful occupant of the
office.
Appointive Office
Issue: validity of the
appointment
Court will oust the
person illegally
appointed and will order
the seating of the person
who was legally
appointed and entitled to
the office.
a. DISTINCTION FROM QUO WARRANTO UNDER
OMNIBUS ELECTION CODE
protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25,
1929).
b. WHEN GOVERNMENT COMMENCE AN ACTION
AGAINST INDIVIDUALS
c. WHEN INDIVIDUAL MAY COMMENCE AN
ACTION
Q: Who commences the action?
A:
1.
2.
Q: Distinguish quo warranto under Rule 66 from
quo warranto under Omnibus Election Code.
A:
Quo Warranto Under Rule
66
Prerogative writ by which
the government can call
upon any person to show
by what title he holds a
public office or exercises a
public franchise.
Grounds: 1. usurpation
2. forfeiture
3. illegal association
Presupposes that the
respondent is already
actually holding office and
action must be
commenced within 1 year
from cause of ouster or
from the time the right of
petitioner to hold office
arose.
The petitioner must be the
government or the person
entitled to the office and
who would assume the
same if his action
succeeds.
Person adjudged entitled
to the office may bring a
separate action against the
respondent to recover
damages.
Quo Warranto In
Electoral Proceedings
To contest the right of
an elected public officer
to hold public office.
Grounds:
ineligibility or
disqualification to hold
the office
Petition must be filed
within 10 days from the
proclamation of the
candidate.
May be filed by any
voter even if he is not
entitled to the office.
Actual or compensatory
damages are recoverable
in quo warranto
proceedings under the
Omnibus Election Code.
Note: If the dispute is as to the counting of votes or on
matters connected with the conduct of the election,
quo warranto is not the proper remedy but an election
146
3.
The solicitor general or public prosecutor,
when directed by the President of the
Philippines, or when upon complaint or
otherwise he has good reason to believe
that any case specified in the proceding
section can be established by proof.
(mandatory quo warranto)
The Solicitor General or a public
prosecutor may, with the permission of
court, bring an action at the request and
upo n the relation of another person.
(discretionary quo warranto)
A person claiming to be entitled to a
public office or position or unlawfully held
or exercised by anoher may also bring
action, in his own name.
Q: Against whom a quo warranto may be filed?
A: The action must be filed against:
1. A person who usurps, intrudes into, or
unlawfully holds or exercises a public
office, position or franchise;
2. A public officer who does or suffers an act
which, by the provision of law, constitutes
a ground for the forfeiture of his office;
and
3. An association which acts as a corporation
within the Philippines without being
legally incorporated or without lawful
authority so to act (Sec. 1, Rule 66).
Note: Actions of quo warranto against corporations
now fall under the jurisdiction of the RTC (Sec. 5.2,
Securities Regulations Code).
Q: A group of businessmen formed an association
in Cebu City calling itself Cars Co. to distribute/sell
cars in said city. It did not incorporate itself under
the law nor did it have any government permit or
license to conduct its business as such. The
Solicitor General filed before the RTC in Manila a
verified petition for quo warranto questioning and
seeking to stop the operations of Cars Co. The
latter filed a motion to dismiss the petition on the
ground of improper venue claiming that its main
office and operations are in Cebu City and not in
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Manila. Is the contention of Cars Co. correct?
Why?
Q: What are
expropriation?
A: No. As expressly provided in the Rules, when the
Solicitor General commences the action for quo
warranto, it may be brought in a Regional Trial
Court in the City of Manila, as in the case, in the CA
or in the SC (Sec. 7, Rule 66). (2001 Bar Question)
A:
1.
2.
3.
the
requisites
of
a
valid
Due process of law
Payment of just compensation
Taking must be for public use
Q: What is the power of eminent domain?
d. JUDGMENT IN QUO WARRANTO ACTION
Q: What is the effect of a judgment in Quo
Warranto case?
A; When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a
public office, position or franchise, judgment shall
be rendered that such respondent be ousted and
altogether excluded therefrom, and that the
petitioner or relator, as the case may be, recover
his costs. Such further judgment may be rendered
determining the respective rights in and to the
public office, position or franchise of the parties to
the action as justice requires (Sec. 9, Rule 66).
e. RIGHTS OF A PERSON ADJUDGED ENTITLED TO
PUBLIC OFFICE
Q: What are the rights of persons adjudged to be
entitled to the office?
A: if judgment be rendered in favor of the person
averred in the complaint to be entitled to the public
office, he may, after taking the oath of office and
executing any official bond required by law:
1. take upon himself the execution of the
office;
2. may immediately thereafter demand all
the ooks a d pape s i the espo de t s
custody or control appertaining to the
office to which the judgment relates; and
3. may bring an action against the
respondent to recover damages sustained
by such persons by reason of usurpation.
Note: when there is a judgment in a quo warranto
action finding usurpation to be existent, respondent
must be ousted and altogether excluded therefrom,
and that the petitioner or relator, as the case may be,
recover his cost. Such further judgment may be
rendered determining the respective rights in the
public office, position, or franchise of all the parties to
the action, as justice requires.
9. EXPROPRIATION
Q: What is expropriation?
A: The procedure for enforcing the right of eminent
domain.
A: It is the right of the State to acquire private
property for public use upon the payment of just
compensation.
Q: When is expropriation proper?
A: It is proper only when the owner refuses to sell
or, if the latter agrees, agreement as to the price
cannot be reached.
a. MATTERS TO BE ALLEGED IN COMPLAINT FOR
EXPROPRIATION
Q: Matters to be allege in a complaint for
expropriation.
A: right and purpose of expropriation, describing
the property sought to be expropriated, and joining
as defendants all persons owning or claiming to
own any part thereof or interest therein (Sec. 1).
b. TWO STAGES IN EVERY ACTION FOR
EXPROPRIATION
Q: What are the two (2) stages in expropriation
proceedings?
A:
1.
2.
Determination of the authority of the
plaintiff to exercise the power of eminent
domain and the propriety of the exercise
in the context of the facts involved.
Determination of just compensation.
Q: City of Iloilo (petitioner) represented by Mayor
Treñas filed a complaint for eminent domain
against Javellana seeking to expropriate two
parcels of land. Mayor Treñas filed a motion for
issuance of writ of possession alleging that it had
deposited 10% of the amount of compensation of
which the court issued. A writ of possession was
subsequently issued, and petitioner was able to
take physical possession of the properties. After
which, the expropriation proceedings remained
dormant. 16 years later, Javellana filed an ex parte
motion/manifestation, where he alleged that
when he sought to withdraw the money, he
discovered that no deposit was made. Thus,
Javellana filed a complaint for recovery of
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
147
UST GOLDEN NOTES 2011
possession, fixing and recovery of rental and
damages. The City of Iloilo argues that Javellana
could no longer bring an action for recovery since
the subject property was already taken for public
use. The trial court in its orders and amended
orders maintained that the assailed orders issued
by it were interlocutory in character and as such
are always subject to modification and revision by
the court anytime. Is the order of expropriation
final?
A: Expropriation proceedings have two stages. The
first phase ends with an order of dismissal, or a
determination that the property is to be acquired
for a public purpose. The second phase consists of
the determination of just compensation. Both
orders, being final, are appealable.
An order of condemnation or dismissal is final,
resolving the question of whether or not the
plaintiff has properly and legally exercised its power
of eminent domain. Once the first order becomes
final and no appeal thereto is taken, the authority
to expropriate and its public use can no longer be
questioned. Thus, it has become final, and the
petitio e s ight to e p op iate the p ope t fo a
public use is no longer subject to review. (City of
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
168967, Feb. 12, 2010).
Q: May Congress enact a law providing that a
5,000 square meter lot, a part of the UST
compound in Sampaloc, Manila, be expropriated
for the construction of a park in honor of former
City Mayor ArsenioLacson? As compensation to
UST, the City of Manila shall deliver its 5-hectare
lot in Sta. Rosa, Laguna originally intended as a
residential subdivision for the Manila City Hall
employees. Explain.
A: Yes, Congress may enact a law to expropriate
property but it cannot limit just compensation. The
determination of just compensation is a judicial
function and Congress may not supplant or prevent
the exercise of judicial discretion to determine just
compensation. Under Sec. 5, Rule 67 of the Rules of
Court, the ascertainment of just compensation
requires the evaluation of 3 commissioners. (2006
Bar Question)
c. WHEN PLAINTIFF CAN IMMEDIATELY ENTER
INTO POSSESSION OF THE REAL PROPERTY
Q: What is the new system of immediate payment
of initial compensation?
A: RA 8974 provides a modification of sec 2, Rule 67
where the Government is required to make
immediate and direct payment to the property
148
owner upon the filing of the complaint to be
entitled to a writ of possession. As a relevant
standard for initial compensation, the market value
for the property as stated in the tax declaration or
the current relevant zonal valuation of the Bureau
of internal Revenue (BIR), whichever is higher and
the value of the improvements and/or structures
using the replacement cost method.
Note: RA 8974 applies in instances when the national
government expropriates property for national
government infrastructure projects. Thus, if
expropriation is engaged by the national government
for purposes other that national infrastructure
projects, the assessed value standard and the deposit
mode prescribed in Rule 67 continues to apply.
The intent of RA 8974 to supersede the system of
deposit under Rule 67 with the scheme of immediate
payment in cases involving national government
infrastructure projects is indeed very clear (MCWD v. J.
King and Sons, GR 175983, April 16, 2009)
d. NEW SYSTEM OF IMMEDIATE PAYMENT OF
INITIAL JUST COMPENSATION
Q: What is the new system of immediate payment
of initial just compensation?
A: For the acquisition of right-of-way, site or
location for any national government infrastructure
project through expropriation, upon the filing of the
filing of the complaint, and after due notice to the
defendant, the implementing agency shall
immediately pay the owner of the property the
amount equivalent to the sum of (1) 100 percent of
the value of the property based on the current
relevant zonal valuation of the BIR; and (2) the
value of the improvements and/or structures as
determined under Sec. 7 of RA 8974 (Sec. 4, RA
8974).
e. DEFENSES AND OBJECTIONS
Q: What must be filed when defendant has an
objection?
A: If a defendant has any objection to the filing of
or the allegations in the complaint, or any objection
or defense to the taking of his property, he shall
serve his answer within the time stated in the
summons. The answer shall specifically designate or
identify the property in which he claims to have an
interest, state the nature and extent of the interest
claimed, and adduce all his objections and defenses
to the taking of his property. No counterclaim,
cross-claim or third-party complaint shall be alleged
or allowed in the answer or any subsequent
pleading.
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Note: if there are no objections, he must file and serve
a notice of appearance and manifestation to that
effect. And thereafter, shall be entitled to notice of all
proceedings.
Q: What is the duty of the court if the defendant
waives his defenses or objections?
A: If a defendant waives all defenses and objections
not so alleged, the court, in the interest of justice,
may permit amendments to the answer to be made
not later than ten (10) days from the filing thereof.
However, at the trial of the issue of just
compensation, whether or not a defendant has
previously appeared or answered, he may present
evidence as to the amount of the compensation to
be paid for his property, and he may share in the
distribution of the award (Sec. 3, Rule 67).
Q: How may appeal be taken from an order of
expropriation by the party aggrieved thereby?
A: It may be appealed by the defendant by record
on appeal. This is an instance when multiple
appeals are allowed because they have separate
and/or several judgments on different issues e.g.
issue on the right to expropriate or issue of just
compensation
Note: An appeal does not delay the right of the
plaintiff to enter upon the property of the defendant
and appropriate the same for public use.
overruled or when no party appears to object to or
to defend against the expropriation (Sec 4, Rule 67).
Note: after the rendition of the order of expropriation,
the plaintiff shall not be permitted to dismiss or
discontinue the proceeding except upon such terms as
the court deems just and equitable (Sec 4, Rule 67)
g. ASCERTAINMENT OF JUST COMPENSATION
Q: What is just compensation?
A: Just compensation is equivalent to the fair
market value of the property at the time of its
taking or filing of complaint whichever comes first.
It is the fair and full equivalent for the loss
sustained by the defendant.
Q: What is the formula for the determination of
just compensation?
A:
JC = FMV + CD – CB
If CB is more than CD then,
JC = FMV
JC – Just compensation
FMV – Fair market value
CD – Consequential damages
CB – Consequential benefits
Note:Sentimental value is not computed.
Q: What is the effect if the order of condemnation
was reversed?
A: The owner shall repossess the property with the
right to be indemnified for all damages sustained
due to the taking (Sec. 11, Rule 67)
Note: The landowner has the option of proving
damages either in the same expropriation case or in
a separate action instituted for that purpose, as the
judgment denying the right of expropriation is not
res judicata on the issue of damages arising from
such illegal expropriation (Republic v. Baylosis, G.R.
No. L-6191, Jan. 31, 1955).
f. ORDER OF EXPROPRIATION
Q: What is an order of expropriation?
A: An order of expropriation (or order of
condemnation) will be issued declaring that the
plaintiff has a lawful right to take the property for
the public use or purpose described in the
complaint upon the payment of just compensation
in the event the objections of the defendant are
Q: What is the reckoning point for determining
just compensation?
A:The value of just compensation shall be
determined as of the date of the taking of the
property or the filing of the complaint, whichever
came first. (Sec. 4)
GR: When the taking of the property sought to
be
expropriated
coincides
with
the
commencement
of
the
expropriation
proceedings, or takes place subsequent to the
filing of the complaint for eminent domain, the
just compensation should be determined as of
the date of the filing of the complaint. (City of
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
168967, Feb. 12, 2010).
Note: Typically, the time of taking is
contemporaneous with the time the petition is
filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10,
2009)
XPNs:
1. Grave injustice to the property owner
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
149
UST GOLDEN NOTES 2011
2.
3.
4.
150
Air
Transportation
Office
cannot
conveniently invoke the right of eminent
domain to take advantage of the
ridiculously low value of the property at
the time of taking that it arbitrarily
chooses to the prejudice of the land
owners.
(Heirs
of
Mateo
Pidacan&RomanaEigo
v.
Air
Transportation Office, G.R. No. 162779,
June 15, 2007)
The taking did not have color of legal
authority
To allow NAPOCOR to use the date it
constructed the tunnels as the date of
valuation would be grossly unfair. First, it
did not enter the land under warrant or
color of legal authority or with intent to
expropriate the same. It did not bother to
notify the owners and wrongly assumed it
had the right to dig those tunnels under
their
property. Secondly,
the
i p o e e ts
i t odu ed
NAPOCOR, the tunnels, in no way
contributed to an increase in the value of
the land. The trial court rightly computed
the valuation of the property as of 1992,
when the owners discovered the
construction of the huge underground
tunnels beneath their lands and
NAPOCOR confirmed the same and
started negotiations for their purchase
but no agreement could be reached.
(NAPOCOR v. Ibrahim, G.R. No. 168732,
June 29, 2007)
The taking of the property was not initially
for expropriation
There was no taking of the property in
1985 by Public Estates Authority (PEA) for
purposes of expropriation. As shown by
the records, PEA filed with the RTC its
petition for expropriation on Sept. 22,
2003.The trial court was correct in
ordering the Republic, through PEA, upon
the filing of its complaint for
expropriation,
to
pay
Tan
just
compensation on the basis of the BIR
zonal valuation of the subject property.
(Tan v. Republic, G.R. No. 170740, May
25, 2007)
The owner will be given undue increment
advantages because of the expropriation
The value of the property in question was
greatly enhanced between the time when
the extension of the street was laid out
and the date when the condemnation
proceedings were filed. The owners of the
land have no right to recover damages for
this unearned increment resulting from
the
construction
of
the
public
improvement for which the land was
taken. To permit them to do so would be
to allow them to recover more than the
value of the land at the time when it was
taken, which is the true measure of the
damages, or just compensation, and
would discourage the construction of
important
public
improvements. Pro i ial Go ’t of Rizal .
Caro de Araullo, G.R. No. L-36096, Aug.
16, 1933)
h. APPOINTMENT OF COMMISSIONERS;
COMMI““IONER’“ REPORT; COURT ACTION UPON
COMMI““IONER’“ REPORT
Q: May the court dispense with the assistance of
commissioners in the determination of just
compensation in expropriation proceedings?
A: No. The appointment of commissioners in
expropriation proceedings is indispensable. In such
cases, trial with the aid of commissioners is a
substantial right that may not be done away with
capriciously or for no reason at all (MERALCO v.
Pineda, G.R. No. L-59791, Feb. 13, 1992).
Note: Objections to the order of appointment must be
filed within 10 days from service of the order and shall
be resolved within 30 days after all the commissioners
received the copies of the objections (Sec. 5)
Q: When may the court appoint a commissioner in
expropriation proceedings?
A: Upon the rendition of the order of expropriation,
the court shall appoint not more than three (3)
competent and disinterested persons as
commissioners to ascertain and report to the court
the just compensation for the property sought to
be taken. The order of appointment shall designate
the time and place of the first session of the hearing
to be held by the commissioners and specify the
time within which their report shall be submitted to
the court (Sec. 5, Rule 67).
Q: When should the commissioner make a report?
A: The court may order the commissioners to
report when any particular portion of the real
estate shall have been passed upon by them, and
may render judgment upon such partial report, and
direct the commissioners to proceed with their
work as to subsequent portions of the property
sought to be expropriated, and may from time to
time so deal with such property. The commissioners
shall make a full and accurate report to the court of
all their proceedings, and such proceedings shall
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
not be effectual until the court shall have accepted
their report and rendered judgment in accordance
with their recommendations. Except as otherwise
expressly ordered by the court, such report shall be
filed within sixty (60) days from the date the
commissioners were notified of their appointment,
which time may be extended in the discretion of
the court. Upon the filing of such report, the clerk
of the court shall serve copies thereof on all
interested parties, with notice that they are allowed
ten (10) days within which to file objections to the
findings of the report, if they so desire (Sec. 7, Rule
67).
i. RIGHTS OF PLAINTIFF UPON JUDGMENT AND
PAYMENT
Q: What are the rights of the plaintiff after
payment?
A: After payment of just compensation, as
determined in the judgment, the plaintiff shall have
the right to enter upon the property expropriated
and to appropriate the same for the public use or
purpose defined in the judgment or to retain
possession already previously made in accordance
with Sec 2, Rule 67.
j. EFFECT OF RECORDING OF JUDGMENT
Q: What is the effect of the recording of the
judgment?
A: When real estate is expropriated, a certified copy
of such judgment shall be recorded in the registry
of deeds of he place in which the property is
situated, and its effect shall be to vest in the
plaintiff the title to the real estate so described for
such public use or purpose (Sec 13, Rule 69).
10. FORECLOSURE OF REAL ESTATE MORTGAGE
Q: What is foreclosure of Real Estate Mortgage
(REM)?
A: It is the remedy used for the satisfaction of any
monetary obligation, which a person owes to
another, by proceeding against the property used
to secure said obligation.
Note: It is commenced by a complaint setting forth the
date and due execution of the mortgage; the names
and residences of the mortgagor and the mortgagee; a
description of the mortgaged property; date of the
note or other documentary evidence of the obligation
secured by the mortgage, the amount claimed to be
unpaid thereon; and the names and residences of all
persons having or claiming an interest in the property
subordinate in right to that of the holder of the
mortgage (Sec. 1).
a. JUDGMENT ON FORECLOSURE FOR PAYMENT
OR SALE
Q: What is judgment on foreclosure?
A: It is the judgment of the court ordering the
debtor to pay within a period not less than 90 days
nor more than 120 days from the entry of judgment
after ascertaining the amount due to the plaintiff
(Sec. 2, Rule 68).
Q: What is foreclosure sale?
A: When the defendant fails to pay the amount of
the judgment within the period specified therein,
the court, upon motion, shall order the property to
be sold in the manner and under the provisions of
Rule 39 and other regulations governing sales of
real estate under executions (Sec.3, Rule 68).
Q: When is the sale of mortgaged property proper
and how must it be brought about?
A: if the mortgagor fails to pay the sum due within
the period (90-120 days) stated by the court in its
judgment, it would be good practice for the
mortgagee to file a motion for the sale of the
mortgaged property because under the Rules, the
court shall order the sale of the property only
upo
otio of the o tgagee se , ule
Note: it has been held that the motion for the sale of
the mortgaged property is non-litigable and may be
made ex parte. After the foreclosure sale has been
effected, the mortgagee should file a motion for the
confirmation of the sale which requires notice and
hearing.
b. SALE OF MORTGAGED PROPERTY
Q: What is the effect of confirmation of the sale?
A: It shall divest the rights in the property of all the
parties to the action and shall vest their rights in
the purchaser, subject to such rights of redemption
as may be allowed by law (Sec 3, Rule 68)
Note: it is said that title vests in the purchaser upon a
valid confirmation of the sale and retroacts to the date
of sale.
c. DISPOSITION OF PROCEEDS OF SALE
Q: How is the disposition of the proceeds of the
sale done?
A: The proceeds of the sale of the mortgaged
property shall, after deducting the costs of the sale,
be paid to the person foreclosing the mortgage, and
when there shall be any balance or residue after
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
151
UST GOLDEN NOTES 2011
paying off the mortgage debt due, the same shall
be paid to junior encumbrances in the order of their
priority. If there be any further balance after paying
them or if there be no junior encumbrances, the
same shall be paid to the mortgagor or any person
entitled thereto (Sec. 4)
On January 10, 2003, GAP filed an ex-parte motion
with the court for the issuance of a writ of
possession to oust Gretchen from the land. It also
filed a deficiency claim for P800,000 against Arlene
and Gretchen. The deficiency claim was opposed
by Arlene and Gretchen.
1.
Q: What claims shall be satisfied from the
proceeds of the public sale of the mortgaged
property (in order)?
A:
2.
Resolve the motion for the issuance of a
writ of possession.
Resolve the deficiency claim of the bank.
A:
1.
2.
3.
4.
Costs incurred in the sale of property;
Claim of the person foreclosing the
property;
Claims of junior encumbrancers in the
order of their priority;
Residue goes to the mortgagor or his
authorized agent, or any other person
entitled to it.
1. In judicial foreclosure by banks such as GAP,
the mortgagor or debtor whose real
property has been sold on foreclosure has
the right to redeem the property within 1
year after the sale (or registration of the
sale). However, under Sec. 47 of the General
Banking Law of 2000, the purchaser at the
auction sale has the right to obtain a writ of
possession after the finality of the order
confirming sale. The motion for writ of
possession, however, cannot be filed ex
parte. There must be a notice of hearing.
2. The deficiency claim of the bank may be
enforced against the mortgage debtor
Arlene, but it cannot be enforced against
Gretchen, the owner of the mortgaged
property, who did not assume personal
liability of the loan. (2003 Bar Question)
d. DEFICIENCY JUDGMENT
Q: What is deficiency judgment?
A: It is the judgment rendered by the court holding
the defendant liable for any unpaid balance due to
the mortgagee if the proceeds from the foreclosure
sale do not satisfy the entire debt.
Q: What are the instances when the court cannot
render deficiency judgment?
A: where the debtor-mortgagor is a non-resident
and who at the time of the filing of the action for
foreclosure and during the pendency of the
proceedings was outside the Philippines, then it is
not procedurally feasible. It is by nature in
personam and jurisdiction over the person is
mandatory.
Q: Arlene borrowed P1 million from GAP Bank
(GAP) secured by the titled land of her friend
Gretchen who, however, did not assume personal
liability for the loan. Arlene defaulted and GAP
filed an action for judicial foreclosure of the real
estate mortgage impleading Arlene and Gretchen
as defendants. The court rendered judgment
directing Arlene to pay the outstanding account of
P1.5 million (principal plus interest) to GAP. No
appeal was taken by Arlene. Arlene failed to pay
the judgment debt within the period specified in
the decision. At the foreclosure sale, the land was
sold to GAP for P1.2 million. The sale was
confirmed by the court, and the confirmation of
the sale was registered with the Registy of Deeds
on January 5, 2002.
(1) INSTANCES WHEN COURT CANNOT RENDER
DEFICIENCY JUDGMENT
Q: What are the instances when the courts cannot
render deficiency judgment?
A: When the:
1.
2.
3.
4.
Case is covered by the Recto Law (Art.
1484, NCC);
Mortgagor is a non-resident and is not
found in the Philippines, unless there is
attachment;
Mortgagor dies, the mortgagee may file
his claim with the probate court under
Sec. 7, Rule 86; and
Mortgagee is a third person but not
solidarily liable with the debtor.
e. JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL
FORECLOSURE
Q: Distinguish judicial
extrajudicial foreclosure.
from
A:
Judicial Foreclosure
Governed by Rule 68
152
foreclosure
Extrajudicial Foreclosure
Governed by Act 3135
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
There is only an equity of
redemption except when
the mortgagee is a bank
Requires court
intervention
Right of redemption
exists
No court intervention
necessary
Mortgagee is given a
special power of attorney
Mortgagee need not be
in the mortgage contract
given a special power of
to foreclose the
attorney.
mortgaged property in
case of default.
Note: A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in which
case, he will be deemed to have waived his right to
proceed against the property in a foreclosure
proceeding. (Movido v. RFC, G.R. No. L-11990, May 29,
1959)
f. EQUITY OF REDEMPTION VERSUS RIGHT OF
REDEMPTION
appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R.
No. 73341, Aug. 21, 1987)
11. PARTITION
Q: What is partition?
A: It is a process of dividing and assigning property
owned in common among the various co-owners
thereof in proportion to their respective interests in
said property.It presupposes the existence of a coownership over a property between two or more
persons. The rule allowing partition originates from
a well-known principle embodied in the Civil Code,
that no co-owner shall be obliged to remain the coownership. Because of this rule, he may demand at
any time the partition of the property owned in
common (Art. 494).
Note: It is commenced by a complaint. (Sec.1, Rule 69)
Q: Distinguish equity of redemption from right of
redemption.
Q: What are the requisites of a valid partition?
A:
A:
Equity of Redemption
Right of the defendant
mortgagor to
extinguish the
mortgage and retain
ownership of the
property by paying the
debt within 90-120
days after the entry of
judgment or even after
the foreclosure sale
but prior to
confirmation
Governed by Rule 68
Right of Redemption
Right of the debtor, his
successor in interest or any
judicial creditor or judgment
creditor of said debtor or
any person having a lien on
the property subsequent to
the mortgage or deed of
trust under which the
property is sold to redeem
the property within 1 year
from the registration of the
“heriff’s ertifi ate of
foreclosure sale
Governed by Secs. 29-31,
Rule 39
Note: There is no right of redemption in judicial
foreclosure sale after the confirmation of sale except
those granted by banks or banking institutions in favor
of non-judicial persons as provided by the General
Banking Act (Government Insurance System v. CFI of
Iloilo, G.R. No. 45322, July 5, 1989).
In extrajudicial foreclosure, the mortgagor has the
right to redeem the property within one year from the
registration of the deed of sale. However, Sec. 47 of
the General Banking Act provides that in case of
extrajudicial foreclosure, juridical persons shall have
the right to redeem the property until, but not after,
the registration of the certificate of foreclosure sale
which in no case shall be more than 3 months after
foreclosure, whichever is earlier.
The pendency of the action stops the running of the
right of redemption. Said right continues after
perfection of an appeal until the decision of the
1.
2.
3.
Right to compel the partition;
Complaint must state the nature and
extent of plaintiff's title and a description
of the real estate of which partition is
demanded; and
All other persons interested in the
property must be joined as defendants
(Sec. 1, Rule 69)
a. WHO MAY FILE A COMPLAINT; WHO SHOULD BE
MADE DEFENDANT
Q: Who may file and who should be made
defendants?
A: The action shall be brought by the person who
has a right to compel the partition of real estate
(Sec. 1, Rule 69) or of an estate composed of
personal property, or both real and personal
property (Sec. 13, Rule 69). The plaintiff is a person
who is supposed to be a co-owner of the property
or estate sought to be partitioned. The defendants
are all the co-owners.
Q: What is the effect of non-inclusion of a coowner in an action for partition?
A:
1.
2.
Before judgment – not a ground for a
motion to dismiss. The remedy is to file a
motion to include the party.
After judgment – makes the judgment
therein void because co-owners are
indispensable parties.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
153
UST GOLDEN NOTES 2011
Note: Creditors or assignees of co-owners may
intervene and object to a partition affected without
their concurrence. But they cannot impugn a partition
already executed unless there has been fraud or in
case it was made notwithstanding a formal opposition
presented to prevent it. (Sec. 12, Rule 69)
b. MATTERS TO ALLEGE IN THE COMPLAINT FOR
PARTITION
Q: What are the matters to be alleged in the
complaint for partition?
A: The plaintiff shall state in his complaint, the
nature and extent of his title, an adequate
description of the real estate of which partition is
demanded, and shall join as defendants all other
persons interested in the property (Sec. 1, Rule 69).
He must also include a demand for the accounting
of the rents, profits and other income from the
property which he may be entitled to. These cannot
be demanded in another action because they are
parts of the cause of action for partition. They will
be barred if not set up in the same action pursuant
to the rule against splitting a single cause of action.
c. TWO (2) STAGES IN EVERY ACTION FOR
PARTITION
Q: What are the two aspects of partition
proceedings?
A:
1.
2.
Existence of co-ownership; and
Accounting or how to actually partition
the property.
Note: During the trial, the court shall determine
whether or not the plaintiff is truly a co-owner and
there is co-ownership and that partition is not legally
proscribed, the court will issue an order of partition. It
directs the parties to partition the property by proper
instruments of conveyance, if they agree among
themselves.
If they do agree, the court shall then confirm the
partition so agreed and such is to be recorded in the
registry of deeds of the place in which the property is
situated (Sec 2, Rule 69). There always exist the
possibility that the parties are unable to agree on the
partition. Thus, the next stage is the appointment of
commissioners.
Q: What are the stages in an action for partition
which could be the subject of appeal?
A:
1.
154
Order determining the propriety of the
partition
2.
3.
Judgment as to the fruits and income of
the property
Judgment of partition (Riano, Civil
Procedure: A Restatement for the Bar, p.
596, 2009 ed.)
d. ORDER OF PARTITION AND PARTITION BY
AGREEMENT
Q: What is an order of partition?
A: The order of partition is one that directs the
parties or co-owners to partition the property
Q: When does the court issue the order of
partition?
A: During the trial, the court shall determine
whether or not the plaintiff is truly a co-owner of
the property, that there is indeed a co-ownership
among the parties, and that a partition is not legally
proscribed thus may be allowed. If the court so
finds that the facts are such that a partition would
be in order, and that the plaintiff has a right to
demand partition, the court will issue an order of
partition.
Note: The court shall order the partition of the
property among all the parties in interest, if after trial
it finds that the plaintiff has the right to partition (Sec.
2, Rule 69). It was held that this order of partition
including an order directing an accounting is final and
not interlocutory and hence, appealable; thus,
revoking previous contrary rulings on the matter. A
final order decreeing partition and accounting may be
appealed by any party aggrieved thereby.
Q: When is partition by agreement proper?
A: The parties may make the partition among
themselves by proper instruments of conveyance, if
they agree among themselves. If they do agree, the
court shall then confirm the partition so agreed
upon by all of the parties, and such partition,
together with the order of the court confirming the
same, shall be recorded in the registry of deeds of
the place in which the property is situated (Sec. 2,
Rule 69).
e. PARTITION BY COMMISSIONERS; APPOINTMENT
OF COMMI““IONER“, COMMI““IONER’“ REPORT;
COURT ACTION UPON COMMI““IONER’“ REPORT
Q: Can the appointment of commissioners be
dispensed with in an action for partition?
A: The appointment of commissioners is mandatory
unless there is an extrajudicial partition between
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
the parties. They have the power to effect the
partition but not to inquire into question of
ownership or possession
Note: if parties cannot agree, the court shall appoint
not more than 3 commissioners of competent and
disinterested persons to make partition. They shall
make full and accurate report to the court of all their
proceedings as to the partition. Upon the filing of such
report, copies of which shall be served to the clerk of
court upon all interested parties with notice that they
are allowed 10 days within which to file objections to
the findings of the report, if they so desire.
The court may upon hearing accept the report and
render judgment in accordance with the same, may
recommit to the commissioners for further
proceedings, or reject the report and render judgment
that shall effectuate a fair and just partition.
A; The provisions of this Rule shall apply to
partitions of estates composed of personal
property, or of both real and personal property, in
so far as the same may be applicable (Sec. 13, Rule
69).
h. PRESCRIPTION OF ACTION
Q: What is the rule on prescription in an action of
partition?
A: Prescription of action does not run in favor of a
co-owner or co-heir against his co-owner or coheirs as long as there is a recognition of the coownership expressly or impliedly (Art. 494). Also,
the action for partition cannot be barred by
prescription
12. FORCIBLE ENTRY AND UNLAWFUL DETAINER
f. JUDGMENT AND ITS EFFECTS
a. DEFINITIONS AND DISTINCTION
Q: What should the judgment contain and its
effects?
A: The judgment shall state definitely, by metes and
bounds and adequate description, the particular
portion of the real estate assigned to each party,
the effect of the judgment shall be to vest in each
party to the action in severalty the portion of the
real estate assigned to him. A certified copy of the
judgment shall in either case be recorded in the
registry of deeds of the place in which the real
estate is situated, and the expenses of such
recording shall be taxed as part of the costs of the
action (Sec. 11, Rule 69).
a. If the whole property is assigned to one of the
parties upon his paying to the others the sum or
sums ordered by the court, the judgment shall state
the fact of such payment and of the assignment of
the real estate to the party making the payment,
and the effect of the judgment shall be to vest in
the party making the payment the whole of the real
estate free from any interest on the part of the
other parties to the action.
b. If the property is sold and the sale confirmed by
the court, the judgment shall state the name of the
purchaser or purchasers and a definite description
of the parcels of real estate sold to each purchaser,
and the effect of the judgment shall be to vest the
real estate in the purchaser or purchasers making
the payment or payments, free from the claims of
any of the parties to the action.
g. PARTITION OF PERSONAL PROPERTY
Q: What is the rule on partition of personal
property?
Q: What is forcible entry?
A: It is entry effected by force, intimidation, threat,
strategy, or stealth; the action is to recover
possession founded upon illegal possession from
the beginning.
Note: It is commenced by a verified complaint. (Sec. 1)
Q: What are the requisites of a valid forcible
entry?
A:
1.
2.
A person is deprived of possession of any
land or building by force, intimidation,
threat, strategy, or stealth; and
Action is brought within 1 year from the
unlawful deprivation. (Sec. 1)
Q: What are the questions to be resolved in an
action for forcible entry?
A:
1.
2.
3.
Who has actual possession over the real
property;
Was the possessor ousted therefrom
within one year from the filing of the
complaint by force, intimidation, strategy,
threat or stealth; and
Does the plaintiff ask for the restoration
of his possession (Dizon v. Concina, G.R.
No. 23756, Dec. 27, 1969)
Q: What is unlawful detainer?
A: It is unlawful detention by a person who has
acquired possession rightfully, but who detains the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
155
UST GOLDEN NOTES 2011
property after the right to keep possession has
ended.
force, intimidation,
strategy, threat
or stealth.
Note: It is commenced by a verified complaint. (Sec. 1)
No previous demand for
the defendant to vacate
the premises is necessary.
Q: What are the requisites of a valid unlawful
detainer?
A:
1.
2.
3.
Possession of any land or building is
unlawfully withheld from a lessor, vendor,
vendee, or other person after the
expiration or termination of the right to
hold possession by virtue of any contract
express or implied;
Action is brought within 1 year after such
unlawful deprivation or withholding of
possession; and
Demand to pay or comply with the
conditions of the lease and to vacate is
made upon the lessee. (Sec. 1)
Q: Is formal contract a prerequisite in unlawful
detainer?
A: The existence of a formal contract is not
necessary in unlawful detainer. Even if there is no
formal contract between the parties, there can still
be an unlawful detainer because implied contracts
are covered by ejectment proceedings. Possession
by tolerance creates an implied promise to vacate
the premises upon the demand of the owner (Peran
v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983).
Q: Does the amount of rents and damages prayed
for in an action for forcible entry and unlawful
detainer affect the jurisdiction of the courts?
A: No. The amount of rents and damages claimed
does not affect jurisdiction of the MTCs because the
same are only incidental or accessory to the main
action (Lao SengHian v. Lopez, G.R. No. L-1950, May
16, 1949).
Note: If only rents or damages are claimed in an
ordinary action, the action is personal and the amount
claimed determines whether it falls within the
jurisdiction of the RTC or the MTC.
Q: Distinguish forcible entry from unlawful
detainer.
A:
Forcible Entry
(Detentacion)
Possession of the land by
the defendant is unlawful
from the beginning as he
acquires possession by
156
Unlawful Detainer
(Desahucio)
Possession is inceptively
lawful but it becomes
illegal by reason of the
termination of his right to
the possession of the
property under his
contract with the plaintiff.
Demand is jurisdictional if
the ground is nonpayment of rentals or
failure to comply with the
lease contract.
The plaintiff must prove
that he was in prior
The plaintiff need not
physical possession of the
have been in prior physical
premises until he was
possession.
deprived thereof by the
defendant.
The 1 year period is
Period is counted from the
generally counted from
date of last demand or last
the date of actual entry on
letter of demand.
the land.
b. DISTINGUISHED FROM ACCION PUBLICIANA
AND ACCION REINVINDICATORIA
Q: What are the possessory actions on real
property?
A:
Accion
Interdictal
Summary
action for the
recovery of
physical
possession
where the
disposses-sion
has not lasted
for more than
1 year.
All cases of
forcible entry
and unlawful
detainer
irrespective of
the amount of
damages or
unpaid rentals
sought to be
recovered
should be
brought to the
MTC.
Accion
Publiciana
Accion
Reinvindicatoria
A plenary action
for the recovery
of the real right
of possession
when the
dispossession
has lasted for
more than 1
year.
An action for the
recovery of
ownership,
which
necessarily
includes the
recovery of
possession.
RTC has
jurisdiction if
the value of the
property
exceeds
P20,000 or
P50,000 in
Metro Manila.
RTC has
jurisdiction if the
value of the
property
exceeds P20,000
or P50,000 in
Metro Manila.
MTC has
jurisdiction if
the value of the
property does
not exceed the
above amounts.
MTC has
jurisdiction if the
value of the
property does
not exceed the
above amounts.
Note: Forcible entry and unlawful detainer actions are
summary in nature designed to provide for an
expeditious means of protecting actual possession or
the right to possession of the property involved
(Sudaria v..Quiambao, GR No. 164305, November 20,
2007)
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
Q: What rule should govern the proceedings of
accion interdictal?
A:
GR: Ejectment cases are summary proceedings
intended to provide an expeditious means of
protecting actual possession or right to
possession of property.
XPN: When the decision of the MTC is appealed
to the RTC, the applicable rules are those of the
latter court (Refugia v. CA, G.R. No. 118284, July
5, 1996).
c. JURISDICTION IN ACCION PUBLICIANA AND
ACCION REINVINDICATORIA
Q: In which court accion publiciana and accion
reinvindicatoria filed?
A: The actions of forcible entry and unlawful
detainer are within the exclusive and original
jurisdiction of the MTC, MeTC and MCTC (Sec.
33[2], BP 129; RA 7691) and shall be governed by
the rules on summary procedure irrespective of the
amount of damages or rental sought to be
recovered (Sec. 3, Rule 70).
d. WHO MAY INSTITUTE THE ACTION AND WHEN;
AGAINST WHOM THE ACTION MAY BE
MAINTAINED
Q: Who may institute the action?
A: Subject to the provisions of the next succeeding
section, a person deprived of the possession of any
land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or
other person against whom the possession of any
land or building is unlawfully withheld after the
expiration or termination of the right to hold
possession, by virtue of any contract, express or
implied, or the legal representatives or assigns of
any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such
unlawful deprivation or withholding of possession,
bring an action in the proper Municipal Trial Court
against the person or persons unlawfully
withholding or depriving of possession, or any
person or persons claiming under them, for the
restitution of such possession, together with
damages and costs (Sec. 1, Rule 70).
e. PLEADINGS ALLOWED
Q: What are the pleadings allowed?
A: The only pleadings allowed to be filed are the
complaint, compulsory counterclaim and crossclaim pleaded in the answer, and the answers
thereto. All pleadings shall be verified (Sec. 4, Rule
70).
f. ACTION ON THE COMPLAINT
Q: What action will the court make upon receipt of
the complaint?
A: The court may, from an examination of the
allegations in the complaint and such evidence as
may be attached thereto, dismiss the case outright
on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for
dismissal is found, it shall forthwith issue summons
(Sec. 5, Rule 70).
g. WHEN DEMAND IS NECESSARY
Q: When is demand necessary?
A: Unless there exists a stipulation to the contrary,
an unlawful detainer case shall be commenced only
after the demand to pay or comply with the
conditions of the lease and to vacate is made upon
the lessee (Sec. 2). The requirement for a demand
implies that the mere failure of the occupant to pay
rentals or his failure to comply with the conditions
of the lease does not ipso facto render his
possession of the premises unlawful. It is the failure
to comply with the demand that vests upon the
lessor a cause of action.
Q: In what form should the demand be made?
A: The demand may be in the form of a written
notice served upon the person found in the
premises. The demand may also be made by
posting a written notice on the premises if no
person can be found thereon (Sec. 2). It has been
ruled, however, that the demand upon a tenant
may be oral (Jakihaca vs. Aquino, 181 SCRA 67).
Sufficient evidence must be adduced to show that
there was indeed a demand like testimonies from
disinterested and unbiased witnesses.
h. PRELIMINARY INJUNCTION AND PRELIMINARY
MANDATORY INJUNCTION
Q: Can the court grant injunction while the case is
pending?
A: The court may grant preliminary injunction, in
accordance with the provisions of Rule 58, to
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
157
UST GOLDEN NOTES 2011
prevent the defendant from committing further
acts of dispossession against the plaintiff. A
possessor deprived of his possession through
forcible entry or unlawful detainer may, within five
(5) days 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).
i. RESOLVING DEFENSE OF OWNERSHIP
Q: In what instances may the court resolve issue of
ownership?
A: When the defendant raises the issue of
ownership, the court may resolve the issue of
ownership only under the following conditions:
(a)
When the issue of possession cannot be
resolved without resolving the issue of ownership;
and
(b) The issue of ownership shall be resolved only
to determine the issue of possession (Sec. 16).
Note: The assertion by the defendant of ownership
over the disputed property does not serve to divest
the inferior court of its jurisdiction. The defendant
cannot deprive the court of jurisdiction by merely
claiming ownership of the property involved (Rural
Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742;
Perez vs. Cruz, 404 SCRA 487).If the defendant raises
the question of ownership and the issue of possession
cannot be resolved without deciding the question of
ownership, the issue of ownership shall be resolved
only to determine the issue of possession (Sec. 3, RA
7691).
j. HOW TO STAY THE IMMEDIATE EXECUTION OF
JUDGMENT
Q: How is the execution of judgment stayed?
A: Defendant must take the following steps to stay
the execution of the judgment:
1. Perfect an appeal;
2. File a supersedeas bond to pay for the rents,
damages and costs accruing down to the time of
the judgment appealed from; and
3. Deposit periodically with the RTC, during the
pendency of the appeal, the adjudged amount of
rent due under the contract or if there be no
contract, the reasonable value of the use and
occupation of the premises (Sec. 19, Rule 70).
158
k. SUMMARY PROCEDURE; PROHIBITED
PLEADINGS
Q: What is the nature of an action for forcible
entry and unlawful detainer?
A: Forcible entry and unlawful detainer actions are
summary in nature designed to provide for an
expeditious means of protecting actual possession
or the right to possession of the property involved
(Tubiano vs. Riazo, 335 SCRA 531). These action
shall both fall under the coverage of the Rules of
Summary Procedure irrespective of the amount of
damages or unpaid rental sought to be recovered
(Sec. 3, Rule 70).
Q: What are the prohibited pleadings and motion
under Rule 70?
A: Prohibited pleadings and motions:
1.
Motion to dismiss the complaint except
on the ground of lack of jurisdiction over
the subject matter, or failure to comply
with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
8. Motion to declare the defendant in
default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions
13. CONTEMPT
Q: What is contempt?
A: It is a defiance of the authority, justice or dignity
of the court; such conduct as tends to bring the
authority and administration of the law into
disrespect or to interfere with, or prejudice litigant
or their witnesses during litigation (Halili v. CIR, G.R.
No. L-24864, Nov. 19, 1985)
Note: It is commenced by a verified petition with
supporting particulars and certified true copies of
documents or papers involved therein (Sec. 4).
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
d.
a. KINDS OF CONTEMPT
e.
Q: What are the kinds of contempt?
A:
1.
2.
f.
Direct or indirect, according to the
manner of commission.
Civil or Criminal, depending on the nature
and effect of the contemptuous act.
g.
Q: Distinguish direct from indirect contempt?
A:
Direct Contempt
Committed in the presence
of or so near a court.
Summary in nature
If committed against:
1. RTC – fine not
exceeding P2,000 or
imprisonment
not
exceeding 10 days or
both.
2. MTC – fine not
exceeding P200 or
imprisonment
not
exceeding 1 day, or
both.
Remedy:Certiorari or
prohibition
Contempt in facie curiae
Indirect Contempt
Not committed in the
presence of the court.
Punished after being
charged and heard
IF COMMITTED AGAINST:
1. RTC – FINE NOT
EXCEEDING P30,000
OR IMPRISONMENT
NOT EXCEEDING 6
MONTHS OR BOTH
2.
MTC – fine not
exceeding P5,000
or imprisonment
not exceeding 1
month or both
Remedy: Appeal (by
notice of appeal)
Constructive contempt
Failure to obey a subpoena duly
served.
Assuming to be an attorney or an
officer of the court without
authority.
Rescue or attempted rescue, of a
person or property in the custody of
an officer.
Any improper conduct tending to
degrade the administration of justice
(Sec. 3)
Q: Distinguish criminal contempt from civil
contempt.
A:
Criminal Contempt
Civil Contempt
Punitive in nature
Remedial in nature
Purpose is to
p ese e the ou t s
authority and to
punish disobedience
of its orders
Purpose is to provide a
remedy for an injured suitor
and to coerce compliance
with an order for the
preservation of the rights of
private persons
Intent is necessary
Intent is not necessary
State is the real
prosecutor
Instituted by the aggrieved
party or his successor or
someone who has pecuniary
interest in the right to be
protected
Proof required is
proof beyond
reasonable doubt.
Proof required is more than
mere preponderance of
evidence
If accused is
acquitted, there can
be no appeal.
If judgment is for
respondent, there can be an
appeal
Q: What are the grounds of contempt?
A:
1.
2.
Direct contempt
a. Misbehavior in the presence of or so
near a court as to obstruct or
interrupt the proceedings
b. Disrespect towards the court
c. Offensive
personalities
toward
others; or
d. Refusal to be sworn or to answer as
a witness, or to subscribe an affidavit
or deposition when lawfully required
to do so (Sec. 1)
Indirect contempt
a. Misbehavior of an officer of a court
in the performance of his official
duties or in his official transactions;
b. Abuse or any unlawful interference
with
the
proceedings
not
constituting direct contempt.
c. Disobedience of or resistance to a
lawful writ, process, order, or
judgment of a court or unauthorized
intrusion to any real property after
being ejected.
Q: Lawyer Mendoza, counsel for the accused in a
criminal case, was cited for direct contempt by
Judge Tagle and was sentenced to 10 days
imprisonment. Lawyer Mendoza was placed in
prison immediately. Lawyer Mendoza manifested
his readiness to post a bond and to appeal the
order by certiorari to stay its execution but Judge
Tagle said that the order is immediately executory.
Is Judge Tagle correct?
A: No. An order of direct contempt is not
immediately executory or enforceable. The
contemner must be afforded a reasonable remedy
to extricate or purge himself of the contempt.
Under Sec. 2, Rule 71, of the Rules of Court, a
person adjudged in direct contempt by any court
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
159
UST GOLDEN NOTES 2011
may not appeal therefrom, but may avail himself of
the remedies of certiorari or prohibition. The
execution of the judgment shall be suspended
pending resolution of such petition, provided such
person files a bond fixed by the court which
rendered the judgment and conditioned that he will
abide by and perform the judgment should the
petition be decided against him (Tiongco v. Judge
Salao, A.M. No. RTJ-06-2009, July 27, 2006).
b. PURPOSE AND NATURE OF EACH
Q: What is the purpose of the power to contempt?
A: The reason for the power to punish for contempt
is that respect of the courts guarantees the stability
of their institution. Without such guarantee, said
institution would be resting on shaky foundation
(Cornejovs.Tan, 85 Phil. 772).
Q: What is the nature of contempt power?
A: The power to punish for contempt is inherent in
all courts; its existence is essential to the
preservation of order in judicial proceedings and to
the enforcement of judgments, orders and
mandates of the courts, and, consequently, to the
due administration of justice.
Q: What are the dual aspects on the power to
punish contempt?
A:
1.
2.
Primarily, the proper punishment of the
guilty party for his disrespect to the
courts; and
Secondarily, his compulsory performance
of some act or duty required of him by the
court and which he refuses to perform.
c. REMEDY AGAINST DIRECT CONTEMPT; PENALTY
Q: What is theremedy against direct contempt and
its penalty?
A:
1.
160
The penalty for direct contempt depends upon
the court which the act was committed;
a. If the act constituting direct
contempt was committed against an
RTC or a court of equivalent or
higher rank, the penalty is a fine not
exceeding
2,000
pesos
or
imprisonment not exceeding 10
days, or both;
b. If the act constituting direct
contempt was committed against a
2.
lower court, the penalty is a fine not
exceeding
200
pesos
or
imprisonment not exceeding one (1)
day, or both (Sec. 1) ;
c. If the contempt consists in the
refusal or omission to do an act
which is yet within the power of the
respondent to perform, he may be
imprisoned by order of the court
concerned until he performs it.
A person adjudged in direct contempt may not
appeal therefrom. His remedy is a petition for
certiorari or prohibition directed against the
court which adjudged him in direct contempt
(Sec. 2). Pending the resolution of the petition
for certiorari or prohibition, the execution of
the judgment for direct contempt shall be
suspended. The suspension however shall take
place only if the person adjudged in contempt
files a bond fixed by the court which rendered
the judgment. This bond is conditioned upon
his performance of the judgment should the
petition be decided against him.
d. REMEDY AGAINST INDIRECT CONTEMPT;
PENALTY
Q: What is theremedy against indirect contempt
and its penalty?
A:
1. The punishment for indirect contempt depends
upon the level of the court against which the act
was committed;
(a)
Where the act was committed
against an RTC or a court of equivalent or
higher rank, he may be punished by a fine
not exceeding 30,000 pesos or
imprisonment not exceeding 6 months, or
both;
(b)
Where the act was committed
against a lower court, he may be
punished by a fine not exceeding 5,000
pesos or imprisonment not exceeding one
month, or both. Aside from the applicable
penalties, if the contempt consists in the
violation of a writ of injunction, TRO or
status quo order, he may also be ordered
to make complete restitution to the party
injured by such violation of the property
involved or such amount as may be
alleged and proved (Sec. 7);
(c)
Where the act was committed
against a person or entity exercising
quasi-judicial functions, the penalty
imposed shall depend upon the provisions
of the law which authorizes a penalty for
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
contempt against such persons or
entities.
(2) The person adjudged in indirect contempt
may appeal from the judgment or final order of the
court in the same manner as in criminal cases. The
appeal will not however have the effect of
suspending the judgment if the person adjudged in
contempt does not file a bond in an amount fixed
by the court from which the appeal is taken. This
bond is conditioned upon his performance of the
judgment or final order if the appeal is decided
against (Sec. 11).
e. HOW CONTEMPT PROCEEDINGS ARE
COMMENCED
Q: How may an action for indirect contempt be
commenced?
A:
1.
2.
By order or other formal charge by the
court requiring the respondent to show
cause why he should not be punished for
contempt (motuproprio); or
By a verified petition with supporting
particulars and certified true copies of the
necessary documents and papers
(independent action) (Sec. 4).
Note: The first procedure applies only when the
indirect contempt is committed against a court or
judge possessed and clothed with contempt powers.
The second mode applies if the contemptuous act was
committed not against a court or a judicial officer with
authority to punish contemptuous acts. (Nazareno v.
Barnes, G.R. No. L-59072, Apr. 25, 1984)
The court does not declare the respondent in default
since the proceeding partakes the nature of a criminal
prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct.
28, 1982).
Q: What are the procedural requisites before the
accused may be punished for indirect contempt?
A:
1.
2.
3.
A charge in writing to be filed;
An opportunity for the person charged to
appear and explain his conduct; and
To be heard by himself or counsel.
(Regalado v. Go, G.R. No. 167988, Feb. 6,
2007)
NOTE: The rules on contempt under Rule 71 apply to
contempt committed against persons or entities
exercising quasi-judicial functions or in case there are
rules for contempt adopted for such bodies or entities
pursuant to law, Rule 71 shall apply suppletorily (Sec
12, Rule 71)
Quasi-judicial bodies that have the power to cite
persons for indirect contempt pursuant to Rule 71 of
the Rules of Court can only do so by initiating them in
the proper RTC. It is not within their jurisdiction and
competence to decide the indirect contempt cases.
Q: May a non-party be held for contempt?
A: No, unless he is guilty of conspiracy with any one
of the pa ties i
iolati g the ou t s o de s
(DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30,
1982).
Q: Ray, through Atty. Velasco, filed a complaint for
quieting of title against Chiz. Chiz, however,
interposed the defense that the documents relied
upon by Ray and Atty. Velasco were forged and
falsified. Finding that the said documents were
indeed forged and falsified, Judge Victoria cited
Ray and Atty. Velasco for direct contempt and
ordered them to serve 10 days of detention at the
Municipal Jail. Ray and Atty. Velasco filed a
motion for bail and a motion to lift the order of
arrest. But they were denied outright by Judge
Victoria. Is Judge Victoria correct?
A: No. Direct contempt is a contumacious act done
facie curiae and may be punished summarily
without hearing. Indirect or constructive contempt,
in turn, is one perpetrated outside of the sitting of
the court.
Here the use of falsified and forged documents is a
contumacious act. However, it constitutes indirect
contempt not direct contempt. The imputed use of
a falsified document, more so where the falsity of
the document is not apparent on its face, merely
constitutes indirect contempt, and as such is
subject to such defenses as the accused may raise
in the proper proceedings. Thus, following Sec. 3,
Rule 71, acontemner may be punished only after a
charge in writing has been filed, and an opportunity
has been given to the accused to be heard by
himself and counsel.
Moreover, settled is the rule that a contempt
proceeding is not a civil action, but a separate
proceeding of a criminal nature in which the court
exercises limited jurisdiction. Thus, the modes of
procedure and the rules of evidence in contempt
proceedings are assimilated as far as practicable to
those adapted to criminal prosecutions. Thus, the
judge erred in declaring summarily that Ray and
Judge Velasco are guilty of direct contempt and
ordering their incarceration. He should have
conducted a hearing with notice to Ray and Judge
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
161
UST GOLDEN NOTES 2011
Velasco Judge Espa ol
150949, June 21, 2007).
. For oso, G.R. No.
g. WHEN IMPRISONMENT SHALL BE IMPOSED
Q: When shall imprisonment be imposed?
f. ACTS DEEMED PUNISHABLE AS INDIRECT
CONTEMPT
Q: What are the acts which are deemed
punishable as indirect contempt?
A:After a charge in writing has been filed, and an
opportunity given to the respondent to comment
thereon within such period as may be fixed by the
court and to be heard by himself or counsel, a
person guilty of any of the following acts may be
punished for indirect contempt:
1.
2.
3.
4.
5.
6.
7.
Misbehavior an officer of a court in the
performance of his official duties or in his
official transactions;
Disobedience of or resistance to a lawful
writ, process, order, or judgment of a
court, including the act of a person who,
after being dispossessed or ejected from
any real property by the judgment or
process of any court of competent
jurisdiction, enters or attempts or induces
another to enter into or upon such real
property, for the purpose of executing
acts of ownership or possession, or in any
manner disturbs the possession given to
the person adjudged to be entitled
thereto;
Any abuse of or any unlawful interference
with the processes or proceedings of a
court not constituting direct contempt
under section 1 of this Rule;
Any improper conduct tending, directly or
indirectly, to impede, obstruct, or
degrade the administration of justice;
Assuming to be an attorney or an officer
of a court, and acting as such without
authority;
Failure to obey a subpoena duly served;
The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of
a court held by him (Sec. 3).
A: When the contempt consists in the refusal or
omission to do an act which is yet in the power of
the respondent to perform, he may be imprisoned
by order of the court concerned until he performs
it. Indefinite incarceration may be resorted to
where the attendant circumstances are such that
the non-compliance with the court order is an utter
disregard of the authority of the court which has
then no other recourse but to use its coercive
power. When a person or party is legally and validly
required by a court to appear before it for a certain
purpose, and when that requirement is disobeyed,
the only remedy left for the court is to use force to
bring the person or party before it.
Note: The punishment is imposed for the benefit of a
complainant or a party to a suit who has been injured
aside from the need to compel performance of the
orders or decrees of the court, which the contemnor
refuses to obey although able to do so. In effect, it is
within the power of the person adjudged guilty of
contempt to set himself free.
h. CONTEMPT AGAINST QUASI-JUDICIAL BODIES
Q: What is the rule on contempt against quasijudicial bodies?
A: The rules on contempt apply to contempt
committed against persons or entities exercising
quasi-judicial functions or in case there are rules for
contempt adopted for such bodies or entities
pursuant to law, Rule 71 shall apply suppletorily.
Quasi-judicial bodies that have the power to cite
persons for indirect contempt can only do so by
initiating them in the proper RTC. It is not within
their jurisdiction and competence to decide the
indirect contempt cases. The RTC of the place
where contempt has been committed shall have
jurisdiction over the charges for indirect contempt
that may be filed (Sec. 12).
Note: Failure by counsel to inform the court of the
death of his client constitutes indirect contempt within
the purview of Sec. 3, Rule 71, since it constitutes an
improper conduct tending to impede the
administration of justice.
162
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES